Use of excess police power on peaceful pro-testators is against law and is an offence The law is now well settled that the State or its functionaries cannot deprive any person of his life which includes right to live with human dignity except in accordance with law. whether petitioners have made out a case that their fundamental right to live with human dignity guaranteed by Article 21 of the Constitution of India has been invaded, atleast prima facie, so as to direct for an independent investigation/enquiry so that the perpetrators may not get away scot free if petitioners’ case is found true. = BEENU RAWAT & ORS ... PETITIONERS VS. UNION OF INDIA & ORS. ... RESPONDENTS = published in http://www.supremecourtofindia.nic.in/outtoday/wc446.pdf

Use of excess police power on peaceful pro-testators is against law and is an offence The law is now well settled that the State or its  functionaries cannot deprive any person of his life  which includes right to live with human dignity except  in accordance with law.  whether petitioners have made out a  case that their fundamental right to live with human  dignity guaranteed by Article 21 of the Constitution of  India has been invaded, atleast prima facie, so as to  direct for an independent investigation/enquiry so that  the perpetrators may not get away scot free if  petitioners’ case is found true. = The counter  version of the respondents that the petitioners  indulged in rioting and damaged public property is  neither supported by photographs contained in Annexure  R.2 (colly) nor by the video footage shows to this  Court.  The video  footage shown to us revealed that none of the  protestors were carrying any arms or even brickbats in  course of the protest. The initial part of the  incident discloses lack of any bitterness and almost a  friendly atmosphere.  Thereafter, when copy of the FIR  was shown from a distance but not made available to any  one, the slogans increased and the tone could be  perceived by some persons as irritating.  Barring some  protestors rest were pushed out of the gate of police  station without any resistance or any untoward  incident.  The crowd outside the gate apparently did  not disperse.  The last part of the video footage  fleetingly shows use of lathis by the police men upon  the protestors.  Thereafter, the recording was stopped  15and appears to have been resumed after lapse of  sometime to show some broken glass panes, brickbats in  very limited number and some broken spectacles lying on  the ground, a grim reminder of use of force. No part of the video footage  shows the crowd to be very large or indulging in any  physical violence. Even if this version in the counter  affidavit is accepted in part, one is left to wonder  why the petitioners who had injuries on their bodies  had to be arrested instead of allowing them to disperse  with the crowd which was allegedly large and violent.  It is also intriguing as to why the FIR bearing  No.251/13 for rioting etc. was registered at 5.35 p.m.  after eighteen persons were apprehended at 3.30 p.m.  and not before their arrest if they had vandalized the  18police station and caused damage to the public  property. There is no  dispute that petitioners have received injuries but  according to counter affidavit, these were due to some  of the protestors falling down on the vehicles parked  17along the walls of the compound and there was no lathi  charge or any act of beating of the protestors. Such  statement in paragraph 5 of the counter affidavit  cannot be accepted in view of the last part of the  video footage already noted earlier. Writ Allowed:-  In that view of the  matter, the writ petition is disposed of with the  following directions:- (1) Investigation of FIR No.251/13, as per  order of the Commissioner of Police, Delhi, dated  31.10.2013 shall be carried out by Special  Investigation Team and not by the police officials  of P.S. Gokul Puri. (2) The complaint of the petitioners as made  before this Court regarding violation of their  fundamental right to life and liberty shall be  enquired into by the National Human Rights  Commission expeditiously. For that purpose the  Commission may use its statutory powers including  those under Sections 13 and 14 of the Protection  of Human Rights Act, 1993. 23(3) The Commission shall take further required  steps and action as per law after concluding the  enquiry/investigation so that persons(s) found  guilty may be subjected to required penalty  according to law, without undue delay. 21. The writ petition is allowed to the aforesaid  extent. REPORTABLE IN THE SUPREME COURT OF INDIA ORIGINAL CIVIL WRIT JURISDICTION  WRIT PETITION (CIVIL) NO.446 OF 2013  BEENU RAWAT & ORS ... PETITIONERS VS. UNION OF INDIA & ORS. ... RESPONDENTS J U D G M E N T SHIVA KIRTI SINGH,J. The petitioners claim to be young volunteers of  ‘Aam Aadmi Party’ (AAP) engaged in selfless work for  the improvement of democratic institutions of this  country and also fight for justice.  They have  approached this Court under Article 32 of the  Constitution of India seeking the following reliefs: “(a) Issue a writ of mandamus or any other  writ or direction to order an independent  investigation by a Special Investigation  Team into the abovementioned incident of  police atrocities which took place on  19.06.2013 at Gokul Puri Police Station  against the petitioners and if such  allegations are found correct, pass further  consequential and necessary directions,  including initiation of criminal  prosecution as well as disciplinary  proceedings against the police officers of  the Delhi Police found involved and also  against those senior police officers at  whose behest this vindictive act of  atrocity was done; (b) issue a writ of mandamus or any other  writ or direction to award monetary  compensation to the petitioners for their  illegal arrest and torture by the Delhi  Police which has resulted in gross  violation of their fundamental rights to  live with dignity as guaranteed under  Article 21 of the Constitution of India; (c) pass such other and further order/s as  this Hon’ble Court may deem fit and proper  on the facts and in the circumstances of  the case.” 2. The incident of 19.06.2013 at Gokal Puri Police  Station in Delhi which is mentioned in prayer no. (a)  noted above, occurred in course of a protest by the  volunteers of (AAP) at Gokal Puri Police Station since  2morning hours.  The protestors wanted registration of an  FIR in respect of an alleged occurrence of rape of a  poor woman by two persons in Bhagirathi Vihar.  Allegedly the police was reluctant to register the FIR  and hence a number of volunteers including the  petitioners joined the protest. The FIR was ultimately  registered around 2.30 p.m. and the protestors were  informed of the same. A demand was made for a copy of  the FIR. According to respondents the copy could not  be given to others because of the nature of the alleged  crime which requires that name of the victim be not  disclosed. According to petitioners the copy of the  FIR was not given even to victim’s husband. It is the  case of the petitioners that when they were planning to  wind up the protest, they were suddenly rounded up by a  large number of policemen and mercilessly beaten by  them. The manner of chase and beating by lathi gave an  impression to the petitioners that the police action  was not to disperse the petitioners but to teach them a  lesson. As per allegations, the police also used  3abusive language and told the protestors that they will  be taught a lesson so that they do not indulge in such  kind of protests in future. Initially, police arrested  seventeen volunteers but three of them were let off as  they were minor girls. Subsequently, petitioner Nos. 2  and 10 were also taken into custody and allegedly  beaten in police custody although they claimed that  they had come to the police station later only to  enquire about the incident. The nineteen petitioners  claim to have sustained serious injuries on head, back,  arm and legs. One of them (petitioner no.17) has  sustained fracture in lower ulna but he managed to run  away. 3. According to the case of the petitioners the police  had indulged in unlawful use of force and inflicted  injuries before arrest and also during custody, leading  to injuries to the petitioners; the arrest was unlawful  which is sought to be justified by fabricated evidence  for rioting etc.; by breaking window glasses and  4tearing of some papers in the police station. According  to the petitioners a serious case was attempted to be  made out through subsequent statement of one ASI of  police, Ms. Sushila. There is no such incident  mentioned in the FIR bearing no. 251/2013 dated  19.06.2013 registered at P.S. Gokul Puri and even  before the learned Metropolitan Magistrate she had  alleged that only her scarf (dupatta) was pulled by  protestors. The petitioners have claimed that the  Commissioner of police, Delhi, has made an incorrect  statement that Delhi police has videos of protestors  vandalizing the police station. To decide the case it  is not necessary for this Court to delve deep into  allegations made by the petitioners or those against  them by the police which has lodged a criminal case of  rioting etc. as noted above. This is because there is  no prayer made in this writ petition seeking any kind  of intervention in the investigation of police case  registered against the petitioners. Even the first  prayer made by the petitioners is to order an  5independent investigation by a Special Investigation  Team (SIT) into the incident of 19.06.2013 to find out  the truthfulness of allegations of police atrocities  and if such allegations are found right then further  consequential orders be passed for criminal prosecution  as well as disciplinary action against the concerned  police officers. Hence, the issue before the Court is  a limited one requiring a careful appraisal of relevant  facts and circumstances for coming to a conclusion as  to whether the petitioners have made out a case for  issuing a direction to order an independent  investigation into the alleged incident of 19.06.2013  at Gokal Puri Police Station, Delhi or not. 4. In this background a look at the counter affidavit  on behalf of the respondents discloses that the version  given by the police attempts to portray a picture that  when the prosecutrix or the victim of alleged rape came  to the police station along with her husband at about  9.00 a.m. on 19.06.2013, the S.H.O. immediately deputed  6a lady A.S.I., Ms. Sushila to investigate into the  matter and a female counselor, Mrs. Dinesh Panchal from  a local NGO was also called for the aid of prosecutrix.  A Daily Diary entry to this effect bearing no.11-A was  made at 9.10 a.m. and a statement of the victim was  recorded by the lady A.S.I. in presence of counselor  from the NGO. On that basis FIR No. 250/13 was  registered under Section 376-D/506 of the Indian Penal  Code at 10.05 a.m. and thereafter the victim was sent  for medical examination to Guru Teg Bahadur Hospital,  New Delhi. The fact of lodging of the FIR was conveyed  to the protestors but still by 12.00 noon their number  increased to 100-125 which included 20-25 women. A  lady ASI was deputed to control the female protestors.  Demand for getting a copy of FIR was declined by the  S.H.O. with a view not to reveal the identity of the  victim. 5. It is found that the counter version does not deny  or even refer to the presence of husband of the victim  7and there is no disclosure of any reason as to why copy  of the FIR was not supplied to the victim or her  husband. Had that been done, the bone of contention  between the rivals could have been totally taken care  of. 6. According to the counter affidavit the protestors  were all around the compound of the police station and  had also entered the corridor thus blocking the entry  and exit of the officials and obstructing them in  performing their official duties. The protestors  climbed the compound walls and shouted slogans. They  abused the police officials and some of them pelted  stones causing damage to building windows and vehicles.  The police staff was trapped inside the police station  being out-numbered by the large number of protestors.  The violent acts of the crowd allegedly caused injuries  to five police personnels. Their injury reports have  been annexed as Annexure R.1 (colly). The lady A.S.I.  engaged in controlling the women protestors was  8manhandled by the crowd and sustained injuries. To  support the claim that protestors had entered the  premises, blocked entry to the police station, pelted  stones and damaged public property, some photographs  have been brought on record as Annexure R.2 (colly). 7. Paragraph 5 of the counter affidavit is crucial as  it relates to the most significant part of the incident  in which injuries were caused to some of the  petitioners leading to their arrest. Paragraph 5 runs  as follows:- “5. As the crowd had become  uncontrollable, the SHO, PS Gokul Puri  reported the situation to the senior  officers and asked for the deployment of  additional police force from adjoining  Police Stations, PS Jyoti Nagar and PS  Bhajan Pura, to control the crowd. With the  help of the additional force, efforts were  made to disperse the crowd and help the  officials trapped inside the Police Station  Gokul Puri. Arrival of the additional  force from the adjoining police stations  created panic amongst the protestors and  they started dispersing in various  directions. Some of the protestors who had  climbed the walls of the Police Station  fell down on the vehicles parked by the  wall and sustained injuries on their own.  9There was no lathi charge or any act of  beating of the protestors as wrongly  alleged by the Petitioners.” 8. It has also been disclosed in the counter affidavit  that till 3.30 p.m. eighteen persons were apprehended  on the spot which included three minor girls, four  women and eleven men. FIR was registered against the  protestors bearing no.251/13 at 5.35 p.m. The three  minor girls were let off at about 7.00 p.m. when their  parents arrived. The remaining fifteen were however  arrested. They were sent for medical examination to  Ram Manohar Lohiya Hospital and then produced before  the Duty Magistrate at 2.20 a.m. in the morning and  then sent to Tihar jail. Petitioner No. 10-Narender  Rawat, brother of minor petitioner no.1 Beenu Rawat and  also petitioner no.4-Pushpa is claimed to have been  arrested in the morning of 20.06.2013 because he had  escaped on the previous date. Petitioner No.17 along  with four other persons had also allegedly escaped and  they were arrested on 21.08.2013. 109. In paragraph 8 of the counter affidavit a  submission has been advanced that petitioners are  trying to mislead this Court by making wrong  allegations that police used excessive force against  them. The defense in this paragraph is that the  protestors had outnumbered and over run the police  officers at police station Gokal Puri, obstructing them  from performing their official duties and caused damage  to public property on the pretext of helping a rape  victim.  10. According to respondents, there was no lapse on  behalf of the police to help the prosecutrix and the  police resorted to the minimal use of force only enough  to disperse the large violent crowd and safeguard the  police personnel trapped inside the police station. 11. As indicated earlier, at the present stage when the  criminal case is under investigation it will not be  proper for this Court to finally decide any issue  11relating to that case. The pendency of investigation  in that case notwithstanding, this Court has to decide  the limited issue  whether petitioners have made out a  case that their fundamental right to live with human  dignity guaranteed by Article 21 of the Constitution of  India has been invaded, atleast prima facie, so as to  direct for an independent investigation/enquiry so that  the perpetrators may not get away scot free if  petitioners’ case is found true.  12. In part III of the Constitution of India Article  21 enjoys special status. Right to life and Right to  liberty are of historical importance. Rise of modern  democratic state is attributable to a long drawn battle  waged by ordinary people against the sovereign power.  The law is now well settled that the State or its  functionaries cannot deprive any person of his life  which includes right to live with human dignity except  in accordance with law.  The maximum threat to such  fundamental right is perceptible when any kind of  12protest or agitation is directed against the police  force for reasons which are self-evident.  Police is  licensed to carry arms for protecting the people.  This  itself creates a situation where the power of arms may  be misused under the mistaken belief in the absolutism  of the police power or on account of lack of  sensitivity to the democratic rights of the people to  register peaceful protest, against wrongs, especially  that of public functionaries.  The submissions on  behalf of respondents that nobody can be permitted to  paralyse the functioning of police or other State  institutions in a name of public protest can not be  rejected off hand because it is only a corollary of the  right to protest peacefully;  proverbially the other  side of the coin which corroborates the well accepted  principle that rights without duties tend to degenerate  into license for misuse of rights. In a given case,  the facts may lead to such conclusions. Hence facts  and circumstances in such cases need to be scrutinized  carefully. 1313. In the present case also the relevant facts require  to be noticed in order to arrive at a conclusion  whether the petitioners’ prayers deserve to be allowed  or not.  The petitioners are ordinary persons with  clean antecedents. The injuries caused to the  petitioners in the incident have not been denied as  they are supported by medical reports.  So far as  injuries to some of the police officers are concerned,  instead of forming our own opinion, we may only refer  to the order dated 22.06.2013 passed by the Vacation  Judge (NE)/Additional Sessions Judge contained in  Annexure P.11.  While granting bail to 11 applicants, in  paragraph 6, the learned Judge had noted that the MLCs  of five police officials indicate that they have  suffered from minor injuries which were in the form of  scratches and abrasion only and the FIR does not  indicate that the lady police officials were assaulted  or any attempt to outrage their modesty was made by the  accused persons. 1414. Since a claim was made that unlawful acts of the  protestors had been recorded through videography which  was available with the respondents, learned Additional  Solicitor General Sidharth Luthra made arrangements for  screening of the video tape for our perusal.  The video  footage shown to us revealed that none of the  protestors were carrying any arms or even brickbats in  course of the protest. The initial part of the  incident discloses lack of any bitterness and almost a  friendly atmosphere.  Thereafter, when copy of the FIR  was shown from a distance but not made available to any  one, the slogans increased and the tone could be  perceived by some persons as irritating.  Barring some  protestors rest were pushed out of the gate of police  station without any resistance or any untoward  incident.  The crowd outside the gate apparently did  not disperse.  The last part of the video footage  fleetingly shows use of lathis by the police men upon  the protestors.  Thereafter, the recording was stopped  15and appears to have been resumed after lapse of  sometime to show some broken glass panes, brickbats in  very limited number and some broken spectacles lying on  the ground, a grim reminder of use of force. 15. Learned senior counsel for the petitioners Mr.  Shanti Bhushan has relied upon some past incidents,  specially one relating to unfortunate death of a police  constable in the course of demonstration against the  gang rape to a paramedical student “Damini” in  December, 2012, followed by another unfortunate case of  a five years’ old victim “Gudiya” which led to protest  by members of AAP and in course of the same petitioner  no.1 was slapped by an Assistant Commissioner of Police  of Delhi force which led to suspension of the said ACP.  He also referred to some allegations against the  erstwhile Delhi Police commissioner. On the basis of  those incidents and allegation it was submitted that  Delhi police cannot be relied for fair investigation in  a case of present nature involving members of ‘AAP’ and  16therefore the Court should order for fair investigation  by an independent agency. 16. On the other hand, Mr. Luthra submitted that police  itself acted fairly and did not submit charge-sheet  against any of the accused persons arrested for causing  death of constable Subhash Tomar. He pointed out that  the concerned ACP who had slapped petitioner No.1 was  placed under suspension. According to him the  allegations that the erstwhile Delhi Police  Commissioner was close to a white collared criminal,  has no substance and that matter cannot have any effect  upon the investigation of the present incident. 17. In our considered view it is not necessary to  examine the effect of earlier incidents for the purpose  of deciding the present writ petition.  There is no  dispute that petitioners have received injuries but  according to counter affidavit, these were due to some  of the protestors falling down on the vehicles parked  17along the walls of the compound and there was no lathi  charge or any act of beating of the protestors. Such  statement in paragraph 5 of the counter affidavit  cannot be accepted in view of the last part of the  video footage already noted earlier. A glimpse of  action taken by the police is available in paragraph 8  of the counter affidavit wherein it is claimed that  Police resorted to minimal use of force which was only  enough to disperse a large violent crowd and safeguard  the police personnel.  No part of the video footage  shows the crowd to be very large or indulging in any  physical violence. Even if this version in the counter  affidavit is accepted in part, one is left to wonder  why the petitioners who had injuries on their bodies  had to be arrested instead of allowing them to disperse  with the crowd which was allegedly large and violent.  It is also intriguing as to why the FIR bearing  No.251/13 for rioting etc. was registered at 5.35 p.m.  after eighteen persons were apprehended at 3.30 p.m.  and not before their arrest if they had vandalized the  18police station and caused damage to the public  property. 18. In the light of the aforesaid discussions and the  fact that the video footage recorded at the instance of  the police does not show acts of rioting or any arms or  brickbats in the hands of the protestors and the  recording was stopped as soon as police started using  lathis upon the protestor, we are left with no option  but to hold, at least prima facie, that in the incident  in question, peaceful protestors were subjected to  beating by lathis etc. by the police force which  included policemen from the concerned police station as  well as force called from adjoining police station,  P.S. Jyoti Nagar and P.S. Bhajanpura. The counter  version of the respondents that the petitioners  indulged in rioting and damaged public property is  neither supported by photographs contained in Annexure  R.2 (colly) nor by the video footage shows to this  Court.  In that view of the matter, the whole incident  19of 19.06.2013 at Gokul Puri Police Station, District  North-East, Delhi requires to be investigated/enquired  by an independent agency or by a Special Investigation  Team.  Considering the possibility of our arriving at  this opinion we had requested learned counsel for the  rival parties to provide us proposals containing names  of some persons who could be entrusted with conducting  investigation in the said incident.  On behalf of the  petitioners two names have been proposed which are as  follows: 1. Sh. I.C.Dwivedi, IPS (RTD.), Former Director General of Police,  Uttar Pradesh,  Address: 9/26, Vishal Khand, Gomati  Nagar, Lucknow. 2. Sh. N.Dilip Kumar, IPS (Retired)  Special Commissioner Delhi Police also worked as Joint Commissioner of  police (Vigilance) Delhi Police Worked in CBI for seven years 20Address: 16 A, Rajpura Road, Civil  Lines, Delhi. 19. On the other hand, on behalf of the respondents  only a letter addressed to Sh. Sidharth Luthra, leaned  Additional Solicitor General along with copy of an  order dated 31.10.2013 issued from the office of  Commissioner of Police, Delhi, has been submitted to us  to show that since during the course of hearing of this  matter this Court had expressed the need for an  impartial or fair investigation by some other competent  setup, the Commissioner of Police Delhi has approved  for formation of a Special Investigation Team headed by  Sh. Bhisham Singh DCP/Crime to work under close  supervision of Joint Commissioner of Police, Crime,  Delhi. 20. So far as investigation of the FIR No. 251/13 is  concerned, in our considered view it has rightly been  transferred from police station Gokal Puri to a Special  Investigation Team.  However that can not take care of  the petitioners’ grievances that they have been  21subjected to excessive use of force and abuses etc. and  that the force used was not at all justified and hence  they have been deprived of their fundamental right to a  life of dignity.  In view of our prima facie findings  noted above, we are of the view that the grievances of  the petitioners require investigation by an authority  having statutory jurisdiction in such matters.  If the  State had itself suggested names of the persons who  could constitute Special Investigation Team for the  purpose, the matter would have been different and we  could have considered to direct for formation of such a  team by the State by selecting persons from the names  suggested by the parties.  But in the absence of such  option, we direct the National Human Rights Commission  to enquire into the complaint of the petitioners  regarding violation of their fundamental rights  particularly one under Article 21 of the Constitution  of India.  Such direction is granted in view of Section  12(A) of the Protection of Human Rights Act, 1993.  Under that Act the definition of “Human Rights” is  22large enough to include rights relating to life,  liberty, equality and dignity of the individual  guaranteed by the Constitution.  In that view of the  matter, the writ petition is disposed of with the  following directions:- (1) Investigation of FIR No.251/13, as per  order of the Commissioner of Police, Delhi, dated  31.10.2013 shall be carried out by Special  Investigation Team and not by the police officials  of P.S. Gokul Puri. (2) The complaint of the petitioners as made  before this Court regarding violation of their  fundamental right to life and liberty shall be  enquired into by the National Human Rights  Commission expeditiously. For that purpose the  Commission may use its statutory powers including  those under Sections 13 and 14 of the Protection  of Human Rights Act, 1993. 23(3) The Commission shall take further required  steps and action as per law after concluding the  enquiry/investigation so that persons(s) found  guilty may be subjected to required penalty  according to law, without undue delay. 21. The writ petition is allowed to the aforesaid  extent. …………………………………………………J.  (G.S. Singhvi) …………………………………………………J.  (Shiva Kirti Singh) …………………………………………………J.  (C. Nagappan) New Delhi, November 19, 2013  24ITEM NO.1A COURT NO.3 SECTION PIL (for Judgment)  S U P R E M E C O U R T O F I N D I A  RECORD OF PROCEEDINGS WRIT PETITION (CIVIL) NO(s). 446 OF 2013 BEENU RAWAT & ORS. Petitioner(s)  VERSUS UNION OF INDIA & ORS. Respondent(s) Date: 19/11/2013 This Petition was called on for Judgment  today. For Petitioner(s)  Mr. Prashant Bhushan,Adv. For Respondent(s)  Mr. D.S. Mahra ,Adv Hon'ble Mr. Justice Shiva Kirti Singh  pronounced the Judgment of the Bench comprising  Hon'ble Mr. Justice G.S. Singhvi, His Lordship and  Hon'ble Mr. Justice C. Nagappan. The Writ Petition is allowed to the extent  indicated in the Judgment.  (Rajesh Dham) (Renu Diwan)  Court Master Court Master  (signed reportable judgment is placed on the file) 25

Specific Relief Act, 1963 - Agreement to sell land - Non-execution of - Suit for specific performance - Grant of decree and plea of seller that time was essence of contract rejected - However, High Court setting aside the decree - Validity of - Held: Recital in the agreement that earnest money would be forfeited upon failure to execute agreement within stipulated period makes it clear that parties never intended time to be essence of contract - More so, seller did not prove his plea - Thus, decree granted by trial court upheld - Buyer directed to deposit balance consideration amount and seller would execute sale deed. = PETITIONER: Balasaheb Dayandeo Naik (Dead)through LRs & Ors RESPONDENT: Appasaheb Dattatraya Pawar = published in http://judis.nic.in/supremecourt/helddis.aspx

Specific Relief Act, 1963 - Agreement to sell land - Non-execution of - Suit for specific performance - Grant of decree and plea of seller that time was essence of contract rejected - However, High Court setting aside the decree - Validity of - Held: Recital in the agreement that earnest money would be forfeited upon failure to execute agreement within stipulated period makes it clear that parties never intended time to be essence of contract - More so, seller did not prove his plea - Thus, decree granted by trial court upheld - Buyer directed to deposit balance consideration amount and seller would execute sale deed.

The respondent-defendant entered into an agreement for sale of agricultural lands to the appellant-plaintiffs for a consideration amount. The sale deed was to be executed by the defendant within six months and the possession of lands was to be delivered at the time of execution of sale deed. The plaintiffs paid the earnest money and balance amount was to be paid at the time of execution of sale deed. However, the defendant did not execute the agreement. The plaintiffs filed suit for specific performance of agreement. The trial court decreed the suit holding that the defendant failed to prove that time was the essence of contract and the plaintiffs were and are ready and willing to perform their part of contract. The High Court set aside the order of trial court. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1.1 In the case of sale of immoveable property, there is no presumption as to time being the essence of the contract. Even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract. [Para 10] [1176-E]

1.2 The defendant in his written statement made a bald claim that the time was the essence of contract. Even if the recital in the agreement of sale is accepted that the sale deed has to be executed within a period of six months, there is an express provision in the agreement itself that failure to adhere the time, the earnest money will be forfeited. In such circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear that time was never intended by the parties to be of essence. [Para 13] [1178-E & F]

1.3 The appellants/plaintiffs clearly established their claim to secure specific performance of the agreement by leading cogent evidence whereas the respondent/defendant having pleaded that time was the essence of the contract neither entered the witness box nor led any evidence whatsoever. The defendant did not bother to prove his claim on oath before the Court to the effect that it was the plaintiffs who avoided performing their part of contract. Neither the terms of agreement nor the intention of the parties indicate that the time is an essence of the agreement. All the above-mentioned material aspects were correctly appreciated by the trial court and unfortunately the High Court lost sight of the above material aspect and the conduct of the defendant in not strengthening his plea by placing acceptable evidence. In such circumstances, the High Court should have upheld the decree of specific performance granted by the trial Court. [Paras 12 and 13] [1177-G; 1178-A, D, H; 1179-A]

1.4 When the third plaintiff deposed before the Court explaining their case with reference to the recitals in the agreement of sale including the reference to the legal notice to the defendant, in the absence of contra evidence on the side of the defendant, the conclusion arrived at by the High Court in non-suiting the plaintiff cannot be agreed. [Para 13] [1179-A & B]

1.5 The claim for refund of earnest money by the plaintiffs is only their alternative claim. It is not in dispute that in all suits for specific performance, the plaintiff is entitled to seek alternative relief in the event the decree for specific performance cannot be granted for any reason, hence there is no infirmity in the alternative plea of refund. [Para 13] [1179-C & D]

1.6 The judgment and decree of the High Court is set aside and the decree granted by the trial Court is upheld. The appellants/plaintiffs are directed to deposit the balance amount of sale consideration whereupon the respondent/defendant would execute the sale deed of the suit lands. In case of failure of the defendant to execute the sale deed, the plaintiffs would be entitled to get the sale deed executed through Court. [Para 14] [1179-E & F]

K.S. Vidyanadam and Others vs. Vairavan 1997 (3) SCC 1 - distinguished.

Chand Rani (Smt.) (dead) by LRs. Vs. Kamal Rani (Smt.) (dead) by LRs, (1993) 1 SCC 519; Swarnam Ramachandran (Smt.) and Another vs. Aravacode Chakungal Jayapalan, 2004 (8) SCC 689 - relied on.

Makarand D. Adkar, Vijay Kumar and Vishwajit Singh for the Appellants.

V.N. Ganpule, S.B. Meitei, Naresh Kumar Gaur and Ashok Kumar Singh for the Respondent.

2008 AIR 1205, 2008(1   )SCR1169, 2008(4   )SCC464 , 2008(1   )SCALE705 , 2008(2   )JT63

CASE NO.:
Appeal (civil)  647 of 2008

PETITIONER:
Balasaheb Dayandeo Naik (Dead)through LRs & Ors

RESPONDENT:
Appasaheb Dattatraya Pawar

DATE OF JUDGMENT: 24/01/2008

BENCH:
Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT:
JUDGMENT
(Arising out of SLP (C) No. 16694 OF 2005)
P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the judgment and order
dated 11.01.2005 passed by the High Court of Judicature at
Bombay in First Appeal No. 743 of 1993 in and by which the
High Court set aside the decree for specific performance
granted by the trial Court and consequently dismissed the suit
of the plaintiffs.
3) Brief facts in a nutshell are:
The appellants/plaintiffs in special civil suit No. 320 of 1988
filed the same for specific performance of agreement dated
31.07.1985.  According to the plaintiffs, the respondent
herein/defendant is the owner of land Block No. 208 and
Block No. 209 respectively admeasuring Area H. 0.60 R and H.
0.40 R of Village Nagaon in Hatkanangale Tahsil.  The
defendant had entered into an agreement for sale of the said
lands to the plaintiffs for a consideration of Rs.85,000/- per
acre.  The agreement was reduced into writing and according
to the terms of the agreement, the sale deed was to be
executed by the defendant within a period of six months.  It
was agreed that possession of the lands was to be delivered at
the time of execution of sale deed.  The defendant has also
undertaken the responsibility of obtaining necessary
permission for sale of the lands, if required.  On the date of
execution of the agreement, an amount of Rs.20,000/- was
paid by the plaintiffs to the defendant as earnest money and
balance amount of the consideration was to be paid at the
time of execution of the sale deed.  The plaintiffs were always
ready and willing to perform their part of the contract but the
defendant avoided to receive the balance amount of
consideration and neglected to execute the sale deed.  The
plaintiffs sent a legal notice on 16.07.1988 to the defendant
through their advocate calling upon him to perform his part of
the obligation under the contract.  In spite of the notice, the
defendant did not comply with the requirements which
necessitated the plaintiffs to file the suit for specific
performance or in the alternative refund of earnest money with
interest thereon @ 15% per annum.

4) The defendant filed a written statement wherein he
denied the plaintiffs claim.  It was further stated that though
agreement for sale of the suit lands was entered into between
him and the plaintiffs on 31.07.1985, the sale deed was to be
executed within a period of six months from the date of
contract as he was in dire need of money for construction of
his house and, therefore, the time was the essence of the
contract.  He had called upon the plaintiffs to pay the balance
amount of consideration and get the sale deed executed.  But
the plaintiffs were not in a position to arrange the balance
amount of consideration and complete the contract.  As the
market price of the agricultural lands have now gone up, the
plaintiffs by purchasing the suit lands are intending to dispose
of the same to others at a higher price.  In view of the same,
the plaintiffs are not entitled to discretionary relief of specific
performance of contract.

5) The learned Civil Judge (Senior Division), on 23.02.1993,
after finding that the defendant has failed to prove that time  
was the essence of contract and the plaintiffs were and are
ready and willing to perform their part of contract decreed the
suit as prayed for.  Aggrieved by the aforesaid judgment of the
trial Court, the defendant filed First Appeal No. 743 of 1993
before the High Court of Judicature at Bombay.  The learned
Single Judge of the High Court not in agreement with the
conclusion of the trial Court and finding that plaintiffs failed to
substantiate their plea allowed the appeal of the defendant
and dismissed the suit. Questioning the judgment and order of
the High Court, the plaintiffs have filed the present appeal by
way of special leave.  During the pendency of the appeal before
this Court, Balasaheb Dayandeo Naik/first plaintiff died and
his legal representatives were brought on record as per order
dated 19.09.2006 in I.A. No. 3 of 2005.

6) We heard Mr. Makarand D. Adkar, learned counsel
appearing for the appellants and Mr. V.N. Ganpule, learned
senior counsel appearing for the respondent, perused the
entire annexures and other relevant materials filed before this
Court.

7) Having regard to the terms of agreement of sale dated
31.07.1985, reasonings of the trial Court as well as the High
Court and submissions before this Court, only two points arise
for consideration of this Court, namely, (a) whether time is the
essence of the contract? and (b) whether the plaintiffs were
ready and willing to perform the contract?

8) In order to find an answer to the above questions, it
would be useful to refer the relevant recitals from the
agreement of sale.  Para 3 of the agreement specifically
mentions the details of the land sought to be sold such as
extent and boundaries.  It also refers the easement rights and
the period in which the sale has to be completed.  The recital
reads as under:-
From the total consideration I have received Rs.20,000/- as
an earnest money of which no independent receipt is
necessary.  Rest of the amount is to be paid by you at the
time of sale deed of the said lands.  It is agreed between the
parties that the sale deed is to be executed within 6 months
from today.  Possession of the land is to be handed over at
the time of sale deed.
   
     It is also relevant to mention the default clause which
reads as under:-
For completion of the sale deed the permission is required
to be obtained by me.  If I fail to execute the said deed within
stipulated period then you have to get it executed on the
basis of this agreement.  On the contrary if you fail to get
execute the sale deed then this agreement is supposed to be
cancelled and the earnest amount will be forfeited.  The land
is free from all sorts of encumbrances.  This agreement is
binding on myself and my legal heirs etc. dated 31/7/1985.

The above-mentioned details in the agreement of sale
clearly show a) that the subject-matter of the property is an
agricultural land/immoveable properties b) the sale deed is to
be executed within six months from the date of sale agreement
i.e. 31.07.1985. c) possession of the land to be handed over at
the time of execution of sale deed d) failure to get execute the
sale deed, the earnest money will be forfeited.  With these
factual details, let us consider the legal principles enunciated
by this Court.

9) In Chand Rani (Smt.) (dead) by LRs. Vs. Kamal Rani
(Smt.) (dead) by LRs, (1993) 1 SCC 519, a Constitution Bench
of this Court has held that in the sale of immoveable property,
time is not the essence of the contract.  It is worthwhile to
refer the following conclusion:
19. It is a well-accepted principle that in the case of sale of
immovable property, time is never regarded as the essence of
the contract. In fact, there is a presumption against time
being the essence of the contract. This principle is not in any
way different from that obtainable in England. Under the law
of equity which governs the rights of the parties in the case
of specific performance of contract to sell real estate, law
looks not at the letter but at the substance of the agreement.
It has to be ascertained whether under the terms of the
contract the parties named a specific time within which
completion was to take place, really and in substance it was
intended that it should be completed within a reasonable
time. An intention to make time the essence of the contract
must be expressed in unequivocal language.

21. In Govind Prasad Chaturvedi v. Hari Dutt Shastri (1977)
2 SCC 539 following the above ruling it was held at pages
543-544: (SCC para 5)
... It is settled law that the fixation of the period within which
the contract has to be performed does not make the stipulation
as to time the essence of the contract. When a contract relates
to sale of immovable property it will normally be presumed
that the time is not the essence of the contract. [Vide
Gomathinayagam Pillai v. Pallaniswami Nadar 1 (at p. 233).]
It may also be mentioned that the language used in the
agreement is not such as to indicate in unmistakable terms
that the time is of the essence of the contract. The intention
to treat time as the essence of the contract may be evidenced
by circumstances which are sufficiently strong to displace
the normal presumption that in a contract of sale of land
stipulation as to time is not the essence of the contract.
 
23. In Indira Kaur (Smt) v. Sheo Lal Kapoor (1988) 2 SCC
488 in paragraph 6 it was held as under:
... The law is well-settled that in transactions of sale of
immovable properties, time is not the essence of the
contract.
10) It is clear that in the case of sale of immoveable property,
there is no presumption as to time being the essence of the
contract.  Even where the parties have expressly provided that
time is the essence of the contract, such a stipulation will have
to be read along with other provisions of the contract.  For
instance, if the contract was to include clauses providing for
extension of time in certain contingencies or for payment of
fine or penalty for every day or week, the work undertaken
remains unfinished on the expiry of the time provided in the
contract, such clauses would be construed as rendering
ineffective the express provision relating to the time being of
the essence of contract.  In the case on hand, though the
parties agreed that the sale deed is to be executed within six
months, in the last paragraph they made it clear that in the
event of failure to execute the sale deed, the earnest money
will be forfeited.  In such circumstances, the above-mentioned
clauses in the last three paragraphs of the agreement of sale
would render ineffective the specific provision relating to the
time being the essence of contract.

11) This Court in Swarnam Ramachandran (Smt.) and
Another vs. Aravacode Chakungal Jayapalan, (2004) 8
SCC 689 has once again reiterated that time is not the essence
of contract relating to immoveable property.  The following
statement of law in para 12 are rightly applicable to the case
on hand:
12. That time is presumed not to be of essence of the
contract relating to immovable property, but it is of essence
in contracts of reconveyance or renewal of lease. The onus to
plead and prove that time was the essence of the contract is
on the person alleging it, thus giving an opportunity to the
other side to adduce rebuttal evidence that time was not of
essence. That when the plaintiff pleads that time was not of
essence and the defendant does not deny it by evidence, the
court is bound to accept the plea of the plaintiff. In cases
where notice is given making time of the essence, it is duty of
the court to examine the real intention of the party giving
such notice by looking at the facts and circumstances of
each case. That a vendor has no right to make time of the
essence, unless he is ready and willing to proceed to
completion and secondly, when the vendor purports to make
time of the essence, the purchaser must be guilty of such
gross default as to entitle the vendor to rescind the contract.

12) As observed in the said decision, in the case on hand the
appellants/plaintiffs clearly established their claim to secure
specific performance of the agreement by leading cogent
evidence whereas the respondent/defendant having pleaded
that time was the essence of the contract neither entered the
witness box nor led any evidence whatsoever.  The High Court
lost sight of the above material aspect and the conduct of the
defendant in not strengthening his plea by placing acceptable
evidence. In such circumstances, as rightly argued by learned
counsel for the appellants, the High Court should have
confirmed the decree of specific performance granted by the
trial Court.  On the other hand, the High Court wrongly placed
reliance on the decision of this Court in K.S. Vidyanadam
and Others vs. Vairavan, (1997) 3 SCC 1 as in the facts of
that case, this Court found that granting for specific
performance was inequitable, however such aspect of the
matter was totally absent in the case on hand.  Even
otherwise, para 11 of the judgment shows that the subject
matter of the property was an urban immoveable property and
in such special circumstance relaxed the general rule that
time is not the essence of the contract in the case of
immoveable properties.  In the case on hand, the details
furnished in the agreement clearly show that the subject-
matter of the property is an agricultural land situated in
Kolhapur Dist., Maharastra.  In such circumstances, the
decision in K.S. Vidyanadam and Ors. (supra) is not applicable
to the facts on hand.  In the facts of the present case, which
we have already adverted to, neither the terms of agreement
nor the intention of the parties indicate that the time is an
essence of the agreement.  We have already pointed that
having raised such a plea the respondent even did not bother
to lead any evidence.

13) It is true that the defendant in his written statement has
made a bald claim that the time was the essence of contract.
Even if we accept the recital in the agreement of sale (Exh. 18)
that the sale deed has to be executed within a period of six
months, there is an express provision in the agreement itself
that failure to adhere the time, the earnest money will be
forfeited.  In such circumstances and in view of recital
pertaining to forfeiture of the earnest money makes it clear
that time was never intended by the parties to be of essence.
The Constitution Bench decision in Chand Rani vs. Kamal
Rani (supra) also makes it clear that mere fixation of time
within which contract is to be performed does not make the
stipulation as to the time as the essence of contract.  Further,
we have already pointed out that the defendant has not
bothered to prove his claim on oath before the Court to the
effect that it was the plaintiffs who avoided performing their
part of contract.  All the above-mentioned material aspects
were correctly appreciated by the trial Court and unfortunately
the High Court failed to adhere to the well known principles
and the conduct of the defendant.  When the third plaintiff
deposed before the Court explaining their case with reference
to the recitals in the agreement of sale including the reference
to the legal notice to the defendant, in the absence of contra
evidence on the side of the defendant, we are unable to agree
with the conclusion arrived at by the High Court in non-
suiting the plaintiff.  The High Court commented the conduct
of the plaintiffs in praying for refund of the earnest money,
namely, Rs.20,000/- paid as advance.  As rightly pointed out,
the claim for refund of earnest money is only their alternative
claim.  It is not in dispute that in all suits for specific
performance, the plaintiff is entitled to seek alternative relief in
the event the decree for specific performance cannot be
granted for any reason, hence there is no infirmity in the
alternative plea of refund.

14) In the light of what has been stated above, we set aside
the judgment and decree of the High Court and confirm the
decree granted by the trial Court.  In view of the said
conclusion, the appellants/plaintiffs are directed to deposit
the balance amount of sale consideration i.e., Rs.1,92,500/- in
the trial Court within a period of eight weeks whereupon the
respondent/defendant shall execute the sale deed of the suit
lands Block No. 208 admeasuring 0.60 R and Block No. 209
admeasuring 0.40 R of Village Nagaon, Tahsil Hatkanangale as
per the agreement dated 31.07.1985.  In case of failure of the
defendant to execute the sale deed, the plaintiffs shall be
entitled to get the sale deed executed through Court.

15) The civil appeal is allowed on the above terms.  However,
in the facts and circumstances of the case, there shall be no
order as to costs.  

Indian Easements Act, 1882 - s.13(b) - Easement rights - Easement by grant - Suit for declaration of easement rights over `B' schedule property of the plaint as a pathway to `A' schedule property of the plaint - `A' Schedule property had been allotted to plaintiff in terms of a settlement deed - `B' Schedule pathway was situated within property under control and use of defendants - Held: Grant can be by implication as well - There was implied grant of `B' schedule property as pathway, which can be inferred for the reason that no other pathway was provided to plaintiff for access to `A' schedule property and there was also no objection from defendants to use of `B' schedule property by plaintiff as pathway for number of years, at least up to the time, when alone cause of action for the suit arose - Plaintiff acquired right of easement in respect of `B' schedule pathway by way of implied grant. = Sree Swayam Prakash Ashramam & Anr. ...Appellants VERSUS G. Anandavally Amma & Ors. ...Respondents = published in http://judis.nic.in/supremecourt/helddis.aspx

              Indian Easements Act, 1882 - s.13(b) - Easement rights - Easement by grant
- Suit for declaration of easement rights over `B' schedule property of the
plaint as a pathway to `A' schedule property of the plaint - `A' Schedule
property had been allotted to plaintiff in terms of a settlement deed - `B'
Schedule pathway was situated within property under control and use of
defendants - Held: Grant can be by implication as well - There was implied
grant of `B' schedule property as pathway, which can be inferred for the
reason that no other pathway was provided to plaintiff for access to `A'
schedule property and there was also no objection from defendants to use of
`B' schedule property by plaintiff as pathway for number of years, at least
up to the time, when alone cause of action for the suit arose - Plaintiff
acquired right of easement in respect of `B' schedule pathway by way of
implied grant.

Constitution of India, 1950 - Art. 136 - Interference with findings of
facts arrived at by Courts below - Scope - Suit for grant of easement
rights - No specific issue on question of implied grant - But parties
adduced evidence for purpose of proving and contesting implied grant -
Courts below found that plaintiff had acquired right of easement by way of
implied grant - Held: In such circumstances, Supreme Court cannot upset the
findings of fact arrived at by Courts below in exercise of its powers under
Art.136.

Respondent-plaintiff filed suit for declaration of easement rights by way
of necessity or of grant over `B' schedule property of the plaint as a
pathway to `A' schedule property of the plaint.

Both `A' schedule and `B' schedule properties of the plaint originally
belonged to one `Y', who was in enjoyment and management of a vast extent
of properties including plaint `A' and `B' schedule properties for benefit
of the first defendant-Ashramam. After the death of `Y', her disciples
executed a settlement deed as per her directions whereby `A' Schedule
property of the plaint was allotted to the plaintiff. The `B' Schedule
pathway of the plaint was situated within the property under the control
and the use of defendants.

The trial court accepted the version of the plaintiff that apart from `B'
Schedule pathway, there was no alternate pathway leading to the `A'
schedule property and, that the plaintiff was entitled to easement right in
respect of the `B' schedule pathway by implied grant as also by necessity,
and decreed the suit. The First Appellate Court held that even assuming
that the plaintiff had an alternative pathway as contended by the
defendants, it did not extinguish the right of easement of grant in favour
of the plaintiff, though the declaration granted on the ground of easement
of necessity was not justified. Both courts concurrently found on
appreciation of evidence that `B' Schedule property was being used by the
plaintiff-respondents for access to `A' Schedule property even after
construction of a building on `A' Schedule property. Second appeal filed by
defendants was dismissed by the High Court. Hence the present appeal.

     Dismissing the appeal, the Court

HELD: 1. The case of the defendants-appellants that since there was no
mention in the deed of settlement enabling the use of `B' schedule pathway
for access to `A' schedule property and the building therein, cannot be the
reason to hold that there was no grant as the grant could be by implication
as well. The facts and circumstances of the case amply show that there was
an implied grant in favour of the original plaintiff (since deceased)
relating to `B' schedule property of the plaint for its use as pathway to
`A' schedule property of the plaint in residential occupation of the
original plaintiff (since deceased). In absence of any evidence being
adduced by the appellants to substantiate their contention that the
original plaintiff (since deceased) had an alternative pathway for access
to the `A' schedule property, it is difficult to negative the contention of
the respondent that since the original plaintiff (since deceased) has been
continuously using the said pathway at least from the year 1940 the
original plaintiff (since deceased) had acquired an easement right by way
of an implied grant in respect of the `B' Schedule property of the plaint.
The High Court was perfectly justified in holding that when it was the
desire of `Y' to grant easement right to the original plaintiff (since
deceased) by way of an implied grant, the right of the original plaintiff
(since deceased) to have `B' schedule property of the plaint as a pathway
could not have been taken away. The High Court was fully justified in
holding that there was implied grant of `B' schedule property as pathway,
which can be inferred from the circumstances for the reason that no other
pathway was provided for access to `A' schedule property of the plaint and
there was no objection also to the use of `B' schedule property of the
plaint as pathway by the original plaintiff (since deceased) at least up to
1982, when alone the cause of action for the suit arose. [Paras 25 and 26]
[285-G-H; 286-A-E; 287-B-C]

Annapurna Dutta v. Santosh Kumar Sett & Ors. AIR 1937 Cal.661, referred to.

Katiyar's Law of Easement and Licences (12th edition), referred to.

2. The Trial Court on consideration of the plaintiff's evidence and when
the defendant had failed to produce any evidence, had come to the
conclusion that the plaintiff was given right of easement by `Y' as an
easement of grant. Considering this aspect of the matter, although there is
no specific issue on the question of implied grant, but as the parties have
understood their case and for the purpose of proving and contesting implied
grant had adduced evidence, the Trial Court and the High Court had come to
the conclusion that the plaintiff had acquired a right of easement in
respect of `B' schedule pathway by way of implied grant. Such being the
position, this Court cannot upset the findings of fact arrived at by the
Courts below, in exercise of its powers under Article 136 of the
Constitution. It is true that the defendant-appellants alleged that no
implied grant was pleaded in the plaint. However, the Trial Court was
justified in holding that such pleadings were not necessary when it did not
make a difference to the finding arrived at with respect to the easement by
way of grant. Accordingly, there is no substance in the argument raised by
the appellants. Since the findings of the High Court as well as of the
trial court on the question of implied grant have been accepted, it would
not be necessary to deal with the decisions on the easement of necessity
which necessarily involves an absolute necessity. Such being the state of
affairs and such being the findings accepted by the High Court in second
appeal, it is not possible for this Court to interfere with such findings
of fact arrived at by the High Court which affirmed the findings of the
Courts below. [Paras 27, 28 and 29] [287-F-H; 288-A; 288-B-D; 288-F-G]

Justiniano Antao & Ors. vs. Smt. Bernadette B.Pereira 2005 (1) SCC 471,
held inapplicable.

Case Law Reference:

AIR 1937 Cal. 661 referred to Para 25
2005 (1) SCC 471 held inapplicable Para 28

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7 of 2010.

From the Judgment & Order dated 9.5.2006 of the High Court of Kerala at
Ernakulam in S.A. No. 198 of 2000 (F).

T.L. Viswanatha Iyer, Subramonium Prasad for the Appellants.

P. Krishnamoorthy, M.T. George for the Respondents.

                                          1


                                             REPORTABLE

               IN THE SUPREME COURT OF INDIA
                CIVIL APPELLATE JURISDICTION


                   CIVIL APPEAL NO.7 OF 2010
            (Arising out of SLP (C) No. 17235 of 2006)

Sree Swayam Prakash Ashramam & Anr.              ...Appellants

                            VERSUS

G. Anandavally Amma & Ors.                      ...Respondents

                        JUDGMENT

TARUN CHATTERJEE, J.

1. Delay condoned.

2. Leave granted.

3. This appeal is directed against the judgment and order

  dated 9th of May, 2006, passed in Second Appeal No.198 of

  2000 of the High Court of Kerala at Ernakulam, by which

  the High Court had affirmed the concurrent findings of fact

  arrived at by the courts below in a suit for declaration of

  easement rights in respect of `B' Schedule property of the

  plaint as a pathway to the `A' Schedule property of the

  plaint.
                                                              2




4. It may be mentioned that during the pendency of the

  second appeal before the High Court of Kerala, the original

  plaintiff expired and his legal representatives were brought

  on record as substituted respondents before the High Court,

  who are respondents in this appeal. For the sake of

  convenience, the appellants herein would be referred to as

  `the defendants' as they were in the original suit for

  declaration of easement and permanent injunction filed by

  the original plaintiff, who is now represented by the

  respondents herein.

5. The   case that was made out by the plaintiff (since

  deceased), in his plaint was as follows: Plaint A and B

  schedule properties originally formed part of a vast extent of

  properties which belonged to one Yogini Amma. During the

  life time of Yogini Amma, she was in enjoyment and

  management of the entire property for the benefit of the first

  defendant Ashramam. On her death, her brother and sole

  legal heir Krishna Pillai and other disciples executed a

  settlement deed dated 20th of June, 1948 as          per the
                                                           3


directions of the deceased Yogini       Amma. As per the

settlement, the Schedule `A' property of the plaint was

allotted to the original plaintiff (since deceased). Even

thereafter, the original plaintiff (since deceased) continued

to be in possession and enjoyment of the said properties

effecting mutation and     paying taxes. Even before the

settlement deed was executed, during the life time of the

said Yogini Amma, there is a building being `A' schedule

property of the plaint that was in occupation of the original

plaintiff (since deceased). There is a gate provided on the

South Western portion of the      `A' schedule property for

ingress and egress to the same and `B' schedule property of

the plaint which is a pathway extends up to the road on the

West from the said gate. The said gate and `B' schedule

pathway are as old as the building in `A' schedule property

of the plaint. Other than `B' schedule pathway, there is no

other means of direct or indirect access to `A' schedule

property of the plaint from any road or pathway. The `B'

schedule pathway of the plaint was granted to the original

plaintiff (since deceased) as easement right by the said
                                                                    4


  Yogini Amma and the original plaintiff (since deceased)

  continued to use it as such from time          immemorial. This

  pathway is situated within the property which is now under

  the control and use of the defendants. Defendant Nos. 2 to

  4 tried to close down the gate on the South Western

  extremity of the B schedule pathway and were also

  attempting to change the nature and existence of the `B'

  schedule property of the plaint. An attempt in that direction

  was made on 21st of July, 1982. Original plaintiff (since

  deceased) apprehended that defendant nos. 2 to 4 might

  forcibly close down the pathway. Hence, he filed a suit for

  declaration of easement of necessity or of grant and

  permanent injunction restraining the defendants from

  obstructing   the     `B'    schedule   pathway   and   for    other

  incidental reliefs.

6. The   defendant      No.1     was   the   Matathipadhi   of    the

  Ashramam; defendant Nos. 2 and 3 were its office bearers

  and defendant No.4 was only an inmate of the Ashramam.

  Defendant Nos. 1 to 4 entered appearance and filed a joint
                                                                    5


  written statement praying for dismissal of the suit by

  making the following defence:

     The suit was not maintainable. The description of `A'

schedule and `B' schedule properties was incorrect. The

original   plaintiff   (since   deceased)   was   attached   to   the

institution from his childhood. In consideration of the           love

and affection Yogini Amma had towards the original plaintiff

(since deceased), she wished to gift some            portion of the

property to him and in pursuance thereof, Ashramam

represented by the then office bearers executed a settlement

deed in respect of the          properties. Original plaintiff (since

deceased) was the 13th signatory in the said settlement deed.

There is a pathway provided in the settlement deed on the

Eastern extremity of the Ashramam properties. There is yet

another lane which comes along the Western               side of the

Ashramam property through which              also the plaintiff has

access to his property. It is incorrect to say that Plaint `B'

schedule is meant as a pathway for ingress and egress to `A'

schedule property and that other than `B' schedule property

there is no other      means of direct or indirect access to `A'
                                                                  6


schedule property of the plaint. The further allegation that the

pathway was granted by the said Yogini Amma to the original

plaintiff (since deceased) and that he was using it from time

immemorial was also not correct. Originally, there was a

narrow pathway which was widened to accommodate traffic to

the   Ashramam. The present pathway came into           existence

only within the last 10 years. It can never be considered as an

easement of necessity. Original plaintiff (since deceased) has

no easmentary right to use the gate and the pathway and he

was not entitled to the declaration or injunction prayed for.

Therefore, the suit in the circumstances must be dismissed

with costs to the defendants.

7. The   IInd   Additional   Munsif,   Trivandrum,   accordingly,

  framed the following issues which are as follows :

" 1) Is not the suit maintainable?

 2) Whether the plaint schedule description is correct?

 3) Is there any pathway as Plaint B schedule?

 4) Is the plaintiff entitled to easement right over plaint B

schedule as pathway to Plaint A schedule?

 5) Is the plaintiff entitled to the declaration as prayed for?
                                                                     7


  6) Whether the injunction prayed for is allowed?

  7) Relief and costs."



8. After the parties adduced evidence in support of their

  respective cases and after hearing the parties, the IInd

  Additional   Munsif,    Trivandrum     decreed    the   suit      for

  declaration of easement right and for injunction filed by the

  original plaintiff (since deceased), holding inter alia that :-



     The court noted that the plaintiff had claimed easement

of necessity as well as easement of grant. According to the

plaintiff, during the lifetime of Yogini Amma itself, `B' schedule

pathway had been given to him as an easement of grant,

which had been in use from those days and even prior to the

execution of the settlement deed. The deed does not refer to

the existence of `B' schedule pathway for the plaintiff to access

`A' schedule   property. The      defendants had alleged the

existence of two alternative pathways leading to the `A'

schedule property. However, the same was denied by the sole

witness produced by the original plaintiff (since deceased). The
                                                               8


defendants could not lead any evidence to substantiate their

claim that these pathways provide access to `A' schedule

property. In a case where the original plaintiff was claiming

easement right either as grant or as of necessity the plaintiff

has only a primary burden to prove the absence of any

alternate pathway. As the defendants have not proved the

existence of any pathway for access to Plaint `A' schedule

property the version of the plaintiff that there is no alternate

pathway shall be accepted. According to the plaintiff, he had

been residing in the building on `A' schedule property and had

been using `B' schedule pathway from the year 1940. A trace

of this pathway could be presumed to be in existence from the

time when the Ashramam acquired the properties. As per the

deed of settlement, there is a separation of tenements. At the

time of its execution itself, the plaintiff could have had access

to `A' schedule property only through `B' schedule pathway. As

`B' schedule pathway was required for the reasonable and

convenient use of the plaintiff's property and that on

severance of the tenements, plaintiff can be presumed to have

got a right over `B' schedule pathway by an implied grant and
                                                               9


also an easement of necessity. It is not on record that either

Yogini Amma, or the defendants themselves until 1982 had

obstructed this use of pathway. There is no reason to

disbelieve the plaintiff's version that Yogini Amma had given

`B' schedule pathway as grant for his use as he was a close

relative of the former. There is an apparent and continuous

use which is necessary for the enjoyment of the `A' schedule

property within the meaning of Section 13(b) of the Indian

Easements Act, 1882, and, therefore, the plaintiff is entitled to

easement right in respect of the pathway. The defendants have

not entered the witness box to disprove the evidence led by the

plaintiff.



10.   In these circumstances, it was clear that `B' schedule

pathway was given to plaintiff as an easement of grant.

Defendants argued that no implied grant was pleaded in

the plaint. However, it does not make a difference to the

findings arrived at, as the plaintiff had pleaded easement

of grant. The plaintiff's right to `B' schedule pathway does not

affect the interest in the Ashramam property in any manner.
                                                               1


Since this issue was found in favour of the plaintiff, the relief

of declaration and injunction was granted as prayed for.



11. Feeling aggrieved by the order of the IInd Additional

   Munsif, the defendants preferred an appeal before the IIIrd

   Additional    District   Judge,   Thiruvananthapuram.     The

   Appellate Court, by an order dated 6th of April, 1999,

   allowed the appeal partly. The issues framed by the

   Appellate Court were as follows:



1) Whether the Trial Court was justified in granting a decree

for declaration in favour of the plaintiff?



2) Whether the finding of the Trial Court that plaintiff is

entitled to the decree of permanent injunction is correct?



12.The Appellate Court found that on evidence, it was proved

   that there is an alternate way on the western side of the `A'

   schedule property. The plaintiff, however, asserted that

   there is a difference in level of 14 feet between the `A'
                                                               1


   schedule property of the plaint and the property adjacent to

   it which is situated on the western side. However, the

   existence of an alternate pathway, howsoever inconvenient,

   will defeat the claim of easement of necessity. The necessity

   must be absolute and must be subsisting at the time when

   the plaintiff claims right of way by easement. In the light of

   these findings, the Appellate Court held that the claim of

   the plaintiff regarding the right of easement of necessity

   over the plaint `B' schedule pathway was not sustainable.

13.On the question of easement by grant, the Appellate Court

   was of the opinion that the plaintiff's claim in that respect

   stood   proved.   The   plaintiff   had   acquaintance    and

   association with the Ashramam and Yogini Amma from his

   childhood days as revealed from the oral and documentary

   evidence. Considering the location and nature of `B'

   schedule pathway, the location of two pillars at its

   inception and the gate from which it started, it could be

   seen that it had been in use by the plaintiff as a pathway.

   The plaintiff had been residing in the house on `A' schedule

   property even prior to the deed of settlement. Therefore, the
                                                               1


   Appellate Authority arrived at the conclusion that the

   plaintiff had obtained right of easement of grant from

   Yogini Amma over the `B' schedule pathway. An easement

   of grant is a matter of contract between the parties and it

   may    have   its   own    consideration.   (B.B.    Katiyar's

   Commentaries on Easements and Licenses, p. 762). It may

   be either express or even by necessary implication. Though

   easement of necessity will come to an end with the

   termination of necessity, easement acquired by grant

   cannot be extinguished on that ground as per section 13(b)

   of the Indian Easements Act, 1882. Therefore, even

   assuming that the plaintiff had an alternative pathway as

   contended by the defendants, it does not extinguish the

   right of easement of grant in favour of the plaintiff.

   Therefore, the Trial Court was justified in granting a relief

   of declaration of right of easement of grant over the `B'

   schedule pathway. However, the declaration granted on the

   ground of easement of necessity was not justified.

14.It was further held that the apprehension of the plaintiff on

   attempted obstruction of the `B' schedule pathway was
                                                              1


   well-founded and, therefore, the Trial Court was justified in

   granting the relief of permanent injunction against the

   defendants.

15. Aggrieved by the order of the first Appellate Court, the

   defendants took a second appeal before the High Court of

   Kerala. The High Court, by its impugned judgment and

   order dated 9th of May, 2006, dismissed the appeal and

   affirmed the orders of the Trial Court and of the Appellate

   Court.

16.The issues that were raised for consideration of the High

   Court were as follows:

1. While Yogini Amma owned and held the entire land in both

  the schedules at that time of alleged grant, whether the

  finding of easement of grant is contrary to law of easement

  which enjoins the existence of two tenements?

2. Whether the appellate court was right in granting an

  easement of grant without specifying the nature and extent

  of easementary right and without restricting it to the right

  of footway, when the terms of the grant are not known?
                                                              1


3. Whether the appellate court was justified in granting a

  decree for declaration in favour of the plaintiff as regards

  the easementary right by way of grant?



17.The High Court limited itself to the issue whether the

  decree of the first appellate court granting the original

  plaintiff (since deceased) right of easement over `B' schedule

  property by way of grant concurring with the findings of

  the trial court was sustainable.

18.Before the High Court, the defendants pleaded that there

  had been no appeal or cross objection filed by the original

  plaintiff (since deceased) against the order of the Appellate

  Court which disallowed the claim of easement of necessity

  and, therefore, the finding that there existed no easement

  of necessity in favour of the original plaintiff (since

  deceased) over the `B' schedule property stood confirmed.

  Further they contended that the alternative pathway on the

  western side of the `A' schedule property was rendered

  inconvenient by the very act of the original plaintiff (since

  deceased) who sold that portion of the property to a third
                                                              1


   party who began digging that pathway resulting in the

   difference in level. The High Court, on consideration of

   these contentions, held that though the claim of right of

   easement by way of necessity over `B' Schedule property

   may be affected by the subsequent sale of the said plot by

   the plaintiff in 1983, the claim of right of easement by way

   of grant over `B' schedule property stood unaffected by the

   said conduct.

19. The very fact that the plaintiff was continuing to use the

   said pathway for access to `A' schedule property was an

   indication that   there was implied grant of `B'   schedule

   pathway of the plaint for access to the `A' schedule property

   even while `A' schedule property was separately allotted to

   him under settlement deed. Such implied grant is inferable

   also on account of the acquiescence of the defendants in

   the original plaintiff (since deceased) using `B' schedule as

   pathway till it was for the first time objected on 21st of

   July, 1982 as alleged by the original plaintiff (since

   deceased).
                                                                 1


20.The High Court observed that the Courts below had

  concurrently found on a proper           appreciation of the

  evidence adduced in the case that `B' schedule property of

  the plaint was     being used as a pathway by the plaintiff

  ever after construction of the building in           1940 in `A'

  schedule property. The defendants did not dispute the case

  of the plaintiff that the plaintiff was in occupation of the

  building   ever    after   its   construction   in   1940.   The

  defendants were also not able to establish that the

  plaintiff was using any other pathway for access to `A'

  schedule property and the building therein which was in

  his occupation. The mere fact that there is no mention in

  settlement deed enabling the use of the `B' schedule

  pathway for access to `A' Schedule property and the

  building therein is no reason to hold that there is no grant

  as the grant could be by implication as well. The fact of the

  use of `B' schedule          property as pathway ever after

  execution of      settlement deed till 1982 by the       plaintiff

  shows that there was an implied grant in favour of the

  plaintiff in relation to `B' schedule property for its use as
                                                                1


  pathway to `A' schedule property of the plaint in residential

  occupation of the plaintiff.

21.The High Court relied on a number of observations in

  Katiyars Law of Easement and Licences (12th Edition) on

  law with respect to "implication of grant of an easement." It

  may arise upon severance of a tenement by its owner into

  parts. The acquisition of easement by prescription may be

  classified under the head of implied            grant for all

  prescription presupposes a grant. All that is necessary to

  create the easement is a manifestation or an unequivocal

  intention on the part of the servient owner to that effect.

22.The High Court quoted with approval Katiyar's note to

  Section 8 of the Easement Act, which reads as follows:

       "There are numerous cases in which an
       agreement to grant easement or some other rights
       has been inferred or more correctly has been
       imputed to the person who is in a position to
       make the grant, on account of some action or
       inaction on his part. These cases rest on the
       equitable doctrine of acquiescence, but they may
       be referred to, for the purpose of classification, as
       imputed or constructive grants. The party
       acquiescing is subsequently estopped from
       denying the existence of easement. It is as if such
       person had made an actual grant of the
       easement...
                                                              1



       ...It is the intention of the grantor whether he can
       be presumed to have been intended to convey to
       the grantee a right of easement for the reasonable
       and       convenient enjoyment of the property which
       has to be ascertained in all the circumstances of
       the case to find out whether a grant can be
       implied. A description in a conveyance may
       connote an intention to create a right of easement.
       An easement may arise by implication, if the
       intention to grant can properly be inferred either
       from the terms of the grant or the circumstances".


23.Applying these observations to the facts of the case, the

   High Court held that though the original grant was by

   Yogini Amma that grant could not perfect as an easement

   for the reason that Yogini Amma herself was the owner of

   both `A' schedule and `B' schedule           properties and

   consequently there was no        question of `B' schedule

   property becoming the servient tenement and `A' schedule

   property becoming     the dominant tenement. However, it

   was the desire of Yogini Amma that was implemented by

   her disciples by virtue of the settlement deed. Therefore,

   the right of the plaintiff to have `B' schedule property as a

   pathway could not have been taken away by the very same

   deed. In fact, there was implied grant of `B' schedule
                                                               1


  property   as   pathway   as   can   be   inferred   from   the

  circumstances, namely, i) no other pathway was provided

  for access to `A' schedule property in the settlement deed

  and ii) there was no objection to the use of `B' schedule as

  pathway.

24.Feeling aggrieved by the concurrent orders of the Courts

  below, the defendants/Appellants have filed the present

  special leave petition, which, on grant of leave, was heard

  in the presence of the learned counsel of the parties.

25.We have heard Mr. T.L. Viswanatha Iyer, learned senior

  counsel for the appellants and Mr. Subramanium Prasad,

  learned senior counsel for the respondents.          We have

  carefully examined the impugned judgment of the courts

  below and also the pleadings, evidence and the materials

  already on record. It is not in dispute that the trial court

  as well as the First Appellate Court concurrently found on

  a proper appreciation of the evidence adduced in the case

  that the `B' Schedule Property of the plaint was being used

  by the original plaintiff (since deceased) and thereafter, by

  the respondents even after construction of the building in
                                                            2


1940 in `A' Schedule property of the plaint. The appellants

also did not dispute the case of the original plaintiff (since

deceased) that he was in continuous occupation of the

building even after its construction in the year 1940. It is

also not in dispute that the appellants were not able to

establish that the original plaintiff (since deceased) was

using any other pathway for access to `A' Schedule Property

of the plaint and the building therein, which was in the

occupation of the original plaintiff (since deceased).    The

case of the appellants that since there was no mention in

the deed of settlement enabling the use of `B' schedule

pathway for access to `A' schedule property and the

building therein, cannot be the reason to hold that there

was no grant as the grant could be by implication as well.

It is not in dispute that the fact of the use of the `B'

schedule property as pathway even after execution of

Exhibit A1, the settlement deed in the year 1982 by the

original plaintiff (since deceased) would amply show that

there was an implied grant in favour of the original plaintiff

(since deceased) relating to `B' schedule property of the
                                                                2


plaint for its use as pathway to `A' schedule property of the

plaint in residential occupation of the original plaintiff

(since deceased).       In the absence of any evidence being

adduced by the appellants to substantiate their contention

that   the   original    plaintiff   (since   deceased)   had   an

alternative pathway for access to the `A' schedule property,

it is difficult to negative the contention of the respondent

that since the original plaintiff (since deceased) has been

continuously using the said pathway at least from the year

1940 the original plaintiff (since deceased) had acquired an

easement right by way of an implied grant in respect of the

`B' Schedule property of the plaint.           It is an admitted

position that both `A' schedule and `B' schedule properties

of the plaint belonged to Yogini Amma and her disciples

and it was the desire of Yogini Amma that was really

implemented by the disciples under the settlement deed

executed in favour of the original plaintiff (since deceased).

Therefore, the High Court was perfectly justified in holding

that when it was the desire of Yogini Amma to grant

easement right to the original plaintiff (since deceased) by
                                                            2


  way of an implied grant, the right of the original plaintiff

  (since deceased) to have `B' schedule property of the plaint

  as a pathway could not have been taken away.              In

  Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR

  1937 Cal.661], B.K.Mukherjee, as His Lordship then was

  observed :

    "There could be no implied grant where the
    easements are not continuous and non-apparent.
    Now a right of way is neither continuous nor always
    an apparent easement, and hence would not
    ordinarily come under the rule. Exception is no doubt
    made in certain cases, where there is a `formed road'
    existing over one part of the tenement for the
    apparent use of another portion or there is `some
    permanence in the adaptation of the tenement' from
    which continuity may be inferred, but barring these
    exceptions, an ordinary right of way would not pass
    on severance unless language is used by the grantor
    to create a fresh easement."

26.In our view, therefore, the High Court was also fully

  justified in holding that there was implied grant of `B'

  schedule property as pathway, which can be inferred from

  the circumstances for the reason that no other pathway

  was provided for access to `A' schedule property of the

  plaint and there was no objection also to the use of `B'

  schedule property of the plaint as pathway by the original
                                                                 2


  plaintiff (since deceased) at least up to 1982, when alone

  the cause of action for the suit arose.

27.The learned counsel for the appellant raised an argument

  that   since    no    case     was      made       out   by   the

  plaintiffs/respondents    in    their     plaint     about    the

  easementary right over the `B' Schedule Pathway by implied

  grant, no decree can be passed by the courts below basing

  their conclusion on implied grant. We have already noted

  the findings arrived at by the Trial Court, on consideration

  of pleadings and evidence on record on the right of

  easement over `B' Schedule pathway by implied grant. The

  Trial Court on consideration of the evidence of both the

  parties recorded the finding that there was no evidence on

  record to show that either Yogini Amma or the defendants

  themselves until 1982 had objected to the plaintiff's use of

  `B' schedule pathway to access `A' schedule property. The

  Trial Court on consideration of the plaintiff's evidence and

  when the defendant had failed to produce any evidence,

  had come to the conclusion that the plaintiff was given

  right of easement by Yogini Amma as an easement of grant.
                                                              2


Considering this aspect of the matter, although there is no

specific issue on the question of implied grant, but as the

parties have understood their case and for the purpose of

proving   and   contesting    implied   grant    had    adduced

evidence, the Trial Court and the High Court had come to

the conclusion that the plaintiff had acquired a right of

easement in respect of `B' schedule pathway by way of

implied grant. Such being the position, we are not in a

position to upset the findings of fact arrived at by the

Courts below, in exercise of our powers under Article 136 of

the Constitution of India. We also agree with the finding of

the Trial Court that from the evidence and pleadings of the

parties   `B'   schedule     pathway    was     given   to   the

plaintiff/respondent as an easement of grant. It is true that

the defendant/appellant alleged that no implied grant was

pleaded in the plaint. The Trial Court, in our view, was

justified in holding that such pleadings were not necessary

when it did not make a difference to the finding arrived at

with respect to the easement by way of grant. Accordingly,

there is no substance in the argument raised by the
                                                                2


   learned senior counsel for the appellants.

28.Since we have accepted the findings of the High Court as

   well as of the trial court on the question of implied grant, it

   would not be necessary for us to deal with the decisions on

   the easement of necessity which necessarily involves an

   absolute necessity. If there exists any other way, there can

   be no easement of necessity. Therefore, the decision of this

   Court in Justiniano Antao & Ors. vs. Smt. Bernadette

   B.Pereira [2005 (1) SCC 471] is clearly not applicable in

   view of our discussions made herein above. Similarly two

   other decisions referred to by the High Court in the

   impugned judgment need not be discussed because these

   decisions were rendered on the question of easement of

   necessity.

29.Such being the state of affairs and such being the findings

   accepted by the High Court in second appeal, it is not

   possible for this Court to interfere with such findings of fact

   arrived at by the High Court which affirmed the findings of

   the Courts below. No other point was raised by the learned

   senior counsel for the appellants.
                                                                     2


30.In view of our discussions made hereinabove, we do not

  find any merit in this appeal.         The appeal is thus

  dismissed. There will be no order as to costs.



                                          ............................J.
                                             [Tarun Chatterjee]


New Delhi;                           .................................J.



January 05, 2010                                 [V.S.Sirpurkar]