Property Lawyer: The easmentary right of way on the adjoining land cannot be extinguished when it had been granted vide the sale deed; SC.
- 15:40Supreme Court of India
Justice Hemant Gupta and Justice L Nageswara Rao
The SC {Dr. S. Kumar and others versus S. Ramalingam} was in seisin of the issue i.e. when the land has been sold earlier by the vendor with a right to access through the adjoining land to the defendant, then, whether the same vendor can exclusively reserve the said access vide subsequent sale deed in favour of the purchaser (plaintiff) of adjoining land?
The SC while allowing the appeal and setting aside the Judgment of the High Court has answered the aforesaid question in negative. It holds since there is specific mention of easement rights reserved for defendant No. 2 which recital is supported by a strip of land 16 feet wide which provides access to the plot of land purchased by defendants and also to the plaintiff. Once the land has been sold with the right of access through the land adjoining the property sold, such right could not be exclusively conferred to the plaintiff in the sale deed dated May 31, 1988.
It was further held that Sec 48 of Transfer of Property Act,1882 contemplates that where the vendor has created different rights in or over the same property i.e. 16 feet wide strip of land and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created i.e. right created in favour of the plaintiff shall be subject to earlier right of easement created in favour of the defendant no. 2 - right of easement on the adjoining land by a strip of land 16 feet wide which provide access to the land of defendant no. 2.
It was further held:
"16. The plaintiff has to maintain the 16 feet wide passage in any case in terms of the recital in his sale deed dated May 31, 1988. Therefore, if the defendant No. 2 or her transferees use the passage, then such use of passage by defendant No. 2 or her transferees cannot be said to be causing any prejudice to the plaintiff.
17. The argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case. The argument is based on the fact that right, title and interest of both the defendants now stand merged in one person after the death of both the defendants. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because the defendant No. 2 has gifted part of land to defendant No. 1 or that after the death of both the defendants, the common legal proceedings inherited the property.
19. The appellants have been granted right to use passage in the sale deed. Thus, it is not easement of necessity being claimed by the appellants. It is right granted to defendant No. 2 in the sale deed, therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act, 1882."
Finally the Judgment of the HC was set aside and the said common passage was reserved for use by the SC, both by the defendants and the plaintiff.