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Fatik Lal Pal v. Kalipada Das
Judgment Summary — Sudhamay Basu, J.
Factual and Procedural Background
This rule arises from a challenge to a judgment and order dated 19 February 1974 in Misc. Appeal No. 727 of 1973 by the Additional District Judge, Alipore, which reversed an earlier order dated 3 September 1973 passed by the 6th Court of Munsif, Alipore, in Title Suit No. 451 of 1972. The underlying suit (Title Suit No. 45 of 1972) was filed by plaintiffs seeking declaration of title and a permanent injunction restraining defendants from interfering with plaintiffs' peaceful possession of a strip of land (alleged private passage) measuring 4½ ft. by 88 ft., and from forcing a pathway over it.
Plaintiffs alleged exclusive ownership and use of the passage for repairs and rainwater passage, and asserted that defendants threatened (on 30 November 1972) to force a pathway by breaking a part of a wall on that passage. Defendants countered that they owned C.S. Plot No. 524 and that the disputed strip was a common passage for ingress and egress to their plot, had been used for more than 50 years, and that there was no other access to Plot No. 524.
On the interlocutory level, plaintiffs filed an application under Order 39 Rule 1 of the Code of Civil Procedure (seeking injunction) and defendants filed a petition under Section 151 of the Code of Civil Procedure (seeking removal of the wall). The learned Munsif, after considering evidence including a commissioner's report (submitted 26 March 1973), held that plaintiffs had not made out a prima facie case and vacated an earlier ex parte interim injunction; he also ordered the plaintiffs to remove the wall within one month (acting on the defendants' Section 151 application). On appeal, the Additional District Judge set aside the Munsif's order (while directing status quo and not permitting change of character of the suit land) and held that a mandatory ad interim injunction can be granted only in cases of breach of contractual obligation — a view challenged in the present rule.
Legal Issues Presented
- Whether a mandatory injunction under Section 39(1) of the Specific Relief Act, 1963 (i.e., an injunction to compel performance of acts to prevent breach of an obligation) is limited to breaches of contractual obligations or whether "obligation" in Section 39 must be read more broadly in light of the definition in Section 2(a) (which includes every duty enforceable by law).
- Whether a right of way (an easement of way) must be physically contiguous to the dominant tenement in order to be validly appurtenant to that tenement (i.e., whether contiguity between the way and the dominant tenement is an essential requirement for an easement).
- Whether the learned Additional District Judge was justified in setting aside the Munsif's order vacating the interim injunction and ordering removal of the wall, given the materials on record and the disputed question of contiguity of the passage to Plot No. 524.
Arguments of the Parties
Arguments in Support of the Rule (Mr. Mitter)
- Contended that the learned appellate court was wrong to confine "breach of an obligation" to contractual obligations alone when considering the propriety of granting a mandatory injunction under Section 39(1) of the Specific Relief Act, 1963.
- Relied on the definition of "obligation" in Section 2(a) of the Specific Relief Act, 1963, which includes "every duty enforceable by law," to argue that obligations are not restricted to contractual duties; therefore mandatory injunctions are not limited to contract breaches.
- Submitted that the appellate court's narrow construction of "obligation" was illegitimate in light of the statutory definition and thus the appellate court erred in holding that mandatory injunctions can be granted only in cases of breach of contract.
Arguments Opposing the Rule (Mr. Mukherjee)
- Submitted, on the basis of the map annexed to the plaint and the pleadings, that the passage does not run up to C.S. Plot No. 524 (the defendants' plot), and therefore no right of easement in favour of that plot could exist because contiguity (the passage leading to the dominant tenement) was absent.
- Quoted authorities (B. B. Kartiyar's treatise on easement and license in India; Gale on Easement) and referred to English cases (Ackroyd v. Smith and Thorpe v. Brumfit) to support the proposition that easements are accessory to a tenement and that an easement must enure to the benefit of a dominant tenement; stressed that an easement cannot be in gross.
- Maintained that without a dominant tenement contiguous to the way it is difficult to sustain a claim of easement of right of way for Plot No. 524.
Table of Precedents Cited
| Precedent / Authority | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ackroyd v. Smith, 138 E.R. 68 | Invoked (by opposing counsel) for the proposition that an easement of way must end upon the dominant tenement and thus suggests a requirement of contiguity. | The court noted the case was relied upon but treated it as one of the authorities from which other appellate judges dissented; the court did not accept that Ackroyd should be treated as establishing a universal rule of contiguity. |
| Thorpe v. Brumfit, 1873 (8) Ch. App. 650 | Also cited for the proposition that a right of way must be contiguous to the dominant tenement. | The court acknowledged the citation but observed later English appellate authority and commentary that reject the strict contiguity requirement; the court did not adopt Thorpe as determinative. |
| Todrick v. Western National Omnibus Co. Ltd., 1934 Ch. 561 (C.A.) (1934 AER 25) | Addressed whether a right of way must directly lead to the dominant tenement; in that decision Romer and Maugham LJJ rejected the proposition that contiguity is essential. | The court relied on Todrick (and the opinions of Romer and Maugham LJJ) to support the view that contiguity is not an absolute requirement and that a way can be appurtenant to land even if it does not physically terminate at the dominant tenement, provided it is beneficial. |
| Halsbury's Laws of England, 3rd ed., Vol. XII, Art. 1237 | States the principle that a right of way can be appurtenant to land with which the way has no physical contiguity, provided it is beneficial to the occupation of that land. | The court cited Halsbury to support the proposition that contiguity is not essential and emphasized benefit to the dominant tenement as the key consideration. |
| Gale on Easement, 11th ed., p. 19 | Sets out essential characteristics of an easement (must be connected with enjoyment of a dominant tenement and for its benefit; distance that prevents any practical benefit excludes an easement). | The court adopted Gale's articulation of easement principles to show that the requirement is benefit and connection to the dominant tenement rather than strict physical contiguity; used to reconcile English principles with the facts in dispute. |
Court's Reasoning and Analysis
The court's analysis proceeded in two linked strands: (1) the proper interpretation of "obligation" in Section 39(1) of the Specific Relief Act, 1963 (the provision governing mandatory injunctions), and (2) the question whether contiguity between a right of way and a dominant tenement is an essential prerequisite for an easement of way.
On the scope of "obligation" under Section 39(1), the court accepted the submissions of Mr. Mitter that the appellate court erred in confining "breach of an obligation" to contractual breaches only. The court relied on the statutory definition in Section 2(a) of the Specific Relief Act, 1963, which defines "obligation" to include every duty enforceable by law. For this reason the court concluded that the appellate court's narrow, contract-only construction was illegitimate and unsustainable.
On the nature of easements and the contiguity issue, the court examined the pleadings and the map: plaintiffs pleaded that the passage did not reach Plot No. 524 (it stopped short and after it lay a graveyard); defendants asserted the passage ran up to and was contiguous with Plot No. 524. The court observed that the question of contiguity was therefore disputed on the record.
The court then reviewed English authorities and learned treatises to determine whether contiguity is an essential element of a right of way. It cited Halsbury and Gale, and discussed the Court of Appeal decision in Todrick (in which Romer and Maugham LJJ rejected the strict contiguity requirement). The court concluded from these authorities that contiguity of tenements is not essential to the creation or existence of an easement of way; what matters is that the easement be beneficial to the dominant tenement and connected with its enjoyment. The court noted that the civil-law concept and English authority require benefit to the dominant tenement, and that a right of way in one county cannot be appurtenant to an estate in another county where no benefit could realistically flow.
Because the question whether the passage reached and was contiguous to Plot No. 524 was disputed, and because the appellate court had been unjustified in narrowing the concept of "obligation" to contractual breaches (thus misapprehending the scope of mandatory injunctions), the court allowed the rule, set aside the appellate judgment, and restored the Munsif's order.
Holding and Implications
Core Ruling: The rule is allowed; the judgment of the Additional District Judge (appellate court) is set aside and the order of the learned Munsif is restored. The rule is made absolute. There will be no order as to costs.
Practical consequences for the parties:
- The Munsif's decision vacating the ex parte interim injunction and directing removal of the wall (and other consequential directions made by the Munsif) stands restored by this court.
- The appellate court's narrower construction of Section 39(1) — that a mandatory injunction can be granted only in cases of contractual breach — has been rejected by this court in the context of this proceeding; the court emphasized that "obligation" under the Specific Relief Act must be read in light of Section 2(a) (every duty enforceable by law).
Broader legal implication: The opinion emphasizes that for the purpose of easements (particularly rights of way) contiguity between the way and the dominant tenement is not an absolute prerequisite; the decisive consideration is whether the right of way is beneficial and connected with the enjoyment of the dominant tenement. The court applied established English authorities and treatises to support this proposition. The opinion does not purport to lay down a novel principle of law beyond these applications to the facts before it.
Sudhamay Basu, J.:-
(1) This rule relates to a judgment and order, dated february 19, 1974, passed in misc. Appeal no. 727 of 1973 by the additional district judge, alipore, reversing an order, dated september 3, 1973 passed by the 6th court of munsif, alipore, in title suit no. 451 of 1972. The aforesaid order arose out of the plaintiffs' petition under section 39 rule 1 and the defendants' petition under section 151 of the code of civil procedure for removal of a wall on a passage which was the subject matter of the suit.
(2) The proceeding arises out of title suit no. 45 of 1972 which was filed by the plaintiff for declaration of title and permanent injunction restraining the defendants from interfering with the peaceful possession of the suit property and from forcing a pathway over it. It was alleged in the plaint that strip of land ran from the east to west measuring 4 1/2 in breadth and 88' ft. In length curved out of c. S. Dag nos. 518 and 517 of mouza akra krishnanagar p. S. Maheshtala district 24 paraganas. It is private passage according to the plaintiffs exclusively belonging to the plaintiffs and was used by them for the purpose of effecting repairs of their properties as also for passage of rain water. Defendants did not have any right over the strip of land at any time. On november 30, 1972, however, the defendants threatened to force a pathway through the suit property by breaking some portion of wall standing on the said passage. Plaintiffs, therefore, claimed the aforesaid declaration and injunction. Defendants in their written statement contended that they were owners of c. S. Plot no. 524 and the disputed land was a common passage for ingress and egress to their aforesaid plot of land where their home - stead is situated. On the west of the common passage is akra krishnanagar road and on its east is the dwelling house of the defendants in plot no. 524. The defendants' case is that they had been using the disputed strip of land for more than 50 years. Defendants' further case is that besides the disputed strip of land there was no other way for ingress and egress to the plot no. 524. It will be noticed from the allegations that while the plaintiffs contend that the suit passage is from west to east it does not continue further east upto c. S. Plot no. 524 which belongs to the defendants. According to the plaintiffs, after the passage lies a graveyard which also belongs to plot 519. Defendants, however, assert that the passage continues right upto plot no. 524 and is contiguous to the same.
(3) The present proceeding arose out of plaintiffs' petition under order 39 rule 1 and the defendants' petition under section 151 of the code of civil procedure for removal of a wall on the said passage. Learned munsif on a consideration of the materials on record which includes a report by the commissioner submitted on march 26, 1973, found that the plaintiffs failed to prove prima facie that they had any case to go to the trial and the ex parte interim order of injunction which was earlier passed by the learned munsif was vacated. Not only that, in order to make the order effective, the learned munsif, an the application under section 151 of the code of civil procedure filed by the defendants ordered the plaintiffs to remove the wall placed on the suit passage within one month from date.
(4) In appeal the learned additional district judge of alipore did not dispute the finding of facts by the learned munsif. He noted the evidence and other materials on record and directed the parties to maintain status quo and not to change the character of the suit land till the hearing of the suit. Thus he did not interfere with the order of injunction passed by the learned munsif. At the same time, he felt that "a mandatory ad interim injunction can be thrusted upon in a case of breach of contract. " according to him, the learned munsif was not justified in granting the mandatory injunction as it was not the case of the defendants that there was a contract with regard to the passage which the plaintiffs violated. In that view of the matter the misc. Appeal was allowed on contest and the learned munsif's decision was set aside. The said order of the learned additional district judge is challenged in this rule.
(5) Mr. Mitter, learned advocate appearing in support of the rule, firstly contended that the learned appellate court was clearly wrong in holding that a mandatory injunction can be granted only in case of contractual obligation. Mandatory injunction is dealt with under section 39 of the specific relief act, 1963. If runs as follows :
"when, to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
The learned appellate court, as has been noticed earlier, confined "breach of an obligation" to 'a breach of a contractual obligation'. But section 2 subsection (a) of the specific relief act, 1963 itself states that 'obligation' includes every duty enforceable by law. In that view of the matter, it would be hardly legitimate to confine an 'obligation' merely to a contractual one. The definition clause itself stands in the way of putting such a circumscribed and narrow construction as is sought to be made in the impugned order. I, therefore, find substance in the contention of mr. Mitter in this regard.
(6) Mr. Mukherjee, learned advocate, appearing to oppose the rule, however, contended that in terms of the map annexed to the plaint the passage does not run upto c. S. Plot no. 524 of which the defendants are the owners. In other words, he contended on the basis of the aforesaid map and the pleadings in the plaint that the passage not being contiguous to plot no. 524 (here could be no right of easement. He quoted several passage from b. B. Kartiyar's treaties in the law of easement and license in india, 6th edition and gale on easement. As to the nature of easement mr. Mukherjee was right when he submitted that easement is an accessory to a tenement and that it is not possible to have easement or right in gross. It is quite true that without their being a dominant tenement in existence it is not possible to have easement. Legal easement must enure to the benefit of the dominant tenement. But it is difficult to sustain his contention that easements with regard to right of way must be contiguous to the dominant tenement. Mr. Mukherjee referred to two english cases ackroyd v. Smith, 138 e. R. 68 and thrope v. Brumfit, 1873 (8) ch. App. 650 for the proposition.
(7) In halsbury's laws of england, third edition, volume xii article 1237 it is stated that
"a right of way can validly be made appurtenant to land with which the way has no physical contiguity, but it must be beneficial in respect of occupation of that land."
(8) A reference is made to the case of todrick v. Western national omnibus co. Ltd, 1934 ch. 561, c. A. 1934 all england reporter 25. It would appear that the point was specifically dealt with in the said decision. Romer, l. J. While dealing with the point, stated :
"it is said on the part of the plaintiff, that it was not appurtenant to that land, and, therefore, could not pass to the defendants, because the road over which the right had been granted does not directly lead, except to an immaterial extent, on to the land coloured blue, but anyone using the road for the purpose of going to the land coloured blue must pass over some other land that belonged to mr. Nichols and now belongs to the defendants. It is said in other words that there cannot be an easement of a way appurtenant to land unless the way ends upon the alleged dominant tenement in other words that the dominant tenement must be one of the termini of the roads in question."
(9) Maugham, l. J. Was of the view that it was contrary to the common understanding of the provision with regard to rights of way. Can the owner of the house not acquire by grant a right of way across a field opposite to, say, a highway or a railway station ? "i believe the universal opinion is that such a way can be granted. " again he asks "can a owner of land not acquire a right of way leading to his tenement over two fields belonging to different owners ? i should imagine that such a right of way is constantly being acquired, and i can see no reason in common law why such an easement should not be acquired. " both romer l. J. And maugham l. J. Differed from the decision in ackroid v. Smith and thrope v. Brumfit, maugham l. J. Was unable to see how there was anything in either of the two cases which supports the general proposition that a right of way can only be granted if the way leads right upto the dominant tenement.
(10) It may be noted that the essential characteristics of an easement were noted by gale on easement, 11th edition p. 19 and the same has been approved by the court of appeal and other courts in england. The passage is as follows :
"according to the civil law it was necessary that a servitude should be productive of advantage to the dominant tenement. A mere restriction upon the rights of the servant owner was invalid if unaccompanied by any benefit to the dominant owner of, if such benefit were one merely personal to him. For the same reason no servitude could exist unless the dominant and servient tenements were sufficiently near to allow the one to receive a benefit from the subjection of the other. So in english law an easement must be connected with the enjoyment of a dominant tenement and must be for its benefit. Thus there cannot be a right of way over land in kent appurtenant to an estate in northumberland."
There is, therefore, no manner of doubt on the basis of the english authorities that contiguity of tenement is not essential for the purpose of an easement over a right of way. It will be noted that emphasis is laid on the fact that easement of dominant tenement. Distance between kent and northumberland is cited to show that the same excludes the possibility of any benefit (connected) the enjoyment of a dominant tenement. It may be noted that the indian easements act, 1882 does not interms apply to west bengal. Of course, the principles underlying provisions of the act have been held to be applicable nonetheless (64 c. W. N. 60). The principles of english law, as noted above, do not seem to in conflict either with the principles of justice, equity and good conscions or to the principles embodied in the indian easements act. No argument has been advanced on that ground either.
(11) Mr. Mukherjee's contention, easements act. No argument has been over, the question of contiguity itself is in dispute in this proceeding. I have already noted that while the plaintiffs contend that the passage steps short of reaching upto plot no. 524 the defendants claim that the passage runs upto and is contiguous to plot no. 524. There is no doubt, therefore, that question of contiguity itself is in dispute.
(12) In the aforesaid circumstances the rule must succeed. The petition is allowed. The rule is made absolute. The judgment of the appellate court is set aside and the order of the learned munsif is restored. There will be no order as to costs.
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