Owners Can Claim Easement Of Necessity
(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.