UMRAH KHATOON versus MD. ZAFIR KHAN AND ORS.

Citation: [1996] SUPP. 10 S.C.R. 116 · Decided: 16-12-1996 · Supreme Court of India · Bench: N.P. SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
UMRAH KHATOON 
v. 
MD. ZAFIR KHAN AND ORS. 
DECEMBER 16, 1996 
[N.P. SINGH AND B.L. HANSARIA, JJ.) 
Easement Ac~ 188~Section 15--Right to discharge the drain water 
over the land in questi01t-Claim on the basis of such discharge for long 
time-Held, claim acceptable. 
Practice and Procedure-Technical plea-Non-maintainability. of 
suit-Question of law-First time raised before Supreme .Court-l'laintiff 
claiming right over suit passage and in the alternative claiming easeme1Jtary 
right to discharge drain water over the land of defendant-Claim of eaiement-
right was accepted by Trial Court, as well as by the first appellate court-But 
D High Court rejected the claim of easement-right, as it was only the result of 
artistic drafting of prayer portion and Plaintiff was in-reality claiming title to 
the land-Plea of non-maintainability was raised before Supreme Court-Plea 
being technical in nature, raised after the defendant has lost on meriHn the 
interest of justice, such plea not to be allowed. 
E 
Appellant filed a suit to declare that she had acquired easementary 
right to use the suit passage for discharge of drain water. The Trial Court 
decreed the suit and it was also confirmed in first appeal. High Court, in 
second appeal, dismissed the suit of the plaintiff only on the ground that 
in para 7 or the plaint, the plaintiff had claimed title to the suit land, 
F though the relief prayed for was not based on the title as such. This was 
the result of artistic drafting or the prayer portion and as the appellant 
has failed to establish her title, she could not turn around and claim relier 
on the basis or easement. Hence, this appeal. 
The respondents' contention was that the High Court took the 
G correct stand that the suit filed by the plaintilTwas not maintainable. The 
appellant contended that the High Court has not dismissed the suit on 
this ground as the statement in para 7 of the plaint was concerned, it might 
not be read in isolation, but with the other averments in the plaint. It 
showed that the relief was being sought on the basis of acquisition or 
H easementary right and she might not lose such right only because in the 
116 
118 
SUPREME COURT REPORTS(1996] SUPP.10 S.C.R. 
A "the suit land is existing since 1918 and is part of the plaintiffs house". The 
High Court has opined that this statement shows that the plaintiff was 
claiming title to the suit land, though the relief prayed for was not based 
on title as such. This, according to the High Court, was the result of 
artistic drafting of the prayer portion. After placing reliance on the judg-
B ment of this court in Chapisibhai Dhanjibhai Dand v. Purshottam, AIR 
(1971) SC 1878, the High Court came to the conclusion that as the 
plaintiff-respondent had failed to establish title, she could not turn round 
and claim relief on the basis of easement. 
2. A reading of the High Court's judgment shows that it confined its 
C attention only to the aforesaid averment in the paragraph 7 of the plaint, 
as to which it was submitted that the statement might not be read in 
isolation but may he read along with other averments in the plaint, which 
show that the relief was really being sought on the basis of acquisition of 
easementory right. We have, however, perused the whole plaint and find 
that the plaintiff had indeed claimed titled over the lane and, in the 
D alternative, had contended if her title were not to be accepted, she had in 
any case acquired easementory right to discharge the drain water. 
3. A perusal of the first appellate judgment shows that the plaintiff 
did fight for her title over the land so much so that a Pleader Commissioner 
E was appointed to find out as to whether the land was part of plot No. 650 
of plaintiff's land or appertained to plot No. 649 which is part of 
defendant's land. 
· 4. Plaintiff's claim for title may not he accepted for reasons which 
may not be adverted. But then, the plaintiff's claim for easementory right 
F has been accepted by the Trial Court as well as the first appellate court. 
5. The question which, therefore, arises is as to whether plaintiff 
should lose altogether, even though her claim for easementory right has 
been found acceptable, because she also claimed title over the lane. Shri 
Mukherjee appearing for the respondent, urged that the High Court took 
G the correct stand inasmuch as the suit filed was really non-maintainable. 
The learned counsel submitted that though the High C

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