Judgment:
1. This appeal has been preferred by the defendants against the judgment and decree of the lower appellate Court by which the judgment and decree of the trial Court dismissing the suit has been reversed and consequently the same is decreed granting the relief of permanent injuction as claimed by the plaintiff.
2. Plaintiffs filed a suit inter alia seeking a relief of permanent injunction restraining the defendants from causing obstruction to the road as shown in the sketch appended to the plaint. It is the case of the plaintiff that there was a 6 feet wide path-way leading from Gurupura Kaikamba to the plaintiffs' house situate in Survey No. 32/19 of Kandavara village running through various properties including Survey No. 129/2 belonging to the 1st defendant and Survey No. 129/3 belonging to the second defendant. His further case is that six years prior to the filing of the suit, the said path-way was widened by the Panchayat up to about two miles converting the same into a pucca road of about 18 feet width. From that point the plaintiffs claim that they, with the help of other residents of the locality broadened the said pathway into a road of about 15 feet width up to the plaintiffs' house in Survey No. 32/19 and this road passed through Survey Nos. 129/1, 129/2, 129/3 and, thereafter, entered the properties in possession of the plaintiffs. This widening was done with the consent of persons who are in possession of the respective properties through which the road passed.
3. It is contended by the plaintiffs that theroad was formed at the very same place where the pathway existed earlier. It is the further case of the plaintiffs that the pathway has been in existence from time immemorial and only the widening of the pathway into a road was done five years ago. It is contended that the defendants who are in possession of Survey Nos. 129/2 and 129/3, had given their consent for the widening of the pathway into a road in their properties. It is contended that ever since the formation of the road, the plaintiffs, their men and other persons residing in the locality have been making use of the road. It is contended that the defendants have no manner of right to cause any obstruction to the road. It is further contended that the defendants have dug trenches of about 1 depth across the road at points A, B and C as shown in the plaint sketch which according to the plaintiff is a high-handed action. The plaintiffs claimed that they have acquired right of user of the pathway over the land of the defendants by prescription and mamool and that the widening of the path into a road was done with grant made by the defendants. It is further case of the plaintiffs that the defendants have no right to cause any obstruction to the plaintiffs' enjoyment of the road and, therefore, the defendants are liable to restore the road to its original condition at points A, B and C shown in the plaint sketch.
4. The trial Court in view of the pleadings of the parties and the evidence led found as a matter of fact that the disputed road was laid for the first time when the plaintiffs started re-construction of the house in Survey No. 32/19 and as such formation of the new road was with a specific permission given by the defendants 1 and 2 and with the understanding that the road will be closed immediately after the construction of the house was complete. Accordingly, the trial Court held that the defendants by digging trenches across the road in their own land have not in any way interfered with the legal rights of the plaintiffs and dismissed the suit.
5. The lower appellate Court agreed with the findings of the trial Court that the plaintiffs have failed to prove their prescriptive right over the road in question, but hasstrangely reversed the judgment of the trial Court and decreed the suit by accepting the contentions advanced on behalf of the plaintiffs based on Section 60 of the Indian Easements Act, 1882 ('the Act' for short). The lower appellate Court without trying to ascertain whether there were necessary pleadings and evidence for grant of a relief based on Section 60 of the Act, has passed a laconic order in this respect by merely stating that he agrees with the contention of the counsel for the plaintiffs as is evident from paragraph No, 15 of the impugned judgment. The contention advanced on behalf of the plaintiff before the lower appellate Court was to the following effect :--
'Sri M. B. Muliya, the learned counsel for the plaintiffs-appellants has put forward an alternative contention before me in the course of argument that it is the case of the defendants that in the year 1975, when the plaintiffs reconstructed their house, they obtained consent of the defendants for formation of a new road through Survey Nos. 129/2 and 129/3 for taking building materials from Kandavara Panchayat road to the site of construction. This case has been accepted by the trial Court also. Sri M. B. Muliya submits that the work of construction of a road is of a permanent nature which cannot be executed without investment of considerable amount of money and if such a work of permanent nature is carried out with the licence granted by the defendants, S. 60 of the Easements Act prohibits the defendants to turn round and cancel such a licence and prevent the plaintiffs' making use of such road.'
6. Learned counsel for the defendants by referring to the pleadings of the parties and the evidence on record, has submitted that the plaintiffs have nowhere made out any case for seeking a relief in terms of Section 60 of the Act, nor has he proved the necessary facts entitling such a relief, and, therefore, the Court below has erred in decreeing the suit. On the other hand, Mr. Acharya, learned Senior Counsel appearing for the plaintiffs has submitted that if the pleadings of the parties and the evidence led are read in their proper perspective, it could be found that theyare sufficient enough for grant of relief in terms of Section 60 of the Act. By relying on the judgment of the Supreme Court in the case of (sic) he has further submitted that the technical pleas based on the absence of express pleadings should not overweigh the cause of justice, and that this has to be based on controversies appearing between the contesting parties.
7. Sections 52 and 60 of the Act reads as under :
'52. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence,'
'60. A licence may be revoked by the grantor, unless :--
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.'
From the above definition of 'licence' it is clear that a right amountig to easement cannot be termed as licence. The right defined as licence has always to be short of casement.
8. An 'easement' has been defined under Section 4 of the Act to mean a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. The Illustration (a) as given under that Section reads as under :
'(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement.'
From the above definition of easement read with Illustration (a) as noticed above, it isquite clear that a right of way over other's land is an easement.
9. In the present case, even according to the plaintiffs, defendants had consented to permit them to use their land for having a way to their house. The purpose of permitting the construction of road over the land in question was dominantly for the purpose of using the same as a way for beneficial enjoyment of the plaintiffs' property. Therefore, the right conferred on the plaintiffs was in the nature of easement, which did not become to be absolute having been perfected by a statutory prescription. Therefore, in respect of the said right they cannot be considered as licensees. This reason by itself is enough for negativing the plea based on Section 60(b) of the Act.
10. Apart from the reason as aforesaid, the issue as to whether the work executed pursuant to the alleged licence is of permanent character or not and what expenses were incurred in execution thereof are the issues purely of facts. These were required to be expressly pleaded and without proof of such facts with due notice to the contesting parties to controvert the same no relief could have been granted on the plea of such nature raised for the first time at the appeal stage. In the present case, neither in the plaint there is any averment on the said factual aspects nor any evidence has been led by the plaintiffs to prove the same. Mr. Acharya by referring to some stray statements impliedly touching upon the ingredients of Section 60(b) of the Act, has sought to submit that even if the Court below has not considered the relevant pleadings and the evidence in this regard while decreeing the suit on the said basis, the case should be remanded for recording a finding after adverting to the relevant materials. As noticed above, all his contentions are based on the judgment of the Supreme Court in the case of Bhagwati Prasad (supra).
11. In the case of Bhagwati Prasad (supra) it has been held by the Supreme Court in paragraph No. 9 of its judgment as follows :
'9. There can be no doubt that if a partyasks for a relief on a clear and specific ground, and in the issues or at the trial, no otherground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court in Sheodhari Rai v. Suraj Prasad Singh, : AIR1954SC758 . '
Their Lordships have further held in paragraph No. 10 of the said judgment thus :
'10. ..... The general rule no doubt is thatthe relief should be found on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.'
12. In view of the law laid down by the Supreme Court as noticed above, the desired relief can be granted provided that the plea not expressly taken is satisfactorily proved by evidence, and further that the parties knew that the said plea was involved in the trial so that the right to participate in the trial effectively and fairly is not prejudicially affected. In the present case, as stated above, neither in the plaint nor in the evidence there was any whisper regarding the essential facts pertaining to the plea based on Sec. 60(b) of the Act nor was there any issue framed in this regard, and therefore, the defendants had no occasion to incorporate specific pleas and adduce evidence to repudiate the said pleas. Therefore, remanding of the case for record-ing any finding in this regard will not only be futile but also will act to the great prejudice of the defendants.
13. Keeping in view the reasons as set out above, in my opinion, the lower appellate Court has miserably misdirected itself in reversing the judgment and decree of the trial Court. Accordingly, the impugned judgment and decree is set aside and that of the trial Court is restored with costs all through.
14. Order accordingly.