* Author
[2024] 4 S.C.R. 357 : 2024 INSC 293
Manisha Mahendra Gala & Ors.
v.
Shalini Bhagwan Avatramani & Ors.
(Civil Appeal No. 9642 of 2010)
10 April 2024
[Pankaj Mithal* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Appellants if had easementary right of the way over the land owned
by the respondents i.e. the disputed rasta. Appellants’ reliance
upon the evidence of their Power of Attorney holder/Manager of
the property (PW-1) to prove their easementary right of way over
the disputed rasta, if proper.
Headnotes
Easements Act, 1882 – ss.4, 13, 15 – “Easementary right” –
Easementary right by prescription or necessity – When not
proved:
Held: ‘Easement’ u/s.4 is a right which the owner or occupier of
a land possesses for the beneficial enjoyment of his land on the
other land which is not owned by him, to do and continue to do
something or to prevent and continue to prevent something being
done on the said land – In the present case, the Appellants are
admittedly the owners of Survey No. 48 Hissa No.15 whereas
the respondents are the owners of Survey No.57 Hissa No.13A/1
on which the rasta in dispute allegedly exists – Appellants
claimed that the use of the aforesaid rasta was for the beneficial
enjoyment of their land as they had no other way of access to
their land and that they had been enjoying the said easementary
right for the “last many years” – s.15 provides that for acquiring
any easementary right by prescription, the said right must have
been peaceably enjoyed in respect of the servient heritage (the
land on which the easement is claimed) without any interruption
for over 20 years – However, neither the original plaintiff nor the
Appellants specifically claimed that they or their predecessorin-interest were enjoying easementary right of use of the said
rasta for over 20 years – The term “last many years” is not
sufficient to mean that they have been enjoying the same for the
358 [2024] 4 S.C.R.
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last 20 years – Therefore, their pleadings fall short of meeting
the legal requirement of acquiring easementary right through
prescription – No evidence to prove that the Appellants were in
use of the said land for the last over 20 years uninterruptedly
– They entered the scene only on purchasing the said land on
17.09.1994 after the suit was filed and as such, they could not
and have not deposed anything about the pre-existing right or
the easementary right attached with the Dominant Heritage (the
land which is to be enjoyed by the beneficiary) – The said right
has to be proved as existing prior to the institution of the suit –
Neither the Appellants nor their predecessor-in-interest came in
the witness box – They only relied upon the deposition of their
Power of Attorney holder/the Manager who was not having any
authority to act as their Power of Attorney at the time his statement
was recorded – He was granted Power of Attorney subsequently
– Further, in the absence of any evidence or material to show
that original plaintiff had actually acquired any easementary
right over the rasta in dispute before the institution of the suit,
he could not have transferred any such right in favour of the
Appellants – Furthermore, there is an alternative way to access
the Dominant Heritage, may be a little far away or longer which
demolishes the easement of necessity u/s.13 – Appellants not
entitled to any easementary right by necessity either upon the
disputed rasta – Thus, they have not acquired easementary right
over the disputed rasta in any manner much less by prescription,
necessity or under an agreement– Appellate courts and High
Court right in dismissing the Suit of the plaintiffs/appellants and
in decreeing the Suit of the defendants/respondents. [Paras 19,
21, 22, 27, 29, 31-33, 40]
Power of Attorney holder – Appellants relied upon the evidence
of their Power of Attorney holder/Manager of the property (PW1) to prove their easementary right of way over the disputed
rasta – Propriety:
Held: Power of Attorney holder can only depose about the facts
within his personal knowledge and not about those facts which are
not within his knowledge or are within the personal knowledge of
the person who he represents or about the facts that may have
transpired much before he entered the scene – PW-1, the Power
of Attorney holder deposed that he was giving evidence on behalf
of plaintiff Nos. 2 to 4 i.e. the Appellants – He was not having
[2024] 4 S.C.R. 359
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
any authority to act as the Power of Attorney of the Appellants at
the time his statement was recorded – He was granted Power of
Attorney subsequently as accepted by the parties – Therefore, his
evidence was completely meaningless to establish that Appellants
have acquired or perfected any easementary right over the disputed
rasta in 1994 when the suit was instituted. [Para 29]
Pleadings – Consideration of:
Held: Pleadings should be liberally construed and need not contain
the exact language used in the statutory provision but it does not
mean that the pleadings even if fails to plead the essential legal
requirement for establishing a right, the same be so construed
so as to impliedly include what actually has not been pleaded
more particularly when it happens to be an essential ingredient
for establishing a right – In the present case, the pleadings of the
plaintiffs/appellants fall short of meeting the legal requirement of
acquiring easementary right through prescription and cannot be
treated to be of sufficient compliance of the statutory requirement
– A fact which is not specifically pleaded cannot be proved by
evidence as evidence cannot travel beyond the pleadings. [Para
23]
Easementary right – Claimed under the Sale Deed – Propriety
– Appellants claimed that they acquired easementary right
under the Sale Deed dated 17.09.1994 (photocopy produced)
and that it would not stand extinguished even if the necessity
has ceased to exist:
Held: Property owned and possessed by the Appellants was
originally the property of one ‘RB’ which was acquired by the
government – It was purchased by ‘WF’ in public auction from the
government – Thereafter, it devolved upon his legal heir ‘JWR’
who sold it to the predecessor-in-interest of the Appellants vide
Sale Deed dated 17.09.1994 – There is no evidence on record to
establish that the government ever transferred any easementary
right over the rasta in question to ‘WF’ or that his legal heir
‘JWR’ ever acquired or perfected any easementary right over it –
Therefore, the right which was not possessed by them could not
have been transferred to the Appellants under the Sale Deed dated
17.09.1994 – Further, the said Sale Deed dated 17.09.1994 in
original was not produced in evidence – It was only the photocopy
of the same which was brought on record – Photocopy of a
document is inadmissible in evidence – Moreover, the said sale
360 [2024] 4 S.C.R.
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deed was executed by predecessor-in-interest i.e. ‘JWR’ in favour
of predecessor-in-interest of the present appellants – The said sale
deed would not bind the third parties who are not signatories or
parties to the said sale deed – No evidence adduced to prove that
‘JWR’, predecessor-in-interest of the Appellants, had perfected
easementary rights over the disputed rasta and thus was legally
entitled to transfer the same. [Paras 35, 36]
Code of Civil Procedure, 1908 – s.107 – Powers of the appellate
court in disturbing the findings recorded by the court of first
instance:
Held: First appellate court is empowered to exercise powers
and to perform nearly the same duties as of the courts of
original jurisdiction – Therefore, the first appellate court has the
power to return findings of fact and law both and in so returning
the finding, it can impliedly overturn the findings of the court
of first instance if it is against the evidence on record or is
otherwise based upon incorrect interpretation of any document
or misconstruction of any evidence adduced before the court
of first instance. [Para 39]
Case Law Cited
Dr. S. Kumar & Ors. v. S. Ramalingam [2019] 10 SCR
531 : (2020) 16 SCC 553 – held inapplicable.
Ram Sarup Gupta (Dead) By Lrs. v. Bishun Narain Inter
College & Ors. [1987] 2 SCR 805 : (1987) 2 SCC 555;
Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. [2004]
Suppl. 6 SCR 681 : (2005) 2 SCC 217; A.C Narayan
v. State of Maharashtra [2013] 11 SCR 80 : (2014) 11
SCC 790 – referred to.
List of Acts
Easements Act, 1882; Code of Civil Procedure, 1908.
List of Keywords
Easement; Easementary right; Right of the way; Power of Attorney
holder; Facts within his personal knowledge; Easementary right by
prescription or necessity; Last many years; Pleadings; Evidence
cannot travel beyond the pleadings; Dominant Heritage; Servient
heritage; Sale Deed; Photocopy of a document inadmissible in
evidence; Powers of the appellate court.
[2024] 4 S.C.R. 361
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No.9642 of 2010
From the Judgment and Order dated 01.10.2009 of the High Court
of Judicature at Bombay in SA No. 369 of 2009
With
Civil Appeal No. 9643 of 2010
Appearances for Parties
Huzefa Ahmadi, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, Ankur
Saigal, Shashwat Singh, Ms. Vidisha Swarup, Ms. Vidisha Swrup,
E. C. Agrawala, Advs. for the Appellants.
Devansh Anoop Mohta, Shishir Deshpande, Amit Yadav, Nilakanta
Nayak, Kaushal Narayan Mishra,Ms. Sujata Kurdukar, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Pankaj Mithal, J.
1. The dispute in the above two appeals is in connection with
easementary rights over 20ft. wide road situated over land Survey
No.57 Hissa No.13A/1 which is presently owned by the respondents
herein (hereinafter the ‘Ramani’s’).
2. In Suit No.14 of 1994 instituted by Joki Woler Ruzer, the descendants
of the subsequent purchaser Mahendra Gala were added as plaintiff
Nos.2-4 (hereinafter the ‘Gala’s’). The suit was for declaration of their
easementary rights over the 20ft. wide road situate in the property
of the Ramani’s and for permanent injunction in respect thereof. The
suit was decreed by the court of first instance vide judgment and
order dated 06.02.2003. However, the aforesaid judgment and decree
was set aside in appeal by the Ad-hoc District Judge-2, Raigad, vide
judgment and order dated 12.03.2009 and the suit was dismissed.
The High Court vide impugned judgment and order dated 01.10.2009
upheld the aforesaid judgment and order of the appellate court in
Second Appeal No.305 of 2009.
3. Apart from the above suit, Suit No.7 of 1996 came to be filed by
the Ramani’s for declaring that the Gala’s or their predecessor-in-
362 [2024] 4 S.C.R.
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interest have no right, title and interest in the property and they do
not have any right of way through the above land. The aforesaid
suit was dismissed vide judgment and order dated 06.02.2003 by
the court of first instance i.e. Civil Judge, Junior Division, Murud.
On the appeal being preferred, the judgment and order passed by
the court of first instance was set aside and the suit was decreed
holding that the Gala’s have no right of way either by easement of
prescription or of necessity on the suit land/road. The Gala’s were
restrained from disturbing the possession of Ramani’s over the suit
land and from doing any overt act over it.
4. Aggrieved by the dismissal of their Suit No.14 of 1994 and the
decreeing of the Suit No.7 of 1996 of the Ramani’s, these two appeals
have been preferred by the Gala’s. Their predecessor-in-interest
Joki Woler Ruzer has not joined and has not preferred any separate
appeal. Meaning thereby, that the original plaintiff has accepted the
verdict of the High Court.
5. It would be necessary and beneficial to recapitulate certain background
before considering the submissions of the respective parties to arrive
at any conclusion with regard to their rights over the suit land, more
particularly on the road in question.
6. There is no dispute that one Ramchandra Borkar was the owner of
the vast land situate in Mouje Korlai, Taluka Murud, District Raigad,
Maharashtra i.e. Survey No.48 Hissa No.15 and Survey No.57
Hissa No.13. The aforesaid Ramchandra Borkar fell into arrears
of government dues recoverable as arrears of land revenue and,
therefore, his aforesaid properties were acquired by the government.
Subsequently, a part of the aforesaid property i.e. land Survey No.48
Hissa No.15 was sold out by the government on 25.04.1969 through
public auction in favour of one Woler Francis who was also put in
possession thereof on 08.07.1969. Thus, Woler Francis became the
exclusive owner in possession of land Survey No.48 Hissa No.15
admeasuring 1 hectare and 76 acres situated at Mouje Korlai Taluka,
Murud, District Raigad.
7. The remaining land which was initially possessed by Ramchandra
Borkar and which was acquired by the government, was subsequently
re-acquired by one Vasant Ramchandra Borkar, of the family of original
owner Ramchandra Borkar. The said Vasant Ramchandra Borkar sold
out a piece of the said land on 09.07.1988 to one Dharmadhikari
[2024] 4 S.C.R. 363
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
being land Survey No.57 Hissa No.13A/2. The balance land which
was essentially a part of Survey No.57 was sold to the family of
Ramani’s by a registered Sale Deed dated 11.09.1989 and was
numbered as Survey No. 57 Hissa No. 13A/1.
8. In this way, the entire property of the Borkar family comprising of
Survey No.48 Hissa No.15 and Survey No.57 Hissa No.13 which was
acquired by the government came into the hands of Woler Francis
(Survey No.48 Hissa No.15); the family of Ramani’s (Survey No.57
Hissa No.13A/1); and the family of Dharmadhikari (Survey No.57
Hissa No.13A/2).
9. The road in dispute on which easementary rights are claimed by the
Gala’s forms part of Survey No.57 Hissa No.13A/1 which is under
the ownership of the Ramani’s.
10. Sometime in 1994, Woler Francis died and he was succeeded by
his heir and legal representative Joki Woler Ruzer. When his use of
the above 20ft. wide road was objected to by the Ramani’s, he filed
Suit No.14 of 1994 for declaration of his easementary rights over
the said land and for a decree of permanent injunction. During the
pendency of the said suit, the aforesaid Joki Woler Ruzer transferred
and assigned his rights of the entire land i.e. Survey No.48 Hissa
No.15 in favour of one Mahendra Gala, the predecessor-in-interest
of the Gala’s. The aforesaid Mahendra Gala was impleaded as
plaintiff in the aforesaid suit on 28.07.1998 and subsequently on
his death, the present Gala’s were substituted as his heir and legal
representative.
11. The suit was contested by the Ramani’s by filing a written statement.
They resisted the claim of the Gala’s regarding easementary rights
over the disputed rasta. They contended that they have purchased
the property Survey No.57 Hissa No.13A/1 and categorically denied
use of the said rasta uninterruptedly by the Gala’s.
12. In the said suit, oral and documentary evidence were adduced by
the parties. The Gala’s produced Navneet Liladhar Hariya, their
Power of Attorney holder and the Manager of the property as PW-1,
Bhalchandra Nathura Choradhekar, Sarpanch of the village as PW2, Dattatray Shankar Sawant, one of their neighbours as PW-3 and
Bhalchandra Dattaram Tandel, Surveyor as PW-4, in order to prove
their easementary right of way over the disputed rasta.
364 [2024] 4 S.C.R.
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13. The Gala’s also relied upon the sale deed by which Joki Woler Ruzer
had transferred and assigned his rights in land Survey No.48 Hissa
No.15 in favour of Mahendra Gala, the predecessor of the Gala’s.
14. The Ramani’s examined Sanjay Borkar as DW-1 and filed certified
copy of the deposition of one Arjun Ramani. Additionally, they brought
on record purshis Exh.165 and Exh.170.
15. On the basis of the pleadings of the parties and the evidence
adduced, the trial court framed several issues but the primary issue
was whether the Gala’s have any easementary right of way over the
land of the Ramani’s i.e., the disputed rasta.
16. We had heard Shri Huzefa Ahmadi, learned senior counsel for the
appellants and Shri Devansh Anoop Mohta, learned counsel for the
respondents.
17. The main thrust of the argument of Shri Huzefa Ahmadi, learned
senior counsel for the Gala’s (appellants in both the civil appeals)
is that Gala’s are undisputedly the owners in possession of the land
Survey No.48 Hissa No.15 and since they have no alternative way of
access to the said land except the rasta in dispute, the only option to
them is to have egress and ingress through the said rasta for use of
their land. They have acquired easementary right by prescription and
that of necessity over the said rasta and more particularly through
an agreement i.e. the Sale Deed dated 17.09.1994 which records
their right of way through the said rasta. He further submits that once
the suit was decreed by the court of first instance and findings were
recorded in favour of the Gala’s, the appellate court ought not to
have overturned those findings. It ought to have exercised restrain
in interfering with the aforesaid decision.
18. The above submissions were stoutly opposed on behalf of the
Ramani’s by their counsel.
19. ‘Easement’ is defined under Section 4 of the Indian Easements
Act, 18821
to mean a right which the owner or occupier of a land
possesses for the beneficial enjoyment of his land on the other land
which is not owned by him, to do and continue to do something or to
prevent and continue to prevent something being done on the said
1 Hereinafter referred to as “The Act”, for short
[2024] 4 S.C.R. 365
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
land. It may be pertinent to mention here that the land which is to
be enjoyed by the beneficiary is called ‘Dominant Heritage’ and the
land on which the easement is claimed is called ‘Servient Heritage’.
The easementary right, therefore, is essentially a right claimed by
the owner of a land upon another land owned by someone else so
that he may enjoy his property in the most beneficial manner.
20. Now, we first proceed to examine if the Gala’s have acquired any
easementary right over the rasta in dispute existing on the servient
heritage.
21. In the case at hand, the Gala’s are admittedly the owners of Survey
No. 48 Hissa No.15 whereas the Ramani’s are the owners of Survey
No.57 Hissa No.13A/1 on which it is alleged, exists the rasta in
dispute. The Gala’s claim that the use of the aforesaid rasta is for
the beneficial enjoyment of their land as they have no other way
of access to their land and that they have been enjoying the said
easementary right for the “last many years”.
22. Section 15 of the Act categorically provides that for acquiring any
easementary right by prescription, the said right must have been
peaceably enjoyed in respect of the servient heritage without any
interruption for over 20 years. In the plaint, neither the original plaintiff
Joki Woler Ruzer nor the Gala’s have specifically claimed that they
or their predecessor-in-interest were enjoying easementary right of
use of the said rasta for over 20 years. They simply alleged that they
have been using and managing the same since “last many years”.
The use of the term “last many years” is not sufficient to mean that
they have been enjoying the same for the last 20 years. Last many
years would indicate use of the said rasta for more than a year prior
to the suit or for some years but certainly would not mean a period
of 20 or more years. Therefore, their pleadings fall short of meeting
out the legal requirement of acquiring easementary right through
prescription.
23. In this connection Shri Ahmadi, learned counsel for the appellants,
relying upon “Ram Sarup Gupta (Dead) By Lrs. vs. Bishun Narain
Inter College & Ors”2
submitted that the pleadings must be construed
liberally and it is not necessary that the precise language or expression
2 [1987] 2 SCR 805 : (1987) 2 SCC 555
366 [2024] 4 S.C.R.
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used in the statute should be used. The aforesaid decision lays down
that pleadings should be liberally construed and need not contain the
exact language used in the statutory provision but it does not mean
that the pleadings even if fails to plead the essential legal requirement
for establishing a right, the same be so construed so as to impliedly
include what actually has not been pleaded more particularly when
it happens to be an essential ingredient for establishing a right.
Thus, the aforesaid pleadings cannot be treated to be of sufficient
compliance of the statutory requirement. It is settled in law that a
fact which is not specifically pleaded cannot be proved by evidence
as evidence cannot travel beyond the pleadings.
24. The plaint was filed and verified by Joki Woler Ruzer who has not
entered the witness box to substantiate the pleadings as to for how
long he or his predecessor had been using the said rasta for egress
and ingress to their land before the institution of the suit or to say
that the easementary right, if any, attached to the said land, was
also transferred or purchased by his predecessor.
25. On the contrary, the deposition of Sanjay Borkar (DW-1) who is from
the family of the original owners of the land has categorically stated
that the original plaintiff Joki Woler Ruzer was not having any right
of way on his land and so also the Gala’s (plaintiff Nos.2-4), the
subsequent holders of the land, rather they possess an alternative
way to approach their land.
26. Navneet Liladhar Hariya (PW-1), the Power of Attorney holder of
the Gala’s, stated that the road of 20ft. in width exists on Survey
No.57 Hissa No.13A/1 which is being used as an approach road
to Survey No.48 Hissa No.15. The said rasta was being used by
predecessor-in-interest of the Gala’s but now the Ramani’s have
started raising objection. Since they have no other way of access
to their land, they are being denied connectivity or approach to their
land. As a result, access to the Dominant Heritage stands completely
blocked. In cross-examination, he states that Dharmadhikari has also
purchased some land from Vasant Ramchandra Borkar and that the
said Dharmadhikari is having right of way through the disputed rasta.
PW-2, the then Sarpanch simply deposes that he has knowledge of
the existence of disputed rasta since his childhood. The neighbour
(PW-3) also repeated the same thing and stated that there is a road
from Salav-Murud road which passes through the land of the Ramani’s
[2024] 4 S.C.R. 367
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
up to his land i.e. Survey No.43. The said road is in existence since
long and is being used by the agriculturist. Nobody has ever raised
objection to its use. The Surveyor (PW-4) is alleged to have surveyed
the land on 26.12.1998. He had shown the existence of the road in
dispute in the sketch map prepared by him.
27. The aforesaid evidence simply proves that there exists a road
on Survey No.57 Hissa No.13A/1 for long but that by itself is not
sufficient to prove that the Gala’s have acquired any easementary
right over the same. There is no evidence to prove that the Gala’s
are in use of the said land for the last over 20 years uninterruptedly.
The Gala’s have entered the scene only on purchasing the said land
on 17.09.1994 after the suit had been filed and as such, they could
not and have not deposed anything about the pre-existing right or
the easementary right attached with the Dominant Heritage. The
said right has to be proved as existing prior to the institution of the
suit. Neither the Gala’s nor their predecessor-in-interest Joki Woler
Ruzer have dared to come in the witness box. They have only relied
upon the deposition of their Power of Attorney holder/the Manager.
28. The law as understood earlier was that a General Power of Attorney
holder though can appear, plead and act on behalf of a party he
represents but he cannot become a witness on behalf of the party
represented by him as no one can delegate his power to appear in
the witness box to another party. However, subsequently in Janki
Vashdeo Bhojwani vs. IndusInd Bank Ltd.3
, this Court held that
the Power of Attorney holder can maintain a plaint on behalf of the
person he represents provided he has personal knowledge of the
transaction in question. It was opined that the Power of Attorney
holder or the legal representative should have knowledge about the
transaction in question so as to bring on record the truth in relation
to the grievance or the offence. However, to resolve the controversy
with regard to the powers of the General Power of Attorney holder
to depose on behalf of the person he represents, this Court upon
consideration of all previous relevant decisions on the aspect including
that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State
of Maharashtra4 concluded by upholding the principle of law laid
3 [2004] Suppl..6 SCR 681 : (2005) 2 SCC 217
4 [2013] 11 SCR 80 : (2014) 11 SCC 790
368 [2024] 4 S.C.R.
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down in Janki Vashdeo Bhojwani (supra) and clarified that Power
of Attorney holder can depose and verify on oath before the court
but he must have witnessed the transaction as an agent and must
have due knowledge about it. The Power of Attorney holder who
has no knowledge regarding the transaction cannot be examined
as a witness. The functions of the General Power of Attorney holder
cannot be delegated to any other person without there being a specific
clause permitting such delegation in the Power of Attorney; meaning
thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can only
depose about the facts within his personal knowledge and not about
those facts which are not within his knowledge or are within the
personal knowledge of the person who he represents or about the
facts that may have transpired much before he entered the scene.
The aforesaid Power of Attorney holder PW-1 had clearly deposed
that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the
Gala’s. He was not having any authority to act as the Power of
Attorney of the Gala’s at the time his statement was recorded. He was
granted Power of Attorney subsequently as submitted and accepted
by the parties. Therefore, his evidence is completely meaningless to
establish that Gala’s have acquired or perfected any easementary
right over the disputed rasta in 1994 when the suit was instituted.
30. The only proper and valuable evidence in this regard could have been
that of Joki Woler Ruzer who had instituted the suit but he failed to
depose before the court. His pleadings are also vague and do not
specifically state that he had been in use of the rasta in dispute for
over 20 years or that he had acquired and perfected easementary
right over the said rasta by prescription or necessity.
31. In the absence of any evidence or material to show that Joki Woler
Ruzer had actually acquired any easementary right over the rasta in
dispute before the institution of the suit, he could not have transferred
any such right in favour of the Gala’s.
32. The easementary right by necessity could be acquired only in
accordance with Section 13 of the Act which provides that such
easementary right would arise if it is necessary for enjoying the
Dominant Heritage. In the instant case, findings have been returned
not only by the appellate courts but even by the trial court that there
is an alternative way to access the Dominant Heritage, which may
[2024] 4 S.C.R. 369
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
be a little far away or longer which demolishes the easement of
necessity. There is no justification to go into those findings of fact
returned by the courts below.
33. In the light of the aforesaid findings, the Gala’s are not entitled to
any easementary right by necessity upon the disputed rasta.
34. The next contention is that the Gala’s have acquired easementary
right under the Sale Deed dated 17.09.1994 and that it would not
stand extinguished even if the necessity has ceased to exist. To
buttress the above submission reliance has been placed upon Dr.
S. Kumar & Ors. vs. S. Ramalingam5
. In the above case, the right
of easement claimed was expressly granted under the sale deed to
the buyer and therefore it was held that the right so granted cannot
be defeated or extinguished merely for the reason that easement
of necessity has come to an end.
35. The situation in the present case is quite different. The property
owned and possessed by the Gala’s was originally the property of
Ramchandra Borkar which was acquired by the government. It was
purchased by Woler Francis in public auction from the government
on 25.04.1969. Thereafter, it devolved upon his legal heir Joki Woler
Ruzer who sold it to the predecessor-in-interest of the Gala’s vide Sale
Deed dated 17.09.1994. There is no evidence whatsoever on record
to establish that the government ever transferred any easementary
right over the rasta in question to Francis Woler or that his legal
heir Joki Woler Rozer ever acquired or perfected any easementary
right over it. Therefore, the right which was not possessed by them
could not have been transferred to the Gala’s under the Sale Deed
dated 17.09.1994.
36. The said Sale Deed dated 17.09.1994 in original has not been
produced in evidence. It was only the photocopy of the same which
was brought on record. The photocopy of a document is inadmissible
in evidence. Moreover, the said sale deed was executed by
predecessor-in-interest i.e. Joki Woler Ruzer in favour of predecessorin-interest of the present Gala’s. The said sale deed would not bind
the third parties who are not signatories or parties to the said sale
deed. No evidence has been adduced to prove that Joki Woler Ruzer,
5 [2019] 10 SCR 531 : (2020) 16 SCC 553
370 [2024] 4 S.C.R.
Digital Supreme Court Reports
predecessor-in-interest of the Gala’s, had perfected easementary
rights over the disputed rasta and thus was legally entitled to transfer
the same. He himself has not come before the Court that he had
actually acquired any easementary right in the disputed rasta. It is
not the case of Gala’s that their predecessor-in-interest had acquired
or purchased the said property from government auction with any
easementary right over the rasta in dispute. Thus, the Gala’s have
failed to prove that they have acquired any easementary right under
the sale deed. In view of the above discussion, reliance upon Dr. S.
Kumar & Ors. (supra) is completely misplaced and the submission
in this regard has no merit.
37. Lastly, a frail submission was advanced that one Dharmadhikari,
owner of Survey No. 57 House No. 13A/2 is enjoying easementary
right over the said rasta and, therefore, Gala’s cannot be denied
the same benefit. The submission has been noted to be rejected
for the simple reason that in the Sale Deed Exh. 163, the original
owner Vasant Ramchandra Borkar while transferring land to
Dharmadhikari has specifically assigned right to use the said
rasta to Dharmadhikari and not to anyone else. The predecessorin-interest of the Gala’s i.e., Joki Woler Ruzer or Francis Woler
never acquired any such right under their sale deed so as to legally
transfer it to the Gala’s. DW-1, Sanjay Vasant Borkar, grandson
of the original owner of the entire property, clearly deposed that
the disputed rasta was only for use by Dharmadhikari as per the
sale deed but no such right was sold/assigned to the predecessorin-interest of the Gala’s. Therefore, the Gala’s cannot acquire
easementary right as is enjoyed by Dharmadhikari whose case
stand on a totally different footing.
38. It would not be fair on our part if we do not deal with yet one another
submission of Shri Ahmadi regarding the powers of the appellate
court in disturbing the findings recorded by the court of first instance.
The submission made in this context is quite elementary in nature
as Section 107 of the Code of Civil Procedure, in unequivocal terms,
lays down the powers of the appellate court vis-à-vis to determine
the case finally; to remand the case; to frame issues and refer them
for trial; and to take additional evidence or to require such evidence
to be taken and shall have the same powers to perform duties as
nearly as may be that are conferred by the code to the courts of
original jurisdiction.
[2024] 4 S.C.R. 371
Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.
39. Therefore, on the simple reading of the above provision, it is evident
that the first appellate court is empowered to exercise powers and to
perform nearly the same duties as of the courts of original jurisdiction.
Therefore, the first appellate court has the power to return findings
of fact and law both and in so returning the finding, it can impliedly
overturn the findings of the court of first instance if it is against the
evidence on record or is otherwise based upon incorrect interpretation
of any document or misconstruction of any evidence adduced before
the court of first instance.
40. In view of the facts and circumstances of the case and the above
discussions, we find that none of the contentions raised by Shri
Ahmadi, learned senior counsel for the appellants (Gala’s), are of
any substance. We do not find any basis to record that the Gala’s
have acquired easementary right over the disputed rasta in any
manner much less by prescription, necessity or under an agreement.
Therefore, the appellate courts and the High Court have not committed
any error of law in dismissing Suit No.14 of 1994 of the plaintiffs/
appellants and in decreeing Suit No.7 of 1996 of the defendants/
respondents.
41. The appeals lack merit and are accordingly dismissed.
Headnotes prepared by: Divya Pandey Result of the case:
Appeals dismissed.
