easement of necessity | The Supreme Court rejected the appeal, holding that "easement of necessity" (right of way) can be granted only when there is no other way and not for convenience. 1991 S C M R 119
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| The Supreme Court rejected the appeal, holding that "easement of necessity" (right of way) can be granted only when there is no other way and not for convenience. 1991 S C M R 119 |
Present: Abdul Kadir Shaikh and Zafar Hussain Mirza, JJ
Messrs PAKISTAN WARRANTED WAREHOUSE LTD.‑‑Appellant
versus
Messrs SINDH INDUSTRIAL TRADING ESTATES LTD. and another‑‑Respondents
Civil Appeal No. 138‑K of 1987, decided on 25th April, 1990.
(On appeal from the judgment of the Sindh High Court, dated 5th April, 1987 in Civil Revision No.188 of 1986).
(a) Easements Act (V of 1882)‑‑
‑‑‑‑S.13‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal was granted to examine whether official respondent had no right to treat the disputed land as an independent plot and whether he was not justified in allotting the same to allottee respondent and whether official respondent and allottee respondent were not justified in blocking appellant's means of ingress and exit hitherto enjoyed by him on the disputed land by raising construction thereon.
(b) Easements Act (V of 1882)‑‑
‑‑‑‑S.13‑‑Easement of necessity‑‑Entitlement to‑‑Courts below had concurrently found that appellant had an alternative right of way and that his claim to easement of necessity was not an absolute one‑‑Right of easement being a question of fact had been decided by Courts below against appellant—Appellant had failed to establish his claim of easement of necessity‑‑Contentions raised by appellant being devoid of force, no interference with judgment of High Court on that issue was called for in circumstances.
Pakistan National Oils Limited v. Sattar Muhammad 1980 SCMR 686; Ramadhin Singh v. Jadunandan Singh AIR 1915 Cal. 486; Valina Rama v. Emperor AIR 1928 Lah. 496; Abdullah and another v. Ahmad Khan and others 1988 CLC 1301 and Sheo Nath and others v. Mughla AIR 1938 Lah. 800 ref.
(c) Easements Act (V of 1882)‑‑‑
‑‑‑‑S.13‑‑‑Easement of necessity‑‑‑Meaning, scope and import of‑‑Easement of necessity was an easement without which property could not be used at all‑‑Consideration of reasonable enjoyment of property furnished no test for creation of such right of easement nor would convenience be the test for creation of such right‑‑‑Necessity must be an absolute necessity and not a convenient mode of enjoyment of property‑‑‑Necessity under clause (a) of S.13, Easements Act,. 1882 was not an ordinary necessity but an absolute one.
Mariyayi Animal v. Arundachala Pandaram AIR 1956 Mad. 584; Nawab Zekia Begum v. Lucknow Improvement Trust AIR 1937 Oudh 263; Daw Tint v. Maung Kywr AIR 1935 Rang. 56; Kristnamrazu v. Marrazu 15 MLJ 255; Sheo Nath and others v. Mughla AIR 1938 Lah. 800; Narayana Gajapatraju v. Janaki Rathayyammaji AIR 1930 Mad. 609; Pakistan National Oils Ltd. v. Sattar Muhammad 1980 SCMR 686; Ramadhin Singh v. Jadunandan Singh AIR 1915 Cal. 486; Abdullah and another v. Ahmad Khan and others 1988 CLC 1301 and Chadar and others v. Bala Pershad AIR 1928 Lah. 497 ref.
(d) Words and phrases...
‑‑‑‑Term "Easement of necessity"‑‑‑Explained.
Syed Saghir Hussain Jafri, Advocate Supreme Court and M.S. Ghaury, Advocate‑on‑Record for Appellant.
S.A. Samad Khan, Senior Advocate Supreme Court and Muzaffar Hassan, Advocate‑on‑Record for Respondents.
Date of hearing: 25th April, 1990.
ORDER
ZAFFAR HUSSAIN MIRZA, J.‑‑This appeal arises out of judgment dated 5th April, 1987, by a learned Single Judge of the. Sindh High Court dismissing the civil revision filed by the appellant to call in question the dismissal of his suit.
2. The appellant filed a suit in the Court of Xth Civil Judge, Karachi, for declaration and permanent injunction. The admitted facts are that the appellant has been granted leases by the respondent No.1, Sindh Industrial Trading Estates Limited (hereinafter referred to as "SITE") in their industrial area in respect of 3 plots bearing Nos. B/10, B/11 and B/12 by registered lease deeds. On these three plots the appellant has constructed three separate warehouses where he does the business of warehousing.
3. The case of the appellant, as set out in the plaint was that all these plots were surrounded by public roads of 66 feet width and the dispute in this case relates to the area comprising about 3333 sq. yards which is L shaped and is a part of the road area between Plots Nos. B/10 and B/11, as well as between Plots No. B/11 and B/12 as shown in the sketch Annex. "D" with the plaint. According to the appellant the main gates of his buildings also open in the disputed area, which has been used all along for ingress and egress in respect of the plots demised in favour of the appellant, in that, heavy machinery or scrap, coming in or going out of the warehouses, is transported over the disputed area by means of trucks, as well as, at times cranes are used for loading and unloading goods.
4. On these averments the appellant claimed right of way as an easement of necessity as provided by section 13(a) of the Easements Act. In the plaint as originally filed, he claimed the relief of declaration to the effect that the disputed area cannot be leased out by SITE to any person, but has to be left for use as before by the general public and the appellant for the purpose of enjoyment of his leasehold properties. In the alternative the appellant claimed that if the said area is open for allotment, the appellant company was alone entitled to its allotment. Consequential relief of permanent injunction was also prayed for.
5. After being aware that the disputed area was already transferred by the SITE in favour of respondent No.2 company, the plaint was amended, seeking prayer for cancellation of lease executed in favour of respondent No.2 and consequential relief of permanent injunction restraining respondents 1 and 2 from raising construction over the disputed land.
6. The SITE respondent No.1 contested the suit and in its written statement repudiated the claim of the appellant that the plot in question was a part of the public road. They asserted that the plot was available for allotment as an industrial plot and accordingly it was duly allotted to Mst. Zeenat Zari Industries Limited, respondent No.2, which was approved by the Board of Directors of respondent No.1. It was further pleaded by the respondent that the appellant itself applied for allotment of this very disputed piece of land by characterising it, "as land lying unutilized" between the plots demised to it. According to them it was only when the plot was allotted to respondent'No.2 the plaintiffs turned round and asserted the same to be a public road. Respondent No.1 also denied the claim of the appellant that they had a right of way over the disputed land by way of easement of necessity, as according to them the property demised to the appellant had separate access from the road abutting the plots on the other side.
Respondent No.2 had also filed a written statement denying the claim of the appellant and setting up pleas in defence on the same lines as pleaded by respondent No.1.
On the pleadings of the parties a number of issues of fact and law were drawn up by the trial Court but for the present purposes the relevant three issues were as follows:‑‑
"(1) Whether the plaintiffs have any alternate approach to the plots No.S‑10, S: 11 and S.12. If so can they claim easementary right, in respect of Plot No.S. 96?
(2) Whether the space in between Plots No.S.10 and. S‑11 of the plaintiffs is a matter of absolute necessity for the business of the plaintiffs?
(3) Whether the suit property (S‑96) is a public road or land specified for the industrial purpose?'
7. On the evidence adduced by the parties the trial Court dealt with the aforesaid three issues together alongwith some other issues. It was held by the trial Court that although the site inspection revealed that Plots No.S‑10, S‑11 and S‑12 have their gates on the road sides but two of the plots, namely, Plots No.S‑10 and S‑12 had also their gates opening towards the land in dispute. The finding of the trial Court was that the appellant has alternate access from the public road directly to all the three plots, although as pointed out in respect of the two plots they also had opened gates towards the disputed land. Reference was made to clause 5(iii) of the lease‑deed executed by the appellant which specifically stipulated that the appellant would not be entitled to claim any right of any sort over the adjoining land belonging to respondent No.1.
8. In the light of the evidence on record the trial Court reached the finding that the appellant had not established a right of way by easement of necessity in view of the alternate access to their property proved from the evidence. In respect of issue No.3 also the trial Court came to the finding that the land in dispute was not a part of the road area. In this regard it was pointed out that except the solitary oral assertion of the appellant's Manager and Director no other evidence was brought on record to prove the existence of the road. Reference was made to appellant's witness Muhammad Ali, Estate Engineer of the SITE, Karachi, who had specifically stated that the area in dispute was not left open for purpose of public road or passage or approach. The trial Court referred to his assertion that the land in dispute was a plot meant for industrial purpose and the appellant itself had applied for allotment of this plot and nowhere in the correspondence of the appellant with respondent No.1 the disputed land was described as road area. In view of the decision and conclusions arrived at by the trial Court on the aforesaid issues and other issues, the suit was dismissed vide judgment and decree, dated 25th April,1985.
9. The appeal filed by the appellant also failed as it was dismissed by the learned District Judge who affirmed the findings recorded by the trial Court. Ultimately the appellant challenged the judgments and decrees passed by the Courts below through civil revision before the Sindh High Court, which teas dismissed by the impugned judgment in this appeal.
10. Leave was granted in this case in order to examine whether the respondent No.1 had no right in treating the disputed land as an independent plot and whether respondent No.1 was not justified in allotting the same to respondent No.2; and whether respondents 1 and 2 are not justified in blocking appellant's means of ingress and exit hitherto enjoyed by it on the disputed land by raising construction thereon.
11. Mr. S. Saghir Hussain Jafry, learned counsel for the appellant contended that the appellant cannot use the means of access from the road due to the nature of the construction on its plot which was that of warehouses. He submitted that for storage of goods in the warehouses huge cranes are employed which cannot enter upon the property of the appellant through the road side gates which are small in dimensions meant for the use of the labourers, with the result that the only access of such cranes was through the doors opening on the side of the disputed land. He further contended that the Courts below have erred in rejecting the appellant's claim of easementary right of way by necessity; on the assumption that such necessity must be absolute. According to the learned counsel conveniences enjoyed appellant at the time of lease 'and subsequently disturbed, would give the right of relief to the appellant. In support of his contentions learned counsel placed reliance on Pakistan National Oils Limited v. Sattar Muhammad 1980 SCMR 686; Ramadhin Singh v. Jadunandan Singh AIR 1915 Cal. 486; Valina Rama v. Emperor AIR 1928 Lah. 496; Abdullah and another v. Ahmad Khan and others 1988 CLC 1301 and Sheo Nath and others v. Mughla AIR 1938 Lah. 800.
12. Mr. SA. Samad Khan, learned counsel appearing on behalf of the respondents Nos.l and 2 on the other hand strongly supported the judgment of the High Court and the Courts below. On the legal plane he defended the view taken by the High Court that easement of necessity under section 13 of the Easements Act, 1882, governed by clause (a) thereof is required to be based not on an ordinary necessity and but on an absolute one. He supported his submission with several judgments and precedents. ,
13. So far as the first contention of the learned counsel for the appellant is concerned we find no substance in it. This is a question of fact which has been decided against the appellant. It has been found that the appellant can easily use the main gates opening on the 66 feet wide road. The trial Court has referred to the lack of evidence in the form of receipt for hiring of cranes or the name of the company providing cranes to the appellant. It has further been observed that during site inspection it was found that in front of the appellant's Plots Nos.S‑10 and S‑11, there is metalled load 66 feet wide. On the northern side of the road a plot was occupied by Messrs Gammon Construction Company Limited on which heavy machinery was stocked. In the opinion of the trial Court such heavy machinery of Messrs Gammon Construction Company could not be lifted or stored otherwise than by the use of the cranes. The plot in the occupation of the said company had gates opening on the same metalled road on which the appellant's gates open. From this the trial Court inferred that the appellant can easily use cranes through the metalled road like the Gammon Company. No evidence has been pointed out to us to establish that the gates opening on the metalled road are too small in dimensions to permit the passing through of the cranes. But in any case it is for the appellant to make suitable gates once it is shown that there is possibility of access from the metalled road to its plots.
14. The next question for consideration is as to the necessary constituents of the easement of necessity claimed by the appellant. The particular right claimed by the appellant i the right of way over the property of the respondent No.1. There is no ground for upsetting the concurrent findings of Courts below that the disputed place of land did not constitute the road area. Now it is quite plain from the averments contained in the plaint that the appellant's case was not of acquisition of easement right by way of express or implied grant under section 8 of the Easements Act. Its claim was that of easement of necessity under section 13 clause (a) of the Easements Act. Such easement can be claimed by the transferee on the other immovable property of the transferor if it is necessary for enjoying the subject of the transfer. The consensus of judicial opinion seems to be that an easement of necessity is an easement without which the property cannot be used at all. Consideration of reasonable enjoyment of the property furnished no test for creation of such right of easement nor would convenience be the test for creation of such right. On the contrary consistent view taken by the Courts is that necessity must be an absolute necessity and not a convenient mode of enjoyment of the property. In other words it is well settled that the necessity under clause (a) of section 13 is not an ordinary necessity but an absolute one. In Mariyayi Ammal v. Arundachala Pandaram AIR 1956 Mad. 584; Nawab Zekia Begum v. Lucknow Improvement Trust AIR 1937 Oudh 263; Daw Tint v. Maung Kywr AIR 1935 Rangoon 56; Kristnamrazu v. Marrazu 15 MLJ 255; Sheo Nath and others v. Mughla AIR 1938 Lah.800 and Narayana Gajapatraju v. Janaki Rathayyammaji AIR 1930 Mad. 609, the same principles have been laid down. All these cases relate to the easement of necessity for right of way over the property of the transferor. We, therefore, do not agree with the contention of the learned counsel for the appellant that the Courts below misconceived the legal position in holding that the appellant was required to prove absolute necessity for the right of way claimed by him. We would further briefly refer to the judgments cited by the learned counsel for the appellant. In Pakistan National Oils Limited v. Sattar Muhammad 1980 S C M R 686, the facts were distinguishable and the issue did not relate to easement of necessity but the right claimed was a right of access of an owner of land adjoining a public highway from all points on the common boundary between his property and the road. In the present case so far as the disputed piece of land is concerned, the concurrent finding is that it is not a public road but an open industrial plot. Therefore, the question of approach to this portion of land by, the appellant does not in the facts of this case arise. Ramadhin Singh v. Jadunandan Singh AIR 1915 Cal. 486 is also not a relevant case for the controversy in the present appeal. No right of way was involved in this case. The case reported in Abdullah and another v. Ahmad Khan and others 1988 CLC 1301 deals with the right of a person in the immediate neighbourhood of the local public thoroughfare to maintain a suit for removal of obstructions without proving special damages and therefore, the rule laid down is not relevant to the present case. Lastly Chadar and others v. Bala Pershad AIR 1928 Lah. 497 also is on facts totally distinguishable from the present case inasmuch as it deals with the quasi‑easement with regard to, drain water. As already pointed out Sheo Nath v. Mughla AIR 1938 Lah. 800 goes against the proposition canvassed by the learned counsel for the appellant. It has been clearly laid down therein that where there are other ways for ingress and exit, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient.
15. As the contentions advanced before us on behalf of the appellant are devoid of force, we find no ground for interference with the judgment of the High Court. In the result this appeal is dismissed with costs.
AA./P‑153/S
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