Land Acquisition Act, 1894; Ss. 3(a) and (b), 11 and 16: Acquisition of land by State Government-Easementary right on the ground of necessity-Availability of-High Court rightly drew a distinction between an easement of an ordinary nature for which compensation could be claimed and an easement of necessity in respect of which right of passage could not be extinguished by reason of acquisition, hence justified in granting right of passage to the claimant both on principle and precedent-Civil Procedure Code, 1908-Section 100-Constitution of India, 1950-Article 136. espondent Nos. 1 to 3 had purchased certain portion of land belonging to `R'. The sale deed specifically mentioned that respondent-vendees would have access to their land through a passage from the remaining part of the land of the vendor, which was later acquired by the Government of Himachal Pradesh. The State Government blocked off the passage by a barbed wire fencing, thereby preventing respondents' access to their land. Aggrieved, respondents filed a suit for issuing injunction against the appellants. Suit was dismissed by the Trial Court. Appellate Court decreed the suit holding that there existed a passage from the land acquired by the State Government to the land of the respondents and they had no other passage to their land. Appeal against this order was dismissed by the High Court. Hence the present appeal. It was contended by the appellants that once an award has been made under Section 11 of the Land Acquisition Act and possession of the acquired land was taken, the land would vest absolutely in the Government free from all encumbrances.

Dismissing the appeal, the Court HELD: 1.1. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondent Nos. 1 to 3, is through the land of the appellant and as such they had a right to approach their land as claimed by them and the appellant had no right to obstruct the approach by putting up a barbed wire fencing. [212-E] 1.2. The High Court drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity, a right of passage, and held that right of passage by way of necessity, as enjoyed by the respondents over the land of original landlord and presently acquired by the appellant, was not extinguished by reason of acquisition. In the peculiar facts and circumstances of the case, the distinction drawn by the High Court about non-extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. The present case is not a fit case to be interfered with in exercise of the jurisdiction under Article 136 of the Constitution. Hence, the appeal is dismissed. [213-B; 214-A-B-C] Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR (1955) SC 298, relied on. State of Himachal Pradesh v. Tarsem Singh and Ors., [2001] 8 SCC 104, distinguished. Rakesh Dwivedi and Naresh K. Sharma for the Appellants. A.V. Palli and Mrs. Rekha Palli for the Respondent Nos. 1-3. J.S. Attri for the Respondent No. 4. 2005 AIR 954 , 2005(1 )SCR209 , 2005(2 )SCC164 , 2005(1 )SCALE150 , 2005(1 )JT169 CASE NO.: Appeal (civil) 1022 of 2000 PETITIONER: H.P. State Electricity Board & Ors. RESPONDENT: Shiv K. Sharma & Ors. DATE OF JUDGMENT: 10/01/2005 BENCH: Shivaraj V. Patil & B.N. Srikrishna JUDGMENT: J U D G M E N T Srikrishna, J. The Himachal Prades State Electricity Board, Shimla, challenges by this appeal the judgment of the High Court of Himachal Pradesh dismissing its second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as 'the CPC'). The appellant-Board purchased 10.10 bighas out of holding of one Rikhi Ram on 20.4.1978. The sale deed specifically mentioned that the present respondents 1 3 shall have access to their land from the land of the seller, Rikhi Ram. On 29th March, 1981 the State Government acquired an area of 41.06 bighas of land for the public purpose of construction of 60 KW sub-station at Barotiwala. The acquired land included the remaining land of Rikhi Ram from whom respondents 1 to 3 had purchased the land. After the acquisition of the land, the entire property acquired for the benefit of the appellant was fenced off by barbed wire. An electric sub-station and living quarters for the employees of the appellant were also constructed thereupon. It appears that the appellant blocked off the passage being used as access to the land of the respondent which passed through the residential quarters and prevented such access to the said respondents. Respondents 1 to 3 filed a suit before the sub-judge Nalagarh for a mandatory injunction ordering the appellant- Board to remove the barbed wire blocking access to their land and for a permanent injunction to restrain the appellant in any manner to obstruct the access to their land. The trial court dismissed the suit. Respondent 1 to 3 carried an appeal before the Additional District Judge, Solan. The Additional District Judge raised the following points for determination: "1. Whether the suit of the plaintiffs is liable to be dismissed on account of non-proof of the map filed with the plaint, as held by the learned Trial Court? 2. Whether the plaintiffs have the right by way of easement of necessity or as purchasers from Rikhi Ram to pass through the land of the defendants through the passage shown in the site plan ? The learned Additional District Judge decided both the points in favour of the said respondents. He also held that the evidence on record proved the existence of a path from the land purchased by the appellant-Board to the lands of the said respondents and that they had no other approach from Haryana side. In view thereof, the Additional District Judge allowed the appeal and decreed the suit. The appellant carried a regular second appeal under Section 100 of the CPC before the High Court. The High Court considered the following substantial question of law: "Whether the right of respondents-plaintiffs to pass through the acquired land for reaching Nalagarh-Barotiwala-Kalka road by way of necessity was encumbrance which stood extinguished ?" The High Court answered the question of law in favour of respondents 1 to 3 and dismissed the second appeal. Hence, this appeal by special leave. Both the Additional District Judge and the High Court have concurrently held that the land of respondents 1 to 3 (original plaintiffs) could be approached only through the land of the appellant as the other three sides of the land of the said respondents were surrounded by the territory of Haryana State. There is also a concurrent finding that the sale deed (Ex.PW 1/a) by which the lands were sold by Rikhi Ram to the Appellant-Board contained a clause giving respondents 1 to 3 a right of approach through the land purchased by the appellant; that in the absence of proper evidence led by present appellants (original defendants) by producing the relevant record, adverse inference had to be drawn to hold that fencing was put in the year 1986 as claimed by the plaintiffs; that the trial court was not right in holding that the map (Ex.PW 1/o) was not approved and, therefore, the claim of the respondents-plaintiffs cannot be accepted. The High Court considered the findings of facts recorded by the Additional District Judge and held that these findings did not call for any interference under section 100 of the CPC in the second appeal. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondents 1 to 3, is through the land of the appellant-defendant and as such they had a right to approach their land as claimed by them and the appellant-defendant had no right to obstruct the said approach by putting up a barbed wire fencing. It was argued before us, as before the High Court, that by reason of section 16 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), once an award has been made under section 11 of the Act and possession of the acquired land taken, the land would vest absolutely in the Government "free from all encumbrances". Our attention was also drawn to the definition of "land" in section 3(a) and "person interested" in section 3(b) of the Act. Reliance was also placed on a judgment of this Court in State of Himachal Pradesh v. Tarsem Singh and Others ((2001) 8 SCC 104) to contend that, even assuming respondents 1 to 3 had a right of way by easement over the land of Rikhi Ram, which was purchased by the appellant, the said land having been acquired under section 16 of the Act stood vested in the State Government absolutely and free from all encumbrances including such easementary right. The High Court considered several judgments cited before it and drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity like a right of passage and held that right of passage by way of necessity, as enjoyed by the respondents-plaintiffs over the land of Rikhi Ram and now acquired by the appellant- defendants, was not extinguished by reason of acquisition. The High Court relied on the observations of this Court made in Collector of Bombay v. Nusserwanji Rattanji Mistri and others. (AIR 1955 SC 298), wherein it is observed thus : "Under Section 16, when the Collector makes an award "he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance". The word "encumbrance" in this section can only mean interests in respect of which a compensation was made under s.11 or could have been claimed." This judgment of Collector of Bombay (supra) was a judgment by a Bench of three learned Judges of this Court. Learned counsel for the appellants drew our attention to the judgment in State of Himachal Pradesh (supra) rendered by a Bench of two learned Judges and contended that this judgment clearly holds that the phrase "free from encumbrances" used in section 16 of the Act is wholly unqualified and would include in its compass every right including an easementary right which affects the land. He particularly drew our attention to Paragraph 10 of the judgment where the court took the view: "all rights title and interest including easementary rights stood extinguished and all such rights title and interest vested in the State free from all encumbrances." In the first place, it is difficult for us to read the judgment in Tarsem Singh case (supra) as taking a view contrary to and differing from the law laid down by a larger Bench in Collector of Bombay (supra). Secondly, we notice that the decision in Tarsem Singh (supra) is not in respect of an easementary right arising out of necessity. There does not seem to be any discussion on the said aspect of the matter in this judgment. The view taken in Collector of Bombay (supra), therefore, appears to hold the field, particularly where the nature of easementary right claimed is not capable of being evaluated in terms of compensation and arises out of sheer necessity. In the peculiar facts and circumstances of the case, therefore, the distinction drawn by the High Court about non- extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. In any event, we do not think that the present is a fit case where it is necessary for us to go deeper into this larger issue of law for we are satisfied that the judgment of the High Court under appeal is not one which is required to be interfered with in exercise of our jurisdiction under Article 136 of the Constitution. For all these reasons we are of the view that the appeal has no merit and deserves to be dismissed. The appeal is hereby dismissed. No costs.

NO LIMITATION FOR REMOVING ENCROACHMENT INTO PUBLIC/PRIVATE ROAD. NO REPRESENTATIVE SUIT IS REQUIRED TO REMOVE.

                                        1
                                                          REPORTABLE


                       IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 1042     OF 2011

                 [Arising out of SLP (C) No. 35813 of 2009]



HARI RAM                                      ....Appellant


Versus



JYOTI

PRASAD       &

ANR.

       ...




Respondents

                             JUDGMENT



Dr. MUKUNDAKAM SHARMA, J.

1.     Leave granted.

2.     By this judgment and order, we propose to dispose of the

aforesaid appeal which is filed by the appellant herein after

being aggrieved by the judgment and order passed by the High Court
                                 2
in RSA No. 2698 of 2008 affirming the judgment and decree passed

by   the    trial    Court   in   Civil   Suit      No.   160   of   2003    which   was

affirmed by the First Appellate Court in Civil Appeal No. 92 of

2007.      These    facts,   therefore,      make   it    crystal    clear    that   the

present appeal is directed against the concurrent findings of fact

of the High Court, the first Appellate Court i.e. the judgment of

the Additional District Judge and the trial court which was the

Court of Civil Judge (Junior Division).



3.    In

order       to




appreciate the contentions raised before us by the learned counsel

appearing for the appellant, it would be necessary to set out

certain basic facts leading to filing of the present appeal.



4.    The suit was filed by the respondent herein contending inter

alia that all the six persons including respondent No. 1 have

their      common    interest     in   the    disputed      street    alongwith      co-

inhabitants of the same area.             It was stated that the residential
                               3
houses of the respondents are falling in the site plan which

indicates that there is a common street for ingress and egress of

the general public.        It was alleged in the plaint that earlier Bal

Kishan Dass who was examined as PW-4 was the original owner of the

entire area out of which he curved out a colony selling plots in

favour of various parties.         It was also stated in the plaint that

at that time itself a 10 feet wide public street was left on the

ground as detailed in the site plan for the common use of all the

plot

holders

of     the

colony,

but

further




allegation   was    that    the   appellant/defendant   from    the   time    of

possession of his plot had evil eye on the aforesaid disputed

street and the defendant No. 1 and he namely defendant No. 2

encroached upon substantial part of the same making the street

narrowed   down    causing   inconvenience   to   the   users   of    the   said

street. Incidentally the suit was filed invoking Order I Rule 8 of

Code of Civil Procedure [called in short `C.P.C.'].
                                           4
5.    In   the   plaint      it   was   further   stated     that    earlier    the

respondent No. 1 as complainant filed a complaint under Section

133   of   the   Code   of   Criminal    Procedure,   1973    (for    short    "the

Cr.P.C.") which was decided in favour of the plaintiff/respondent

No. 1 and the said judgment was passed by the SDM.



6.    When the matter was challenged before the Punjab and Haryana

High Court, the High Court held that the matter which is agitated

relates

to

disputed

facts   and

therefore

requires

evidence

and     that

the

dispute

between the parties could only be effectively decided if a civil

suit is filed.          As the High Court had held that the dispute

between the parties would be decided by filing a civil suit,

consequently the aforesaid plaint was filed in the Court of Civil

Judge (Junior Division) which was registered as Civil Suit No. 160

of 2003.
                                  5
7.   Defendant Nos. 1 and the present appellant as defendant No. 2

filed a combined written statement raising objections regarding

the maintainability of the suit and also with regard to the merit

of the contentions raised in the plaint.            On the basis of the

pleadings of the parties, four issues were framed by the trial

court to the following effect:

      1. Whether the defendants have made illegal / unauthorized
      construction over the public street by way of illegal
      encroachment as shown in red colour in the attached site




      plan shown by letters ABCD situated at village Matlauda,
      Distt. Panipat ? OPP.

      2.In case issue No. 1 is decided in favour of plaintiff,
      then whether plaintiff is also entitled to injunction, as
      prayed for? OPP.

      3.Whether suit filed by the plaintiff is not maintainable
      in the present form? OPD.

      4.Relief.



8.   To   substantiate   his   case,   the   plaintiff/respondent   No.   1
                                        6
examined    8   witnesses   and   produced     some   documents   whereas     the

present appellant as defendant No. 2 examined himself as DW-1 as a

sole witness. After recording the evidence adduced by the parties

the learned Civil Judge (Junior Division) heard the parties and

thereafter by a judgment and decree dated 6.12.2007 decreed the

suit and a permanent injunction was issued directing the removal

of unauthorized construction from the ground as shown in the site

plan.     Since, the defendant No. 1 had already removed his portion

of

illegal




construction, the present appellant was given one month's time to

remove all such constructions failing which respondent No. 1 was

given their legal right to get the said construction removed on

his   own   expenses   which   was   allowed    to    be   recovered   from   the

defendants.       The defendants were further restrained from raising

any further construction in future on the aforesaid 10 feet Rasta

as detailed in PW - 7A.
                                   7
9.    Being aggrieved by the aforesaid judgment and order passed by

the   trial    court,   an   appeal    was     filed    before   the   Additional

District Judge, Panipat whereas the appeal was registered as Civil

Appeal No. 92 of 2007.             The aforesaid appeal was heard by the

Additional District Judge who by his judgment and decree dated

25.7.2008      dismissed     the     appeal     filed     by     the   appellant.

Thereafter, the appellant filed a second appeal before the Punjab

and Haryana High Court which was registered as RSA No. 2698 of

2008.



10.   By   a

judgment

and

decree

dated




31.7.2009, the aforesaid appeal was also dismissed by the High

Court holding that there is no specific question of law involved

in the aforesaid appeal.



11.   Being still aggrieved, the present appeal was filed by the

appellant      herein   in   which    notice    was    issued    and   on   service

thereof, we heard the learned counsel appearing for the parties.
                                   8
12.    Mr. Anoop G. Choudhary, learned Senior Counsel appearing for

the appellant very forcefully argued that none of the judgments

and    decrees   passed     by   the   courts   below   is    justified.       He

submitted      that   the   suit   itself   was   barred     by   limitation   but

despite the said fact and despite the fact that a specific stand

was taken in the written statement contending that the suit is

barred by limitation, no such issue was framed by the trial Court

and no decision was rendered by the trial court as also by the

appellate

Court     on

the     said

issue   and

that     the

High

Court   was

not

justified

in

dismissing the plea raised by the appellant on the ground that the

cause of action is a continuing cause of action and, therefore, it

cannot be said that the suit is barred by limitation.                 His second

contention was that there could and should have been no finding

regarding the encroachment made by the appellant in absence of

production of any official document to indicate that there was in

fact a public street used by the residents of the area.                        He
                                9
submitted that no evidence has been led to prove and establish

that it was a public street on which encroachment was made by the

appellant. His last submission was that the suit was said to be in

representative capacity as shown in the plaint but the formalities

for instituting a case i.e. representative suit was not followed

and therefore the suit should have been dismissed at the very

threshold itself.



13.   The

aforesaid




submissions   of    the    learned   senior      counsel    appearing   for    the

appellant were refuted by the learned counsel appearing for the

respondents who placed before us the findings recorded by the

three courts below and relying on the same, it was submitted that

the present appeal has no merit at all.



14.   In the light of the aforesaid submissions of the counsel

appearing   for    the    parties,   we   also    perused    the   records    very
                                  10
carefully.     We would first deal with the plea of limitation as

raised before us by the appellant.



15.    The records placed before us do disclose that the appellant

in his written statement took up a plea that the suit is barred by

limitation. However, despite the said fact no issue was framed nor

any grievance was made by the appellant for non-framing of an

issue of limitation.



16.    On

going

through

the

records,

we do not

find    that

the

appellant

has made any submission before the trial court as also before the

first appellate court regarding the plea of limitation.     Such a

plea is seen to have been made before the High Court.     The said

plea which was made before the High Court was considered at length

by the High Court and the High Court held that although such a

plea was not raised either before the trial court or before the

appellate court, the same could be raised before the High Court in
                                11
view of the provisions of Section 3 of the Limitation Act which

places an obligation upon the Court to discuss and consider such a

plea despite the fact that no such plea was raised and argued

before the Trial Court as also before the First Appellate Court.



17.   The High Court after considering the aforesaid plea held that

the   suit     cannot    be    said    to   be    barred       by    limitation       as    an

encroachment      on    a     public   street     is     a     continuing         wrong    and




therefore,     there     exists    a   continuing        cause      of    action.          The

records disclose that initially a complaint under Section 133 of

Cr.PC was filed which was pursued with all sincerity upto the High

Court.   But    the     High   Court   held      that    the     dispute      between      the

parties could be better resolved if a proper civil suit is filed

and when evidence is led with regard to the disputed questions of

fact.    We find from the records that immediately thereafter the

aforesaid      suit     was    filed    seeking         issuance         of   a    mandatory
                                 12
injunction. In view of the aforesaid facts and also in view of the

fact that encroachment on a public street by any person is a

continuing     cause    of    action,     we    find       no   merit       in   the   said

contention.



18.    Any act of encroachment is a wrong committed by the doer.

Such     an   encroachment     when     made    to     a    public         property    like

encroachment to public road would be a graver wrong, as such wrong




prejudicially affects a number of people and therefore is a public

wrong.    So long any obstruction or obstacle is created to free and

unhindered     access   and    movement    in    the       road,     the    wrongful    act

continues thereby preventing the persons to use the public road

freely and unhindered. Therefore, that being a continuing source

of wrong and injury, cause of action is created as long as such

injury    continues     and   as   long   as    the    doer     is    responsible       for

causing such injury.
                                          13


19.    At this stage it would be apposite to refer to and rely upon

Section 22 of the Limitation Act, 1963, which reads as follows:

        "In case of a continuing breach of contract or in
        case of a continuing tort, a fresh period of
        limitation begins to run at every moment of the time
        during which the breach or the tort, as the case may
        be, continues."


This   court   had   the   occasion   to   deal   with   Section   22   of   the




Limitation Act, 1963, in the case of Sankar Dastidar v. Shrimati

Banjula Dastidar and Anr reported in AIR 2007 SC 514, in which the

Supreme Court held that when a right of way is claimed whether

public or private over a certain land over which the tort-feaser

has no right of possession, the breaches would be continuing, to

which the provisions of Section 22 of the Limitation Act, 1963,

would apply. Therefore, in our considered opinion the plea that

the suit is barred by limitation has no merit at all.
                                            14


20.    The next plea which was raised and argued vehemently by the

learned senior counsel appearing for the appellant was that the

suit was bad for non-compliance of the provisions of Order I Rule

8 of the CPC. The said submission is also found to be without any

merit as apart from being a representative suit, the suit was

filed by an aggrieved person whose right to use public street of

10 feet width was prejudicially affected.              Since affected person

himself

has    filed

a      suit,




therefore, the suit cannot be dismissed on the ground of alleged

non-compliance of the provisions of Order I Rule 8 of the CPC.



21.    In this connection, we may appropriately refer to a judgment

of    the   Supreme   in   Kalyan   Singh,    London   Trained   Cutter,   Johri

Bazar, Jaipur Vs. Smt. Chhoti and Ors. reported in AIR 1990 SC

396.    In paragraph 13 of the said judgment, this Court has held

that suit could be instituted by representative of a particular
                                 15
community but that by itself was not sufficient to constitute the

suit as representative suit inasmuch as for a representative suit,

the   permission   of    Court   under   Order   I    Rule      8   of   the   CPC   is

mandatory.



22.   In paragraph 14 of the said judgment, it was also held that

any member of a community may successfully bring a suit to assert

his   right   in   the   community   property        or   for       protecting   such

property

by

seeking

removal

of




encroachment therefrom and that in such a suit he need not comply

with the requirements of Order I Rule 8 CPC.                 It was further held

in the said case that the suit against alleged trespass even if it

was not a representative suit on behalf of the community could be

a suit of this category.
                                   16
23.    In that view of the matter and in the light of the aforesaid

legal position laid down by this Court, we hold that the suit

filed by the plaintiff/respondent No. 1 was maintainable.



24.    According to the appellant no official document was placed

and no official witness was examined to prove and establish that

the suit land was a public street in which encroachment is made by

the appellant.      At this stage it would be appropriate to mention

that    the

suit    was

initially




instituted    against    two    defendants   namely   defendant    No.    1   and

defendant No. 2.        The appellant herein was defendant No. 2 in the

said suit.     So far as defendant No. 1 is concerned, the records

disclose that the Panchayat of the area took a decision that both

of them have encroached upon a public property and the street and

therefore they should remove the encroachment.               It is disclosed

from the records that pursuant to the aforesaid decision of the

Panchayat,    the   defendant    No.   1   removed   his   encroachment   after
                                17
admitting that he had also encroached upon some area of the 10

feet wide street which fact he admitted before the panchayat and

later on he removed the said encroachment. The aforesaid fact is

established from the statements of PW-1. Jyoti Parshad, PW-5 -

Sadhu Ram and PW-6 - Ram Pal who were present and participated in

the said Panchayat also corroborated the said admission before the

Panchayat.




25.

Besides,

in    all   8

witnesses

were

examined

by      the

plaintiff


respondent No. 1.            PW-3, Dharam Singh Patwari who was examined in

the suit proved the report of the BDO who had visited the disputed

property    on       18.1.1995    after   which   he    also   submitted   a   report

certifying that an encroachment has been made by the appellant

over the disputed street.             Bal Kishan Dass who was also examined

as PW-4 had specifically stated in his evidence that he had carved

out a colony in the year 1981-82 and he had sold the plots to the

plaintiff       as    well   as   defendants   and     other   inhabitants     of   the
                                               18
village       and      towards      eastern     side   of     the    plot    of      the

defendant/appellant he had left a street of 10 feet width.



26.    As against the aforesaid evidence adduced on behalf of the

plaintiff/respondent No. 1, the appellant examined himself as DW-1

wherein he only took a stand that disputed property is not a part

of     the    street     and     that   after    purchasing    the    plot    he     had

constructed the house and despite the said fact no objection was

taken    and

therefore

it    cannot

be      said

that         he

had




constructed a house also on a part of the said disputed suit

property.



27.    On    appreciation      of   the   aforesaid    evidence,     all    the    three

courts namely the High Court, the First Appellate Court as also

the trial court held that the aforesaid disputed suit land is a

part of the public street where the appellant has encroached upon

by constructing a part of the house. The aforesaid findings are
                                       19
therefore findings of fact.          Public Officer namely Patwari was

examined who had proved the report submitted by the BDO stating

that part of the suit property is a public street.



28.    Ext. PW-7A filed by the plaintiff/respondent is a site plan

which proves and establishes that there is a public street of 10

feet width.    In all the sale deeds of the area as disclosed from

the statement of PW-4 Bal Kishan Dass, the aforesaid street of 10

feet

width    is

shown   and

the

aforesaid

evidence

go




unrebutted. Thus there exists a street of 10 feet width.                It is

also proved from the evidence on record that the appellant has

encroached    upon   the   suit   property   consisting   of   the   aforesaid

street of 10 feet width.           That being the position, we find no

infirmity in the judgment and decree passed by the Trial Court and

affirmed by the First Appellate Court and by the High Court in the

Second Appeal.
                                            20
29.   We,    therefore,    find      no    merit     in   this      appeal   which   is

dismissed with costs, which is assessed by us at Rs. 10,000/-.

The   decree   passed     by   the    trial     court       is    confirmed.   If    the

appellant fails to vacate and remove the unauthorized encroachment

within a period of 60 days from today, it will be open for the

plaintiff/respondent       No.    1       to   get    the        decree   executed    in

accordance with law.




30.     In

terms   of

the

aforesaid




observations and directions, the appeal is dismissed.



                                      ........................J
                                      [Dr. Mukundakam Sharma]



                                      ........................J
                                      [Anil R. Dave]
New Delhi
January 27, 2011

IMPLIED GRANT- EASEMENT

IMPLIED GRANT-CAN BE INFERRED FROM THE CIRCUMSTANCES FOR THE REASON THAT NO OTHER PATHWAY WAS PROVIDED FOR ACCESS TO "A" SCHEDULE PROPERTY OF THE PLAINT ,EXCEPT THROUGH "B" SCHEDULE PROPERTY OF PLAINT FROM THE BEGINING TILL DISPUTE AROSE, HENCE IT CAN BE TREATED AS A IMPLIED GRANT AS THERE IS NO WAY TO ENJOY THE "A" SCHEDULE PROPERTY-2010 SAR CIVIL 149