Owners Can Claim Easement Of Necessity
Appellate Division :
Md Abdul Wahhab Miah J
Md Imman Ali J
AHM Shamsuddin Choudhury J
Abdul Rab Hawlader and
August 5th, 2015
Easement Act (V of 1882)
Easement right of way-As he has an alternative pathway, he is not entitled to any relief by way of an order for easement of necessity.
There is little doubt that Section 13 of the Act is applicable only when properties owned jointly are partitioned amongst co-sharers, which is not, admittedly the scenario in the case. It is also revealed by the transcript of evidence that the plaintiff himself stated during cross-examination that he has an alternative pathway to the north-east side of his house, as such, he is not a land-locked property ownerâ€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦(9 & 13)
AJ Mohammad Ali, Senior Advocate, instructed by Zainul Abedin, Advocate-on-Record-For the Appellant.
Mahbubey Alam, Senior Advocate, instructed by Sayd Mahbubar Rahman, Advocate-on-Record-For Respondent No.1.
None Respresented-For the Respondent No. 2.
Md Imman Ali J : This appeal by leave was filed by the defendant before the trial Court, who challenges the judgment and the order of the High Court Division dated 25-4-2006 passed in Civil Revision No, 377 of 2000, making the Rule absolute.
2. The respondent No. 1 before us filed Title Suit No. 93 of 1996 (re-numbered as Title Suit No. 157 of 1997), in the Court of Additional Assistant Judge, Dhaka, seeking declaration on his claimed easement right of way over the suit land. He also sought an order of mandatory injunction for the removal of obstructions created by the defendant-appellant on his right of way. He averred that on 2-6-1981 he purchased 5Â½ decimals of land in SA Plot No. 3300, corresponding to RS Plot Nos. 11 and 241, and then mutated his name. On 4-1-1983, his plan to construct a 4-storied building received Dhaka Improvement Trust's (now RAJUK) approval and then he proceeded with construction work and has been residing in a portion of the so far completed building, while other parts of the building are occupied by his tenants.
3. Contiguous to his said house there exists a pathway 12 feet in breadth and 200 feet in length from the east to the west which meets with a major road, situated on the west. Plaintiffs predecessors were using the said pathway for over 20 years and there is no other pathway to lead to the road. In July 1995, as the defendant created obstruction, the plaintiff objected, but to no avail, and hence the suit.
4. Defendant No. 1's case is that there is no existence of any pathway as claimed by the plaintiff and it is not even mentioned in the kabala concerned by which he bought the land. There is no electricity post on the so-called pathway.
5. The case of the defendant No.2 is that she purchased 36Â½ decimals of land of CS Plot Nos. 3301, 3303 and 3304 from one Hafizuddin and others in 1981 and then duly mutated the land, demarcated her land by erecting 6 feet high wall all around. She also constructed a number of tin shed rooms for security guards. She also erected a partly constructed building; and of those tin sheds, one big room is used for poultry and she is owning and possessing the property she purchased and that the so-called pathway shown in the sketch map of the plaint is not a pathway at all and there is no existence of any such pathway in the CS, SA or RS map and the land which has been projected in the sketch map as a pathway is part of her land, which she has been possessing for a long time by erecting boundary wall. It is also her contention that since the plaintiff claims that he purchased his property from Plot No. 3300 in 1981 and constructed the building in 1995, there arose no scope for the plaintiff to use the so-called pathway for over 20 years.
6. The learned Assistant Judge, 4th Court, Dhaka, dismissed the suit on 24-6-1998, which prompted the plaintiff to prefer Title Appeal No. 251 of 1998, but the then learned Sub-ordinate Judge, Commercial Court No.2, Dhaka, also came up with a negative finding, dismissing the appeal on 25-7-1999.
(To be continued)