Saturday, October 19, 2019 | ePaper

Land-locked Property

Owners Can Claim Easement Of Necessity

  • Print
(From previous issue) :
7. The plaintiff then moved the High Court Division with the aforementioned civil revisional application, and obtained Rule, which upon hearing was made absolute.
8. The plaintiff then filed Civil Petition for Leave to Appeal No. 1120 of 2006. Leave was granted to consider the following grounds:
"I. That since the plaintiff and the defendants are not co-sharers and there had been no partition among themselves, the plaintiff is not entitled to get any relief on the ground of easement of necessity under Section 13 of the Easement Act as the same is available only when a common tenement is partitioned or divided among the tenants and so to get relief on the ground of easement of necessity two tenements must have to be owned by one owner and since the plaintiff did not purchase his land from the defendants or their predecessors, he is not entitled to get any relief on the ground of casement of necessity.
II. That the plaintiff in his cross-examination having admitted that he has a pathway on the north-east corner of his plot, is not entitled to get any relief as he has an alternative pathway.
III. That the High Court Division also did not consider the plaint, the written statement, the documents exhibited by the plaintiff and the defendants as well as the deposition of the witnesses of the plaintiff and the defendants."
9. As we took up the appeal for disposal, Mr AJ Mahammad Ali argued that since the plaintiff and the defendants are not co-sharers and there had been no partition amongst themselves, the plaintiff is not entitled to get any relief on the ground of easement of necessity under Section 13 of the Easement Act as the same is available only when a common tenement is partitioned or divided among the tenants and so to get relief on the ground of easement of necessity, two elements must be proved by the one who claims the same and since the plaintiff had not purchased the land from the defendants, or their predecessors, he cannot claim easement of necessity. Moreover, the plaintiff during cross examination admitted that he has a pathway on the north-east corner of his plot, and hence, as he has an alternative pathway, he is not entitled to any relief by way of an order for easement of necessity.
10. Mr Mahbubey Alam, the learned Senior Advocate for the respondent No. 1, on the other hand, contended that the plaintiff's plea for a right of way is based on limitation as well as for necessity to constitute a right of easement and that the Courts below failed to take into account deposition by the plaintiff and other PWs that a pathway had been in existence by the side of  the plaintiff's house for many years even before he purchased the property. He also argued that easement of necessity in not only available when the land has been partitioned between joint owners. He also argued that without the pathway the plaintiff will have no ingress or egress into and from his property. He concluded saying that RAJUK would not have approved building plan without the existence of the pathway.
11. Having gone through the judgments of the Courts below, transcript of evidence, and having analysed the relevant provision of the Easement Act, we are of the view that the High Court Division arrived at an erroneous conclusion.
12. There is little doubt that Section 13 of the Easement Act is applicable only when properties owned jointly are partitioned amongst co-sharers, which is not admittedly the scenario in the instant 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 owner.
13. It is also apparent from the transcript of evidence that the High Court Division has unwarrantedly transgressed into the domain of evidence to open new door on evidence analysis, which, as a revisional Court it cannot ordinarily do, unless analyses of evidence by the Courts of fact are palpably perverse. In this case the trial Court in evaluating the depositions of PWs 1, 2 and 3, who deposed to prove the existence of a pathway, observed that they were not consistent on each other's account and hence, no credence could be placed on their evidence, yet the High Court Division wanted to encroach upon this factual finding of the trial Court, which was unwarranted. Moreover, the trial Court has given cogent reasons for not believing the PWs.
In the light of the above discussion, we find merit in the appeal, which is accordingly allowed, without however, any order as to costs. The impugned judgment is set aside.
(Concluded)

More News For this Category

Notice will be dispensed with if title of the landlord denied

High Court Division :(Civil Appellate Jurisdiction) Sharif Uddin Chaklader JKhizir Ahmed Choudhury J Ramesh Chandra Das and others Appellants      vs Sureshwar Mazumdar and others Respondents    JudgmentJuly 7th, 2015

In case of failure of the borrower, 3rd party mortgage to be auctioned

High Court Division :(Special Original Jurisdiction) JBM Hassan J Md Khairul Alam J  Rupali Bank Limited…..Petitioner vs Judge, Artha Rin Adalat No. 4, DhakaAnd others………………Respondents.JudgmentDecember 13th, 2018Artha Rin Adalat

Code of Civil Procedure

High Court Division :(Civil Revisional Jurisdiction) Md Rezaul Hasan JAzadul Islam and others .............Defendant- Respondent-Petitioners vs Asis Bewa and others ...... Plaintiff-Appellant Opposite Parties Judgment March 7th, 2019 Code of

Cyber Law in Bangladesh

Rajib Kumar Deb :Global economic strength depends not only on strong digital communication infrastructure and hi tech digital technologies but also on state measurements in respect of Cyber law.

Staying Conviction during Pendency of an Appeal

High Court Division :(Criminal Appellate Jurisdiction) M Enayetur Rahim J Md Mostafizur Rahman J AKM Fakhrul Islam……………..Appellant              vs     State ……Respondent November 26th, 2018 Order      Code of

Muslim Family Laws

(From previous issue)8. Mrs Rabeya Bhuiyan, the learned Senior Counsel appearing along with the learned Advocate Mr Mahmood Morshed, and, Mr. Shaleh Akrarn for the opposite parties, submits that

Failure of the principal borrower

High Court Division :(Special Original Jurisdiction) JBM Hassan JMd Khairul Alam JRupali Bank Limited.........PetitionervsJudge, Artha Rin Adalat No.4, Dhaka and others..............RespondentsJudgmentDecember 13th, 2018Artha Rin Adalat Ain (VIII of 2003)

Fugitive from law cannot get legal protection

High Court Division :(Special Original Jurisdiction) Moyeenul Islam Chowdhury J JBM Hassan JYousuf Gazi  (Md)………...………….PetitionerCourt of Sessions Judge, Khulna and Others……….. RespondentsJudgmentMarch 2nd, 2017Constitution of Bangladesh, 1972Article 102(2) It is

State Acquisition & Tenancy Act

Appellate Division :     (Civil)Md Abdul Wahhab Miah J  Md Imman Ali J AHM Shamsuddin Choudhury JHazi Mohammad Abdul Malek…………………Appellant           vs Jamal Hossain and others….…………….RespondentsJudgmentJuly 28th, 2015  State

Quasi Judicial Authority Cannot Set Aside Own Order

High Court Division :(Special Statutory Jurisdiction) Farah Mahbub JSM Maniruzzaman J Commissioner,     Customs, Excise and VAT Commissionerate.....Appellant vsCustoms, Excise and VAT Appellate Tribunal and others. ........Respondents JudgmentMarch 12th, 2019Value