Fakirappa Jotappa Malemani v. Ningappa Shidlingappa Matti

1. Thia is an appeal from a decision of the District Judge of Dharwar confirming the, decision of the Subordinate Judge of Hubli. The plaintiff sues for an injunction to restrain the defendants from interfering with the plaintiff's passage across the defendants' plot of land, and to remove an obstruction to the passage. It appears that on 8th May, 1924, defendant 4 who at that time possessed the land both of the plaintiff and of the defendants sold to the predecessor of the plaintiff the plot which is survey No. 1781/2, and ultimately, in 1935, the plaintiff acquired that plot. In 1980 defendant 3 as successor to defendant 4 sold the part of the survey number which had been retained by defendant 4, namely No. 1781/1, to defendant 1. The lower Courts have held that the only means of access to the plaintiff's land is over the land of defendant 1, and but for one difficulty, which I will discuss, it is perfectly clear that the purchaser in 1924 would have acquired an easement of a right of way over plot No. 1781/1 which was retained by the vendor.

2. Section 13 of the Easements Act, so far as material, provides that, where one person transfers immovable property to another (a) if an easement in other immovable property of the transferor is necessary for enjoying the subject of the transfer, the transferee Shall be entitled to such easement. But the difficulty in the plaintiff's way is that in 1921 the vendor, namely, defendant 4, was a minor. He was aged seventeen years and ten months, and under Indian law a contract by a minor is wholly void. Under English law, by which a contract by a minor is voidable, the Court would no doubt hold that defendant 4 in not repudiating this sale after he came of age, had ratified it. But under Indian law the contract, being wholly void, is incapable of ratification. Therefore, the plaintiff acquired no title under the conveyance of 1924, but after 12 years possession he would acquire a title under Section 28 of the Limitation Act, which provides that at the determination of the period limited to any person for instituting a suit for possession of any pro party, his right to such property shall be extinguished. As has been pointed out, the section only extinguishes the right, and does not provide in terms in whom that right is to vest. But the title to immovable property cannot be left in the air, and, it is clear that on extinguishment of the true owner's title, title must follow possession and vest in the trespasser who has got a title by possession. That being so in May 1936, before this suit commenced, the plaintiff acquired title on the extinguishment of the true owner's title under S. 28, and the concluding paragraph of Section 13 of the Easements Act, provides that where immovable property passes by operation of law, the person from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. Therefore, it is argued, in 1936 it must be deemed that the then owner of the property whose title was extinguished transferred it to the plaintiff and accordingly under S. 13(a) the plaintiff acquired an easement of necessity.

3. Assuming, without deciding, that a title acquired by adverse possession is one passing by operation of law within S. 13, the difficulty is that at the time of this transfer by operation of law, the transferor, that is to say the then lawful owner of the plaintiff's property, did not possess any other property. The other plot No. 1781/1 had been transferred, as I have mentioned, in 1930, so that in 1936 the title had been severed, and I do not see how the plaintiff can spell out an easement under S. 13 over land which did not belong to his transferor at the time of the transfer.

4. The case is no doubt a hard one because the plaintiff is unable to reach his land except over defendant 1's land, and but for the fact that defendant 4 when he sold the plaintiff's land in 1924 was a minor, there is no doubt that the plaintiff would have got an easement. But I do not see how to get over the difficulty discussed above. I think, therefore, that the decisions of the lower Courts were right, and the appeal must be dismissed with costs.

5. Appeal dismissed.