LexDR. S. KUMAR & ORS. versus S. RAMALINGAM
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A B C D E F G H 531 DR. S. KUMAR & ORS. v. S. RAMALINGAM (Civil Appeal Nos.8628-8629 of 2009) JULY 16, 2019 [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.] Transfer of Property Act, 1882 – s. 48 – One CLR was the owner of big chunk of land on Mowbrays Road in the city of Chennai – He executed three separate sale deeds – First sale deed was in favour of defendant no.1 in respect of property measuring 3483.66 sq. feet – Another adjoining land was purchased by defendant no.2- wife of defendant no.1 vide separate sale deed – Plaintiff- Respondent purchased land measuring 3525 sq. feet – Defendant no.1’s land abutted Mowbrays Road whereas the land purchased by defendant no.2 touched the back of defendant no.1’s land – Respondent filed two suits inter alia claiming injunction against the defendants-appellants from using a pathway shown as A B C D in the plaint and claiming exclusive right to use the same – Another suit was filed restraining the defendants from preventing the plaintiff from using the pathway to reach their land E F G H – Suits dismissed – First Appellate Court allowed the appeal and granted injunction holding that there is no necessity of easement as the defendant no.2 has access from the property of her husband which is on Mowbrays Road – High Court upheld the judgment – Held: There are three separate layout plans on record – First layout plan is of the land sold to defendant no.1 on December 05, 1973 wherein the adjacent land to the land sold is 12 feet wide strip throughout the length of the land – Second layout plan is of the land sold to defendant no.2 showing that the same 12 feet wide strip abutting the land is conveyed to defendant no.2 – Third lay out plan is attached to the land sold to the plaintiff which is adjacent to the land sold to defendant no. 2 – However, schedule shows 16 feet wide strip 103 feet long which ends with the outer boundary of the plot sold to defendant No. 2 – Relationship of defendant nos.1 and 2 will not negate the grant of easement right of passage granted to her in the sale deed only because the recital is generic in nature and usually put by the deed [2019] 10 S.C.R. 531 531 A B C D E F G H 532 SUPREME COURT REPORTS [2019] 10 S.C.R. writers – Once the land has been sold with the right of access through the land adjoining the property sold, such right could not be exclusively conferred to the plaintiff in the sale deed dated May 31, 1988– s.48 contemplates that where a person i.e. CLR created different rights in or over the same property i.e. 16 feet wide strip of land and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created – Since the right of access to defendant no.2 was reserved in the sale deed dated April 1, 1976, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed dated May 31, 1988 – Plaintiff has to maintain the 16 feet wide passage in any case in terms of the recital in his sale deed – Therefore, if the defendant no.2 or her transferees use the passage, then such use of passage cannot be said to be causing any prejudice to the plaintiff – Judgment of the High Court cannot be sustained – 16 feet x 103 feet passage adjoining the property of the defendants leading to the property of the plaintiff is reserved for the common use of defendant no.2 and of the plaintiff – Property Law – Easement Rights – Indian Easements Act, 1882 – s.41. Property Law – Easement Rights – Right of easement vis-à-vis right of necessity – Discussed. Allowing the appeals, the Court HELD: 1.1 There are three separate lay out plans on record. First, when the land was sold to defendant No. 1 on December 5, 1973. In the said lay out plan, the adjacent land to the land sold is 12 feet wide strip throughout the length of the land. Second lay out plan is of the land sold to defendant No. 2. It shows that same 12 feet wide strip abutting the land is conveyed to defendant No. 2 on April 1, 1976. Third lay out plan is attached to the land sold to the plaintiff vide agreement dated May 13, 1978 in respect of an area which is adjacent to the land sold to defendant No. 2. However, schedule shows 16 feet wide strip 103 feet long which ends with the outer boundary of the plot sold to defendant No. 2. The relationship of defendant Nos. 1 and 2 will not negate the grant of easement right of passage granted to her in the sale deed only because the recital is generic in nature a
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