UMRAH KHATOON Vs. MOHAMMAD ZAFIR KHAN

JUDGEMENT

(1.) This appeal arises out of the suit filed by the respondent No. 1 in which the main prayer was to declare that she had acquired easementary right to use the suit passage for discharge of drain water. The trial Court decreed the suit and on appeal being preferred by the defendants, the same was dismissed. On further appeal to the High Court, the suit has, however, come to the dismissed only on the ground that in para 7 of the plaint a statement had been made by the respondent that "the suit land in existing since 1918 and is part of plaintiffs house". The High Court has opined that this statement shows that the plaintiff was claiming title to the suit land, though the relief prayed for was not based on title as such. This, according to the High Court, was the result of artistic drafting of the prayer portion. After placing reliance on the judgment of this Court in Chapsibhai Dhanjibhai Dand v. Purshottam, AIR 1971 SC 1878, the High Court came to the conclusion that as the plaintiff-respondent had failed to establish title, she could not turn round and claim relief on the basis of easement.

(2.) A reading of the High Courts judgment shows that it confined its attention only to the aforesaid averment in paragraph 7 of the plaint, as to which it was submitted that the statement might not be read in isolation but may be read along with other averments in the plaint, which show that the relief was really being sought on the basis of acquisition of easementary right. We have, however, perused the whole plaint and find that the plaintiff had indeed claimed title over the lane and, in the alternative, had contended if her title were not to be accepted, she had in any case acquired easementary right to discharge the drain water.

(3.) A perusal of the first appellate judgment shows that the plaintiff did fight for her title over the land so much so that a Pleader Commissioner was appointed to find out as to whether the land was part of plot No. 650 of plaintiffs land or appertained to plot No. 649 which is part of defendants land.