SUNTOSH KUMAR BANERJEE Vs. KRISHNA KANT GUPTA

JUDGEMENT

(1.) Defendant"s second appeal is against concurrent judgment of the Courts below decreeing the plaintiff"s suit for easement of necessity.

(2.) The suit has been decreed on the popular notion about an easement of necessity that whenever a man has no other way, he can claim the right to go over his neighbour"s land, which, however, is not supported either by principle or by authorities. The crucial question involved in this appeal is what is an easement of necessity.

(3.) The short facts germane to the said issue in appeal are as hereunder. There is one R.S. Plot No. 178 situated in village Gopalpur, P. S. Motihari, under Motihari Municipality. The land was recorded as Kast land of one Laldhari Mahra. After the death of Laldhari Mahra his heirs sold the land in the year 1934 to plaintiff No. 1 and the ancestor of defendant. Shri Ravindra Nath Mukherji through separate sale deeds. Plaintiff No. 1 purchased towards the north of the said plot and the ancestor of the defendant towards the south. In the year 1936 Ravindra Nath Mukherji built his house on his purchased land. Plaintiff No. 1, however, used the land purchased for growing vegetables. Towards the further west of the said plot is the Kutchery road intervened by Plots Nos. 179 and 180. Plot No. 179 belonged to Usuf Mian. Ravindra Nath Mukherji on 9-11-1936 purchased a portion of Plot No. 179 from the wife of Usuf Main (Ext. B) for having a passage for his going over to Kutchery road from his house. Plaintiff No. 1 claimed right of easement of necessity over this passage, purchased by Ravindra Nath Mukherjee on the ground that even prior to the purchase both the plaintiff and Ravindra Nath Mukherji used to go to Kutchery road by crossing over Plot No. 179 belonging to Usuf Main. Admittedly the passage is fenced and it opens in the house of Ravindra Nath Mukherjee. According to plaintiff, the passage was fenced sometime in the year 1969 whereas according to the case of the defendant, it was so done sometime in the year 1939 when defendant constructed this house. The remaining portion of Plot No. 178 towards the north was purchased by one Satya Narain Prasad, who has, however, sold it to one Rajpati Prasad, father of Plaintiff No. 2. Plaintiff No. 1 has also sold away his portion of Plot No. 178 to Rajpati"s son, who is plaintiff No. 2 in this suit. Further north of Plot No. 178 is Chitra Mandir Cinema Hall which has a door through which father of plaintiff No. 2 goes to Kutchery road. There is a back door in the house of the father of plaintiff No. 2 which opens on the land which plaintiff No. 2 has purchased from plaintiff No. 1. In the suit the plaintiffs have prayed that they have right of easement of necessity over survey plots Nos. 179 and 180 through the passage shown in blue in the sketch map, belonging to Ravindra Nath Mukherjee and the defendants have no right to obstruct the plaintiffs" right of a passage for going over this land bearing survey plot No. 179 by erecting a wall. They have prayed for demolition of the wall by the defendant. At the present moment it is said that they use the passage over Plot No. 179 by scaling the wall.