DR. S. KUMAR vs RAMALINGAM CA 8628/09 16/07/19 [ (Justice L. Nageswara Rao) & (Justice Hemant Gupta)]

[ SUPREME COURT OF INDIA ]

• Transfer of Property Act, Section 48 Easements Act, Section 41 Easmentary Right Where a person has created different rights in or over the same property and such rights cannot be exercised to their 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 will not be legal till such time the earlier transferee has a special contract or reservation which binds her. Since the right of access to defendant No. 2 was reserved in the sale deed, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed – Plaintiff has to maintain the property 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 by defendant No. 2 or her transferees cannot be said to be causing any prejudice to the plaintiff – 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 – 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 – 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 High Court suffers from manifest error and, thus, cannot be sustained in law Appeal allowed.

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DR. S. KUMAR & ORS. Vs RAMALINGAM_Judgement_16-Jul-2019 SUPREME COURT
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