1. Heard the learned counsel appearing on behalf of the parties.

2. This appeal has been filed against the judgement dated 14.09.2015 and decree dated 28.09.2015 passed by District Judge, IInd, Deoghar in Title Appeal No.16/2004 affirming the judgement dated 15.03.2004 and decree dated 29.03.2004/20.04.2004 passed by learned Subordinate Judge, IInd, Deoghar in Title Suit No.127 of 2000.

3. This appeal has been admitted for final hearing by framing three substantial questions of law as contained in order dated 25.02.2019. However, the third substantial question of law was deleted with the consent of the parties vide order dated 29.02.2025.

4. Consequently, only two substantial questions of law survive for consideration which are as follows:

                  “(A) Whether right of easement has not been properly appreciated by both the Courts considering the factual aspects available in the plaint itself?

                  (B) Whether right of easement can be said to be applicable though not applicable without giving proper appreciation to justice, equity and good conscience?”

5. Title Suit No.127 of 2000 was filed by the sole plaintiff namely Ganesh Thakur on 11.12.2000 against the sole defendant namely Smt. Sulochana Devi seeking a decree that the defendant is not entitled to obstruct the common passage used and utilized by the plaintiff and also with a prayer for injunction restraining the defendant from obstructing the common passage of the plaintiff and further a direction upon the defendant to remove the materials wrongfully heaped up near the common passage.

6. The entire case of the plaintiff was based on a gift deed executed by his mother in plot no.507A having an area of 334 sq. ft. and the house thereon with one room, one verandah. The gift deed also conferred right to use and utilize common passage, enter into the courtyard and use the staircase to the roof, which is said to be well marked in the sketch map by virtue of the gift deed dated 06.07.1981.

7. The land adjoining to the gifted property was also owned by the mother of the plaintiff, namely, Tara Devi who sold the same on 08.09.1981 to Krishna Devi (her daughter in law) and said Krishna Devi sold the land to the defendant on 17.11.2000 which included the aforesaid passage area meant for right to use under the gift deed. The case of the plaintiff was that the plaintiff enjoyed the passage for 19 years and the defendant had no right to restrict such use. It was his case that the defendant obstructed the plaintiff from using the common passage and entering into the courtyard and using the staircase to reach the roof house of the plaintiff on 18.11.2000 by words. Consequently, the suit was filed.

8. The defendant filed a written statement denying the allegation and the claim of the plaintiff and also alleged that Tara Devi was an illiterate lady and she had no knowledge of the language in which the deed was written and also asserted that the plaintiff had not exercised/used the passage and the staircase even for a single day. It was also asserted that Tara Devi had transferred 925 sq. ft. by way of sale deed to Krishna Devi on 08.09.1981 by registered deed and after purchasing the same, Krishna Devi came in possession. It was also asserted that there is no sign of use of passage towards the property of Krishna Devi and the defendant had purchased the property from Krishna Devi and was in possession over the same together with the building standing thereon. It was also asserted that there was no need for the plaintiff to use the passage as because the entire 334 sq. ft. of the land of the plaintiff falls in the main road i.e. Hari Krishna Shah Road.

9. The perusal of the plaint and the written statement reveal that the suit was essentially seeking a right to easement and the plaintiff claimed access to the staircase through the passage and the entire case of the plaintiff is essentially based on the right conferred to the plaintiff through the gift deed.

10. Both the parties lead oral and documentary evidences before the court and the trial court decreed the suit and the learned 1st appellate court has dismissed the appeal filed by the defendant. Consequently, the defendant is the appellant before this Court.

11. One of the questions raised before the learned 1st appellate court was that the Easement Act does not apply in the region involved in this case. The learned 1st appellate court framed the following points for consideration:

                  “(I) Whether Easement Act or any other law related to easement is applicable in Santhal Parganas or not?

                  (II) Whether the plaintiff has right to use the common passage, usage of courtyard, and usages of stair case to go on the roof by virtue gift deed No. 2921 dt. 06.7.1981 given by Tara Devi?

                  (III) Whether the right of easement came in an end due to execution of sale deed No. 3282/1981 dt. 08.9.1981 by Tara Devi in favour of Krishna Devi?”

12. The learned 1st appellate court after considering the materials on record has recorded in paragraph 13 that the principles of justice equity and good conscience would be applicable to the law relating to easement in Santhal Pargana. During the course of argument, it is not in dispute that Easement Act as such is not applicable to the area involved in this case. The learned appellate court ultimately dismissed the appeal. The findings of the appellate court are as under:-

                  “(13) The chronoligical list of enachtments relating to easements which are force in India includes the Indian Limitation Act 1908 (repealed by Limitation Act, 1963). As per the provisions of Sc 21 of the Limitation Act, "easement" includes a right not arising from contract, by which one person is entitled to removes and appropriate for his own profit any part of the soil attached to, or subsisting upon, the land of another. Scs 25 and 26 of the Limitation Act prescribes the acquisition of easement by prescription. In the states where the Easement Act does not apply, the acquisition of easement by other modes and the extent, incidents, extinction and disturbance of easement are not affected by the Easement Act and are governed by the principle of English law as it stood before the Prescription Act of 1882 in England where the application of such principle is situated to the usages and habits of the people on the well known principle of justice, equity and good conscience. As such, I come to the conclusion that law related to easement is also applicable in Santhal Parganas.

                  14. ………………… I am of the opinion that the subsequent transaction i.e. execution of sale deed in this regard is void. The appellants have filed the judgement delivered by Hon'ble Madhya Pradesh High Court in Thomas Ambrore through L.Rs Vrs Ramdes Balmiki (AIR 2013 Madhya Pradesh 187) where alternative way was available to plaintiff to approach his house apart from the said passage and the element of absolute necessity was absent, the Hon'ble Court held that easement of necessity will not be granted when alternative passage is available. The appellant has also filed the decision of the Hon'ble Supreme Court passed in Justiniano Antao & others Ves Smt Bernadette B. Pereira (AIR 2005 Supreme Court 236) where in the plaintiff had not proved using access to house as of right through property of defendants for more then 20 years and moreover the plaintiff had access to house on southern side which was being used by her for long time, it was held by the Hon'ble Apex court that the claim as to right to access through property of defendant was not tenable. But in the present case, the situation is quite different and the plaintiff/respondents has been granted right of usage of the common passage the donor Tara Devi and also right to use the staircase situated in the courtyard to go on the roof through the gift deed dt. 06.07.81 and the aforesaid registered gift deed has not been revoked prior to execution of the sale deed dt. 08.09.1981.

                  (15) DW 7 being the son of the appellant has stated in para 29 of his cross-examination that he does not have any knowledge about the injunction granted prior to closure of passage by him on 18.11.2000. Thus it becomes clear that the appellant has closed the usage of common passage by the respondents/plaintiff and I am of the opinion that the same is illegal in view of the terms of the gift deed dt. 06.07 1981 executed by Krishna Devi in favour of the respondents/plaintiff.

                  (16) Thus in view of the pleadings made by both the parties, the oral and documentary evidences available on the case record and the discussions made above, I find and hold that the plaintiff/respondents was granted right of easement to use the common passage and use of the staircase situated in the courtyard to go on the roof vide the gift deed No. 2921 dt. 06.07.1981. I further find and hold that the right of easement granted to the plaintiff/respondents has not come to end due to execution of sale deed No. 3281 of 1981 dt. 08.09.1981 by Tara Devi in favour of Krishna Devi.”

13. The perusal of the plaint and the written statement reveal that the suit was essentially seeking a right to easement and the plaintiff claimed access to the staircase through the passage and the entire case of the plaintiff is essentially based on the right conferred to the plaintiff through the gift deed.

14. The learned 1st appellate court while upholding the judgement passed by the learned trial court has also held that the plaintiff was granted the right of usage of common passage, and also right to use the staircase situated in courtyard to go the roof through the gift deed dated 06.07.1981 and the aforesaid registered gift deed has not been revoked prior to execution of the sale deed dated 08.09.1981. The court ultimately held that the right of easement has not come to an end due to execution of the sale deed dated 08.09.1981 by Tara Devi in favour of Krishna Devi.

Argument of the appellant (defendant)

15. The learned counsel for the appellant while advancing his arguments has submitted that the learned courts while considering the facts and circumstances of the case have failed to apply the principles of justice, equity and good conscience. He has submitted that the pleader commissioner’s report reveals that the entire block A of the property which includes the gifted property as well as the portion of the property which originally belonged to Tara Devi, is in possession of the plaintiff, and the entire property is rectangular in nature and has access to main road and also side lane at two sides one on the longitudinal side and other on the side towards to width and the two roads intersecting at right angle.

16. The learned counsel has also submitted that the Pleader Commissioner’s report also reveals that there is a staircase over the property in possession of the plaintiff and the plaintiff has independent access to his terrace through the stair case situated on the property of the plaintiff. The learned counsel submitted that the entire block of the area in the plaintiff’s possession has been divided into three rooms, and the staircase is located near the last room, opening onto the side lane. Each room also has an independent opening towards the main road. The verandah which was shown in the gift deed has been shown as a room now which is between the other two rooms and the verandah has been converted by the plaintiff into a room.

17. The learned counsel has submitted that the gift deed also reveals that at the time of gift, there was only one room and verandah adjoining to it and the location of the staircase is not mentioned in the gift deed. However, the passage which the plaintiff is insisting to use is 18 ft. away from the verandah portion. As per the map to the gift deed, the common passage leads to vacant land and the area adjoining to common passage is also vacant land of Tara Devi, the mother of the plaintiff. The learned counsel has also submitted that the entire area adjoining to the gifted property including land in front of the gifted property which is in possession of the plaintiff is also a rectangular area about 18 feet wide which was sold out to the defendant by the said Krishna Devi and the map as filed by the Pleader Commissioner also reveals that the entire area in possession of the defendant consists of constructed house of the defendant.

18. The learned counsel submits that the principles of justice, equity and good conscience if had been applied to the facts of this case, the suit could not have been decreed as the plaintiff had adequate and independent access to the verandah and to the terrace over his property and his property also has full access to the main road as well as the private lane. Land of the defendant is marked B in the map furnished by pleader commissioner.

19. The learned counsel for the appellant has also relied upon the judgement passed by Hon’ble Supreme Court reported in AIR 2005 SC 236 (Justiniano Antao and Ors. Vs. Smt. Bernadette B. Pereira) paragraphs 9 and 10 to submit that the right of easement can be lost with passage of time and he submits that since the plaintiff had full access to the staircase, which was said to be located in the verandah as per the learned 1st appellate court’s judgement and the said verandah has been converted into a room and the plaintiff has access to his terrace through an independent staircase situated over his property, therefore, the alleged right of easement does not survive any more. The learned counsel submits that now the plaintiff will have to go through the rooms of the defendant to enjoy the alleged right of easement. It is submitted that in the judgement passed by Hon’ble Patna High Court reported in AIR 1935 Patna 188 (Jangbahadur Singh Vs. Thithar Singh), it has been held that Easement Act does not apply to the province but law relating to easement is a law of justice, equity and good conscience, is applicable. He submits that the principles of justice, equity and good conscience have not been properly considered by the learned court.

20. The learned counsel has also submitted that the plaintiff has not challenged the registered deed of the defendant by which the absolute right with respect to the property including the passage has been transferred in favour of the defendant. The deed in favour of the vendor of the defendant has also never been challenged.

21. The learned counsel submits that the substantial questions of law be answered in favour of the appellant and the appeal be allowed. Argument of the respondent (plaintiff)

22. The learned counsel appearing on behalf of the respondents while opposing the prayer has submitted that it has sufficiently come on record through oral evidence that the defendant had blocked the access immediately prior to filing of the suit i.e. w.e.f 18.11.2000. The learned counsel submits that for long duration the passage was being used by the plaintiff and the passage was utilized to access the staircase. The learned counsel has also submitted that immediately before the date of filing the suit, the passage was blocked, and therefore, such obstruction could not have been created by the defendant. He has also referred to the gift deed and submitted that the description of property in the gift deed clearly reveals that the plaintiff was entitled to use the passage to use the staircase in order to go to the terrace over his gifted property. He has submitted that such right having been conferred through a registered gift deed does not extinguish by virtue of transfer of the passage to the defendant. The learned counsel has referred to Section 48 of the Transfer of Property Act and submitted that the right of the defendant to use the passage to the staircase still survives and that has not extinguished. The learned counsel has submitted that there is no doubt that the access was blocked only on 18.11.2000 as is apparent from the cross- examination of the witness P.W. 7.

23. The learned counsel for the respondents has also submitted that there was no need to challenge the deed executed in favour of the defendant in view of Section 48 of the Transfer of Property Act as the previous gift deed would prevail over the sale deed and the right of easement of the plaintiff would remain intact irrespective of the sale deeds executed in favour of the defendant.

Rejoinder argument of the appellant (defendant)

24. The learned counsel for the appellant, in response, has submitted that the suit was seeking right of easement and the gift deed itself reveals that the property which was transferred was specifically 334 sq. ft. covering a room, the verandah in front of the room and the land in front of the verandah. He submits that gift deed has transferred the property what is specifically referred to and no more.

Findings of this court.

25. The learned counsels have placed the findings recorded by the learned 1st appellate court and also the gift deed along with its map and the pleader commissioner’s report along with the map. The gift deed was marked exhibit 1. The map annexed to the gift deed was exhibited as Exhibit-2. The sale deeds which have been referred to above have also been exhibited. The pleader commissioner’s report has been exhibited as exhibit E and the pleader commissioner’s report also contains the map upon local inspection.

26. It is not in dispute that Tara Devi had executed a gift deed in favour of her son with respect to a portion of her property consisting of one room, one verandah and land, all in one row and together they constituted a rectangular area. On one side towards the length of the aforesaid property combined, there is a road which is intersected by a private lane and that lane is towards the breadth of the aforesaid rectangular gifted area. As per the gift deed, the plaintiff has easement right to approach the staircase through the common passage and the common passage falls outside the gifted property and within the remaining land of Tara Devi. As per the gift deed, the constructed area is only one room and verandah and location of the staircase is not shown in the map but recital of the gift deed reveals that the plaintiff was given access to the staircase through the common passage so that he could access the terrace of his property.

27. Tara Devi had transferred her remaining land including the common passage to her daughter in law in the year 1981 immediately after execution of the gift deed in favour of the plaintiff and her daughter in law, constructed a residential house over the property and in turn transferred the entire property to the defendant through registered sale deed dated 17.11.2000. After purchase, the defendant came in possession and blocked the access of the plaintiff to the staircase through the common passage.

28. Further it is clear from the map to the gift deed itself, that there is no staircase adjacent to the common passage, rather the common passage is 18 feet away from verandah, which was gifted to the plaintiff along with one room. The sketch map of the gift deed is embossed for better appreciation:

29. The Pleader Commissioner was appointed for local inspection, who submitted a report dated 15.01.2002 with a map consisting of three different adjoining rectangular blocks marked as A, B and C.

30. Admittedly, the property at A is in possession of the plaintiff which consisted of one room which was already there in the gift deed and in place of verandah, there is a room and in place of vacant land in front of verandah there is another room with a staircase, which is opening in the gully (side lane). So far as the block B is concerned, admittedly the same is with the defendant which includes the said common passage projected in the gift deed and the passage is immediately followed by a staircase and the entire area in possession of the defendant consists of three rooms, kitchen and one courtyard and the courtyard is much away from the common passage and the area between the passage and the courtyard consists of rooms and kitchen. The map as furnished by the Pleader Commissioner is also embossed as under:

31. If the location of private land and the main road for comparison between the map in the gift deed and the map furnished by the pleader commissioner are superimposed, the map as furnished by the pleader commissioner upon turning by 90 degrees is as under:

32. The entire rectangular in the extreme right with independent stair case to access the terrace of the property of the plaintiff and opening to the gali is marked A and is with the plaintiff; the rectangular block in the middle marked B with the common passage ending in a stair case to terrace of block B, is to the left side of block B (within block B) and entire block B is with the defendant. There is no dispute with regard to the rectangular block in the extreme left marked C.

33. The report of the pleader commissioner reveals that with respect to each of three rooms, the plaintiff has an exit towards the main road termed as Hare Krishna Sah lane and through the guli, the plaintiff has an independent access to the terrace through the stair case which opens directly in the guli (private road).

34. Upon comparison of the map in the gift deed, and the map submitted by the pleader commissioner, there can be no doubt that at the time of gift deed way back in the year 1981, the passage ended in open land and it was only through the open land the plaintiff could approach the verandah and the staircase adjoining to his one room. It was this easement right which was conferred upon the plaintiff at the time of gift.

35. From the perusal of the pleader commissioner report, it is apparent that the verandah portion of the gifted property has been converted into a room by the plaintiff and the vacant land in front of the verandah has also been converted into a room and in this portion, there is an independent staircase for the plaintiff on the property of the plaintiff. If the plaintiff is permitted to continue to use his right of easement through the passage falling in the extreme left of the property of the defendant through the wall between the property of the plaintiff and defendant as claimed by the plaintiff, the plaintiff has to be permitted to pass through two rooms of the defendant. As per the Pleader Commissioner’s report the area occupied by the plaintiff and the defendant is divided by a wall and as per the specific case of the plaintiff the defendant by words on 18.11.2000 is obstructing the plaintiff the use of common passage, entering into the courtyard and using the stair case to go up to the roof.

36. The learned 1st appellate court while dismissing the appeal has recorded a finding of fact that plaintiff was granted right of easement to use the common passage and use of the staircase situated in the courtyard to go on the roof vide gift deed no.2921 dated 06.07.1981 and has held that the right of easement has not come to an end due to execution of the sale deed by Tara Devi with respect to the remaining portion of land vide sale deed dated 08.09.1981 in favour of Krishna Devi. The court has also observed that D.W. 7 in his cross- examination had stated that he had closed the passage on 18.11.2000 which is a date which is after the execution of registered sale deed in favour of the defendant by Krishna Devi in the year 2000. However, though the court has recorded that the right of easement has to be guided by the principles of justice, equity and good conscience but has not applied the said principle while passing the impugned judgement and upholding the judgment of the learned trial court.

37. It is not in dispute that the Easement Act is not applicable and the court has to apply the principles of justice, equity and good conscience while considering the right of easement. The law is well settled by the judgement passed by Hon’ble Patna High Court reported in AIR 1935 Patna 188 (Jangbahadur Singh Vs. Thithar Singh) wherein it has been held that Easement Act does not apply to the province but law relating to easement is a law of justice, equity and good conscience, is applicable.

38. In the present case, the plaintiff has claimed and has been found to have used the access to the staircase through the courtyard to approach his terrace for 19 years but the map to the pleader commissioner’s report reveals and it is not in dispute that the plaintiff has an independent access to his terrace through the stair situated over his property. This Court is of the considered view that once the plaintiff has own staircase and converted the verandah and also open space in front of verandah into rooms with a stair case to his terrace, the plaintiff has ample access to his terrace.

39. Apparently, the entire premises of the plaintiff has undergone structural change by none less than the plaintiff and one room, one verandah, vacant land has now been converted into three rooms, one staircase and the earlier one room is still existing.

40. The remaining vacant land of the donee with the passage which is now the property of the defendant has also undergone structural change inasmuch as a house with a number of rooms have been constructed and at the end of the passage, a staircase has also been constructed which has an independent access to the terrace over the property of the defendant.

41. The area of the plaintiff is fully separated by the area of the defendant and there is no allegation that one has encroached upon the area of each other.

42. It is not in dispute that the defendant has title of the entire B block including the passage and the plaintiff claimed only right of easement through the passage and then through the wall between the property of the plaintiff and the defendant and to approach his terrace through stair case. In such circumstances, Section 48 of the Transfer of Property Act has no role to play. Further, the sale deeds through which the defendant has acquired tight, title, interest and possession with respect to block B area have never been challenged by the defendant. The suit is only on the point of right to easement.

43. This Court is of the considered view that the courts have failed to consider the aforesaid aspects of the matter particularly the fact that if the plaintiff is granted access to his terrace through the common wall standing between the block A and block B, he has to cross two rooms of the defendant and this would be inspite of the fact that there is an independent stair case of the plaintiff on his own property to have access to his terrace. Allowing such access to the plaintiff through the rooms of the defendant would certainly cause great inconvenience to the defendant which would certainly be against the principles of justice, equity and good conscience which is the principle applicable to the right of easement when the Easement Act is not applicable in the area concerned. This Court finds that the learned courts have given a complete go by to the principle of justice, equity and good conscience and failed to take into account that changed structure of the property of the plaintiff with the passage of time and also the fact that the land over block B also has residential constructions. While considering the principles of justice, equity and good conscience to the right of easement and its continuance, the courts are bound to consider the changed circumstances when the plaintiff himself has undertaken changes over his property as mentioned above. This Court is of the considered view that the plaintiff cannot continue to claim right of easement as such right as claimed and granted by the learned courts do not conform to the principle of justice, equity and good conscience.

44. While answering the substantial questions of law, this Court is of the considered view that the right of easement has neither been properly appreciated by both the Courts when seen in the light of the factual aspects available in the plaint itself and further the right of easement has been granted without giving proper appreciation to justice, equity and good conscience.

45. The substantial questions of law are answered in favour of the appellant. This 2nd appeal is allowed.

46. Pending I.A, if any, is closed.

47. Let a soft copy of this order be communicated to the court concerned through FAX/email.