Vs. Md. Zafir Khan & Ors  INSC
1620 (16 December 1996)
Singh B.L. Hansaria Hansaria, J.
appeal arises out of the suit filed by the respondent No.1 in which the main
prayer was to declare that she had acquired easementary right to use the suit
passage for discharge of drain water. The trial court decreed the suit and on
appeal being preferred by the defendants, the same was dismissed. On further
appeal to the High Court, the suit has, however, come to be dismissed only on
the ground that in para 7 of the plaint a statement had been made by the
respondent that "the suit land is existing since 1918 and is part of the
plaintiff's house". The High Court has opined that this statement shows
that the plaintiff was claiming title to the suit land, though the relief
prayed for was not based on title as such. This, according to the High Court,
was the result of artistic drafting of the prayer portion. After placing
reliance on the judgment of this courts in Chapisibhai Dhanjibhai Dand v. Purshottam
(AIR 1971 SC 1878), the High Court came to the conclusion that s the
plaintiff-respondent had failed to establish title, she could not turn round
and claim relief on the basis of easement.
reading of the High Court's judgment shows that it confined its attention only
to the aforesaid averment in the paragraph 7 of the plaint, as to which it was
submitted that the statement might not be read in isolation but may be read
along with other averments in the plant, which show that the relief was really
being sought on the basis of acquisition of easementory right. We have,
however, perused the whole plaint and find that the plaintiff had indeed
claimed title over the lane and, in the alternative, had contended if her title
were not to be accepted, she had in any case acquired easementory right to
discharge the drain water.
perusal of the first appellate judgment shows that the plaintiff did fight for
her title over the land so much so that a Pleader Commissioner was appointed to
find out as to whether the land was part of plot No.650 of plaintiff's land or
appertained to plot No.649 which is part of defendant's land.
Plaintiff's claim for title may not be accepted for reasons which may not be
adverted. But then, the plaintiff's claim for easementory right has been
accepted by the trial court as well as the first appellate court.
question which, therefore, arises is as to whether plaintiff should lose
altogether, even though her claim for easementory right has been found
acceptable, because she also claimed title over the lane. Shri Mukherjee,
appearing for the respondent, urged that the High Court took the correct stand
inasmuch as the suit filed was really non- maintainable. The learned counsel
submitted that though the High Court has not dismissed the suit on this ground,
that indeed is purport of the High Court's judgment. The submission of Shri Sanval
on the other hand was that as ultimately the plaintiff had prayed for right of
easement, she may not lose that right only because in the body of the plaint
some assertions had been made regarding title also.
have duly considered the rival submissions and, according to us, it would not
be just and proper to dismiss the suit on the ground of non-maintainability. No
doubt, plea of non-maintainability is a question of law, but to allow the same
to be raised for the first time in the last court, and that too after the
defendant has lost on merits, does not advance the cause of justices it rather
obstructs the same as plea of maintainability is after all a technical plea and
course of justice should not be allowed to be thwarted on technical grounds.
Keeping in view the totality of the facts and the course which this litigation
has taken though the three courts below, we are of the view that the prayer of
the plaintiff to allow her to discharge drain water over the land in question
is more in accord with justice than to deny it, as it has been found that she
had in fact discharged the drain water through the lane for long many years.
therefore, allow the appeal, set aside the impugned judgment of the High Court
and restore the same of the first appellate court by which it affirmed the
decree of the trial court. In the facts and circumstances of the case we leave
the parties to bear their own costs.