DR. S. KUMAR & ORS.versusS. RAMALINGAM

                        [2019] 10 S.C.R. 531                              531


                      DR. S. KUMAR & ORS.                                 A
                                  v.
                         S. RAMALINGAM
                (Civil Appeal Nos.8628-8629 of 2009)
                            JULY 16, 2019                                 B

      [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
       Transfer of Property Act, 1882 – s. 48 – One CLR was the
owner of big chunk of land on Mowbrays Road in the city of Chennai
– He executed three separate sale deeds – First sale deed was in          C
favour of defendant no.1 in respect of property measuring 3483.66
sq. feet – Another adjoining land was purchased by defendant no.2-
wife of defendant no.1 vide separate sale deed – Plaintiff-
Respondent purchased land measuring 3525 sq. feet – Defendant
no.1’s land abutted Mowbrays Road whereas the land purchased
by defendant no.2 touched the back of defendant no.1’s land –             D
Respondent filed two suits inter alia claiming injunction against the
defendants-appellants from using a pathway shown as A B C D in
the plaint and claiming exclusive right to use the same – Another
suit was filed restraining the defendants from preventing the plaintiff
from using the pathway to reach their land E F G H – Suits dismissed      E
– First Appellate Court allowed the appeal and granted injunction
holding that there is no necessity of easement as the defendant no.2
has access from the property of her husband which is on Mowbrays
Road – High Court upheld the judgment – Held: There are three
separate layout plans on record – First layout plan is of the land
sold to defendant no.1 on December 05, 1973 wherein the adjacent          F
land to the land sold is 12 feet wide strip throughout the length of
the land – Second layout plan is of the land sold to defendant no.2
showing that the same 12 feet wide strip abutting the land is conveyed
to defendant no.2 – Third lay out plan is attached to the land sold
to the plaintiff which is adjacent to the land sold to defendant no. 2    G
– However, schedule shows 16 feet wide strip 103 feet long which
ends with the outer boundary of the plot sold to defendant No. 2 –
Relationship of defendant nos.1 and 2 will not negate the grant of
easement right of passage granted to her in the sale deed only
because the recital is generic in nature and usually put by the deed
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                                 531
532            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


A     writers – 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– s.48 contemplates that where a person i.e. CLR
      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
B
      extent together, then each later created right shall be subject to the
      rights previously created – Since the right of access to defendant
      no.2 was reserved in the sale deed dated April 1, 1976, therefore,
      the vendor could not confer exclusive right to the plaintiff vide sale
      deed dated May 31, 1988 – Plaintiff has to maintain the 16 feet
C     wide passage in any case in terms of the recital in his sale deed –
      Therefore, if the defendant no.2 or her transferees use the passage,
      then such use of passage cannot be said to be causing any prejudice
      to the plaintiff – Judgment of the High Court cannot be sustained –
      16 feet x 103 feet passage adjoining the property of the defendants
      leading to the property of the plaintiff is reserved for the common
D
      use of defendant no.2 and of the plaintiff – Property Law – Easement
      Rights – Indian Easements Act, 1882 – s.41.
             Property Law – Easement Rights – Right of easement
      vis-à-vis right of necessity – Discussed.
E           Allowing the appeals, the Court
            HELD: 1.1 There are three separate lay out plans on
      record. First, when the land was sold to defendant No. 1 on
      December 5, 1973. In the said lay out plan, the adjacent land to
      the land sold is 12 feet wide strip throughout the length of the
F     land. Second lay out plan is of the land sold to defendant No. 2. It
      shows that same 12 feet wide strip abutting the land is conveyed
      to defendant No. 2 on April 1, 1976. Third lay out plan is attached
      to the land sold to the plaintiff vide agreement dated May 13,
      1978 in respect of an area which is adjacent to the land sold to
      defendant No. 2. However, schedule shows 16 feet wide strip
G     103 feet long which ends with the outer boundary of the plot sold
      to defendant No. 2. The relationship of defendant Nos. 1 and 2
      will not negate the grant of easement right of passage granted to
      her in the sale deed only because the recital is generic in nature
      and usually put by the deed writers. Since there is specific
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          DR. S. KUMAR & ORS. v. S. RAMALINGAM                          533


mention of easement rights reserved for defendant No. 2 which           A
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
                                                                        B
May 31, 1988. [Paras 12, 13] [538-G; 539-A-C]
       1.2 Section 48 of the Transfer of Property Act, 1882
contemplates that where a person i.e. ‘CLR’ 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            C
previously created. The exception is if special contract or
reservation binding the earlier transferee is executed. The
exclusive right conferred on the plaintiff in the sale deed dated
May 31, 1988 will not be legal till such time the earlier transferee
i.e. defendant No.2 has a special contract or reservation which         D
binds her. Since the right of access to defendant No.2 was reserved
in the sale deed dated April 1, 1976, therefore, the vendor could
not confer exclusive right to the plaintiff vide sale deed dated
May 31, 1988. [Paras 14, 15] [539-D, F-H]
       1.3 The plaintiff has to maintain the 16 feet wide passage in    E
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. The argument that right of easement stands extinguished
once the easement of necessity comes to an end is not applicable        F
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   G
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

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534            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


A     part of land to defendant No.1 or that after the death of both the
      defendants, the common legal proceedings inherited the
      property.[Paras 16, 17] [540-A-D]
            1.4 The appellants have been granted right to use passage
      in the sale deed. Thus, it is not easement of necessity being
B     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. In view thereof,
      the judgment and decree passed by the High Court suffers from
      manifest error and, thus, cannot be sustained in law. The 16 feet
      x 103 feet passage adjoining the property of the defendants leading
C     to the property of the plaintiff is reserved for the common use of
      defendant No.2 and of the plaintiff. [Paras 18, 19] [540-D-F]
            Hero Vinoth (Minor) v. Seshammal (2006) 5 SCC
            545 : [2006] 2 Suppl. SCR 79 – referred to.

D                            Case Law Reference
            [2006] 2 Suppl. SCR 79         referred to       Para 11


            CIVIL APPELLATE JURISDICTION: Civil Appeal
      Nos 8628-8629 of 2009
E
            From the Judgment and Order dated 06.03.2007 of the High Court
      of Judicature at Madras in Second Appeal Nos.580 and 822 of 1994
            Sreegesh M. K., K. R. Sasiprabhu, Advs. for the Appellants.
           R. Basant, Satyam Reddy, Sr. Advs., Manu Krishnan,
F     A. Radhakrishnan, V. Prabhakar, Ms. Jyoti Parasher, Advs. for the
      Respondent.
            The Judgment of the Court was delivered by
            HEMANT GUPTA, J.
G           1. The defendants are in appeal aggrieved against the judgment
      and decree passed by the High Court of Judicature at Madras on March
      6, 2007, whereby judgment and decree passed by the First Appellate
      Court was not interfered with in the second appeal.

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          DR. S. KUMAR & ORS. v. S. RAMALINGAM                               535
                    [HEMANT GUPTA, J.]

       2. The plaintiff - respondent filed two suits, firstly, OS No. 2251   A
of 1985 claiming an injunction against the defendants from using a
pathway shown as A B C D in the plaint and claiming exclusive right to
use the said path. Another suit OS No. 9158 of 1986 was filed restraining
the defendants from preventing the plaintiff from using the pathway to
reach their land E F G H.
                                                                             B
       3. The learned trial court dismissed the suits on April 22, 1991
holding the defendants have right of necessity of access to their property
over the pathway A B C D in the first suit. However, the First Appellate
Court allowed the appeal on September 16, 1993 and granted injunction
as prayed holding that there is no necessity of easement as the said
defendant has access from the property of her husband which is on            C
Mowbrays Road. The High Court has maintained the judgment and
decree of the First Appellate Court vide judgment dated March 6, 2007.
       4. The facts leading to the present appeal are that one C.L.
Rajasekaran was the owner of big chunk of land on Mowbrays Road in
the city of Chennai. He executed three separate sale deeds on different      D
dates. The first sale deed was executed in favour of defendant No. 1 -
B. Shivaraman on December 5, 1973 in respect of property measuring
3483.66 sq. feet. Another adjoining land was purchased by Lakshmi
Shivaraman, wife of defendant No. 1, vide separate sale deed dated
April 1, 1976, in respect of land measuring 1062 sq. feet. The plaintiff     E
entered into an agreement for purchase of land measuring 3525 sq. feet
with C.L. Rajasekaran on May 13, 1978 but the sale deed was executed
on May 31, 1988 after a decree in a suit for specific performance was
granted.
       5. The sale of land to defendant No. 1 is abutting Mowbrays           F
Road whereas the land purchased by defendant No. 2 is touching back
of land purchased by defendant No. 1. The dispute is in respect of the
passage over which plaintiff claims an exclusive right of use in terms of
the sale deed dated May 31, 1988 whereas defendant No. 2 claims
access to land purchased by her on the strength of recitals in the sale
deed in her favour and also the fact that she has been using such passage    G
from the day of purchase.
       6. Before we advert to the respective arguments raised by learned
counsel for the parties, some factual aspects in respect of the sale deed
are in question. The copy of sale deed dated December 5, 1973 has
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536            SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A     been produced by Mr. Basant, learned senior counsel for the plaintiff.
      The said sale deed recites that piece of land described in the schedule
      attached with the sale deed and marked in the plan and all rights, title
      and interest in the said property together with all ways sewages rights
      easements advantages and all other appurtenances and privileges
      heretofore enjoyed by the vendor stands conveyed to the said defendant.
B
      The layout plan shows that the area of land is 3483.66 sq. feet that is 44
      feet 3 inches x 44 feet. There is a long rectangular strip 12 feet wide in
      the layout plan adjoining to the said land conveyed.
             7. The second sale deed dated April 1, 1976 (Exh. B3) is in respect
      of plot area 1062 sq. feet having similar recitals as in the sale deed
C     (Exh.B1) whereas in the lay out plan in the schedule attached to the sale
      deed, the area marked red in the plan is the area conveyed to the
      defendant No. 2. It is admitted by the parties that the colour in the
      original site plan cannot be made out at this stage but from the document
      attached with the sale deed (Exh. B4), land measuring 44 feet 3 inches
D     x 24 feet was conveyed to defendant No. 2 adjoining rectangular piece
      of land 12 feet wide. The plaintiff purchased land in the same block but
      on the rear side of the land sold to defendant No. 2 vide sale deed dated
      May 31, 1988. The Schedule B of the said sale deed reads as under:
                                   “SCHEDULE ‘B’
E           All that piece and parcel of land bearing a part of Plot 7-A, situate
            at Mowbrays Road, 1st Cross Street, Alwarpet, Madras 600 018,
            bearing R.S. No. 3682 (Part), measuring 56ft. East to West, On
            the Northern Side 57’6’ on the Southern side 66 ft. North to South
            on the Western side and 61 ft. North South on the Eastern Side
F           marked EPGH coloured Red in the plan measuring in all 3525 sq.
            feet together with a pathway having a width of 16 feet East to
            West, and a length of 103 feet North to South marked as ABCD
            in the plan and coloured Green for exclusive use of the purchasers
            bounded on the:

G           ON THE NORTH BY             : House and Site owned by Sivaraman
                                          and Lakshmi Sivaraman


                      xx                     xx                   xx”

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           DR. S. KUMAR & ORS. v. S. RAMALINGAM                                537
                     [HEMANT GUPTA, J.]

       8. Learned counsel for the appellants - defendants refers to the        A
statement of vendor PW-3 C.L. Rajasekaran wherein he stated that he
has divided the property in three parts. He stated that as per sale deed
Exh. A18, he gave exclusive right over the 16 feet passage to the plaintiff
and did not give any right to anyone except him. In cross-examination,
he admitted that he executed a sale deed in favour of one Bharatha
                                                                               B
Reddy in 1983 after leaving 16½ feet passage in between the properties
of Bharatha Reddy and the respondents, now the appellants. The length
of said passage is 106 feet and width 16 feet. He further admitted that
from 1976, the second respondent was using land measuring 16 x 106
feet as her pathway.
       9. On the other hand, learned counsel for the plaintiff refers to the   C
gift deed executed by defendant No. 2 on June 7, 1976 in favour of her
husband in respect of land purchased except 222 sq. feet. Learned
counsel for the plaintiff also refers to the written statement filed by the
defendant No. 1, which written statement was adopted by the defendant
No. 2, to argue that initially there was agreement to purchase four grounds    D
– 1½ ground by defendant No. 1, remaining 2½ ground by defendant
No. 2. The defendant No. 1 purchased 1½ ground vide sale deed dated
December 5, 1973 but due to ceiling problems, the second defendant
purchased only 1½ ground out of 2½ ground. Learned counsel for the
plaintiff refers to the statement of defendant No. 1 who appeared as
DW-1 Shivaraman wherein he deposed that he has purchased plot                  E
measuring 1200 sq. feet in the name of his wife in the year 1976. The
said defendant has admitted that 840 sq. feet of land was settled in his
favour out of land purchased in her name. Thus, the said property was
intended to be used jointly by both the defendants. Since the land of
defendant No. 1 is adjacent to Mowbrays Road, therefore, the defendants        F
have access to the respective portions purchased. Thus, the defendant
No. 2 cannot claim any easement of necessity.
       10. On the basis of such facts, the argument of learned counsel
for the defendants is two-fold:
        Firstly, that the right of way to access property purchased by         G
defendant No. 2 was reserved in the sale deed dated April 1, 1976.
Therefore, the vendor of the defendant No. 2 and plaintiff could not
confer exclusive right of use of passage for the use of the plaintiff.

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538                SUPREME COURT REPORTS                      [2019] 10 S.C.R.


A     Therefore, the exclusive right given to the plaintiff is in contravention of
      Section 48 of the Transfer of Property Act, 1882 and, thus, the seller has
      no saleable interest to confer exclusive right of user to the plaintiff.
               The second argument is that merely because defendant No. 2 is
      the wife of defendant No. 1, will not deprive the said defendant of the
B     right of passage conferred specifically to her in the sale deed. Even
      otherwise, the said defendant has an easement of necessity to approach
      her land. The subsequent transfer in favour of her husband of part of
      the property purchased by her will not deprive the independent right of
      access to such property merely because she happens to be the wife of
      the other defendant. The transferee from defendant No. 2 will retain
C     such right as has been granted to her in the sale deed dated April 1,
      1976. Therefore, keeping in view the principle of easement of necessity,
      the defendant No. 2 has a right to use such passage to access property
      purchased by her by separate sale deed on April 1, 1976 i.e. more than
      two years after the sale in favour of her husband. She continues to be
D     owner of small portion of the land purchased.
             11. On the other hand, Mr. Basant, learned senior counsel for the
      plaintiff argues that the easement can be of three kinds i.e. when it is
      granted specifically or easement of necessity or easement of prescription.
      There is no case set up by the defendants of easement by prescription.
E     There is no easement of necessity in terms of Section 41 of the Indian
      Easements Act, 1882 as such easement of necessity, if any, stands
      extinguished when the necessity comes to an end. Reliance is placed
      upon the judgment in Hero Vinoth (Minor) v. Seshammal1. It is further
      contended that the easement rights for not granted specifically to the
      defendant No. 2 as the recitals in the sale deed are generic in nature
F     usually put by the deed writers so as to confer complete title over the
      land sold to the defendants but that will not include the grant of any
      easement rights to the defendants.
            12. We have heard the learned counsel for the parties at length
      and find merit in the arguments raised by learned counsel for the
G     defendants. There are three separate lay out plans on record. First,
      when the land was sold to defendant No. 1 - B. Shivaraman on December
      5, 1973. In the said lay out plan, the adjacent land to the land sold is 12
      feet wide strip throughout the length of the land. Second lay out plan is
      1
          (2006) 5 SCC 545
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           DR. S. KUMAR & ORS. v. S. RAMALINGAM                                   539
                     [HEMANT GUPTA, J.]

of the land sold to defendant No. 2. It shows that same 12 feet wide              A
strip abutting the land is conveyed to defendant No. 2 on April 1, 1976.
Third lay out plan is attached to the land sold to the plaintiff vide agreement
dated May 13, 1978 in respect of an area which is adjacent to the land
sold to defendant No. 2. However, schedule shows 16 feet wide strip
103 feet long which ends with the outer boundary of the plot sold to
                                                                                  B
defendant No. 2.
       13. The relationship of defendant Nos. 1 and 2 will not negate the
grant of easement right of passage granted to her in the sale deed only
because the recital is generic in nature and usually put by the deed writers.
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            C
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.
      14. Section 48 of the Transfer of Property Act, 1882, relied upon           D
by the learned counsel for the appellants, reads thus:
       “48. Priority of rights created by transfer. – Where a person
       purports to create by transfer at different times rights in or over
       the same immoveable property, and such rights cannot all exist or
       be exercised to their full extent together, each later created right       E
       shall, in the absence of a special contract or reservation binding
       the earlier transferees, be subject to the rights previously created.”
        15. The said provision contemplates that where a person i.e.
Rajasekaran 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      F
full extent together, then each later created right shall be subject to the
rights previously created. The exception is if special contract or
reservation binding the earlier transferee is executed. It will mean that
the exclusive right conferred on the plaintiff in the sale deed dated May
31, 1988 will not be legal till such time the earlier transferee i.e. defendant   G
No. 2 has a special contract or reservation which binds her. Since the
right of access to defendant No. 2 was reserved in the sale deed dated
April 1, 1976, therefore, the vendor could not confer exclusive right to
the plaintiff vide sale deed dated May 31, 1988.

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540             SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A            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.
B            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
C     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
D     defendants, the common legal proceedings inherited the property.
            18 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
E     Easements Act, 1882.
             19.. In view thereof, we find that the judgment and decree passed
      by the High Court suffers from manifest error and, thus, cannot be
      sustained in law. Accordingly, the appeals are allowed. The 16 feet
      x 103 feet passage adjoining the property of the defendants leading to
F     the property of the plaintiff is reserved for the common use of defendant
      No. 2 and of the plaintiff. No costs.


      Divya Pandey                                                   Appeals allowed.


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