http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2

PETITIONER:

UMRAH KHATOON

Vs.

RESPONDENT:

MD. ZAFIR KHAN & ORS.

DATE OF JUDGMENT: 16/12/1996

BENCH:

N.P. SINGH B.L. HANSARIA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

HANSARIA, J.

This 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.

2. A 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.

3. A 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.

4. Plaintiff's claim for title may not be accepted for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2

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.

5. The 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.

6. We 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.

7. 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.

8. We, 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.