Md. Ershad Ali @ Hajee Ershad Ali Vs. Hajee Ashid Ali and others, II ADC (2005) 833

Case No: Civil Appeal No. 51 of 1993

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. M Nurullah,,

Citation: II ADC (2005) 833

Case Year: 2005

Appellant: Md. Ershad Ali

Respondent: Hajee Ashid Ali and others

Subject: Easement Right, Procedural Law,

Delivery Date: 1994-5-2

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
ATM Afzal J
Latifur Rahman J
 
Md. Ershad Ali @ Hajee Ershad Ali
….................Appellant
Vs.
Hajee Ashid Ali and others
………….....Respondents
 
Judgment
May 2, 1994.
 
Nature of Easement Right
Easement right cannot lead to an excessive user and it must not impose an additional burden on the servient owner. …. (6)
 
Cases Referred to:
Jamna Prashad vs. Gopinath, 19 I.C. 984; Lala Balbir Singh vs. Amar Singh, 39 I.C. 590=A.I.R. 1917 Allah, 380; Dadu vs. Emperior, 90 I.C. 149; Chintamani  Hargovan  vs. Ratanji Bhimbhai, 59 I.C. 426; Mohammad Abbas vs. Jahangir, A.I.R. 1932 (Oudh) 274 and Gale on Easements, 1962 Edition page 4; Judoo Lall Mullick vs. Gopaul Chunder Mookerjee, 13 LA. 77 and 1877 L.R. (5) 133.
 
Lawyers Involved:
M. Nurullah, Senior Advocate instruct­ed by Sharifuddin Chaklader Advocate-on-Record - For the appellant.
M.A. Matin, Advocate instructed by M. Nawab Ali, Advocate-on-Record - For Respondent Nos. 1-12.
Not Represented - Respondent Nos. 13-15.
 
Civil Appeal No. 51 of 1993.
(From the Judgment and Order dated 17-2-93 passed by the High Court Division in Civil Revision No. 2114 of 1990).
 
JUDGMENT
 
Mustafa Kamal J.
 
This appeal by leave by the defendant-appellant is from the judgment and order dated 17-2-93 passed by a learned Single Judge of the High Court Division in Civil Revision No. 2114 of 1990, discharging the Rule.
 
2. The respondents as plaintiffs filed Title Suit No. 193 of 1987 in the Court of Assistant Judge, Sadar, Sylhet for declara­tion of an easement right over the suit path­way, confirmation of possession and also for permanent injunction restraining the defendant-appellant and others from inter­fering with their possession of the pathway and from changing the nature and character of the same in any manner by putting any obstruction e.g., a gate at the entrance of the pathway. They claimed the suit pathway to be in existence for over a century over which the owners of adjacent lands had been enjoying the easement right uninter­ruptedly, continuously and peacefully, the suit pathway is the plaintiffs only way for the ingress and egress of their house leading to Sylhet Municipal Road which runs to the south of it. As the defendants started con­structing a gate-way at the entrance of the suit pathway the plaintiffs, along with the filing of the suit, filed an application for temporary injunction and the trial Court by order dated 31-10-87 directed the parties to maintain status quo. On 3-12-87, the trial Court allowed the plaintiffs' prayer for amendment of the plaint after paragraph 4 of the plaint in the following terms, as prayed for:-
 
3. The trial Court however dismissed the application for temporary injunction by order dated 29-3-88 whereupon the plain­tiffs preferred Miscellaneous Appeal No. 38 of 1988 in the Court of District Judge, Sylhet which is pending in the 2nd Court of Subordinate Judge, Sylhet. On 7-6-90 the plaintiff-respondents filed an application before the 2nd Court of Subordinate Judge, Sylhet for permission to bring gas line and water line by putting pipes under the suit pathway and by order dated 20-9-90 the learned Subordinate Judge, Sylhet gave permission to the plaintiff-respondents to bring gas connection under the suit pathway on condition that they will repair at their own costs the damages caused to the path­way for taking the gas line.
 
4. The defendant-appellant, alone among several defendants, challenged the aforesaid order dated 20-9-90 before the High Court Division in Civil Revision No. 2114 of 1990 and as already noticed the Rule was discharged on the finding, inter alia, that the existence of easement right over the suit pathway having been admitted by the appellant plaintiffs an absolute right over the pathway nor will cause irreparable damage to the pathway or to the appellant.
 
5. Leave was granted to the defendant-appellant to consider the submission that the plaintiff-respondents are not entitled to take the gas line under the suit pathway before determination of their alleged right of easement over the suit pathway and, fur­ther, even if they are found to be entitled to the easement right, they cannot claim a fur­ther and a new right of taking gas line etc. through the pathway which is in the nature of an absolute right inhering only in the owners of the land.
 
6. Mr. Md. Nurullah, learned Advocate for the defendant-appellant, submits that the plaintiff-respondents' easement right has not yet been established. Even if they have a right of way of one kind that does not include a right of way of another kind. Easement right cannot lead to an excessive user and it must not impose an additional burden on the servant owner. He relies upon the cases of Jamna Prashad vs. Gopinath, 19 I.C. 984; Lala Balbir Singh vs. Amar Singh, 39 I.C. 590=A.I.R. 1917 Allah, 380; Dadu vs. Emperior, 90 I.C. 149; Chintamani  Hargovan vs. Ratanji Bhimbhai, 59 I.C. 426; Mohammad Abbas vs. Jahangir, A.I.R. 1932 (Oudh) 274 and Gale on Easements, 1962 Edition page 4.
 
7. Mr. M.A. Matin, learned Advocate appearing for plaintiff-respondent Nos. 1-12, submits on the other hand that a right of way also includes such ancillary right as the right to use the sub-soil. He relies upon sec­tions 3(4) (a) and 44(1) of the State Acquisition and Tenancy Act, Gale on Easements, 13th Edition, page 39, Halsbury's Laws of England, Vol. 14 (4th Edition) page 7 and the cases of Judoo Lall Mullick vs. Gopaul Chunder Mookerjee, 13 LA. 77 and 1877 L.R. (5) 133 in support of his submission.
 
8. For the purpose of this appeal we find it to be unnecessary to give a decision on the respective merits of the two sides' sub­mission. The right of pathway, admitted by the defendant- appellant in an interlocutory proceeding, has not finally resulted in a declaration of the plaintiffs easement right over the suit pathway. The plaintiff-respon­dents did not claim in the suit itself any relief in respect of laying down any gas or water connection under the suit pathway. The suit itself is limited to declaration of their easement right, confirmation of pos­session and permanent injunction. The suit is not in the nature of obtaining for the plaintiff-respondents an additional facility or user on an admitted easement right. The permission given was therefore outside of the scope of the suit itself and it cannot be determined at this stage as to whether the gas connection will create an additional burden on the servant owner or will be a mere ancillary right. A suit filed with the purpose of restraining the defendants from creating obstructions in the use of the path­way by the plaintiffs cannot be stretched, during the pendency of it, to the point of allowing the plaintiffs to use the under­ground while the litigation is pending, as that will be putting the cart before the horse. The permission granted to the plaintiff-respondents was therefore misconceived and cannot be sustained. The High Court Division erred in law in not comprehending the nature and scope of the suit itself.
 
The appeal is allowed but without any order as to costs.
 
Ed.