MANISHA MAHENDRA GALA & ORS.versusSHALINI BHAGWAN AVATRAMANI & ORS.

                 [2024] 4 S.C.R. 357 : 2024 INSC 293

                   Manisha Mahendra Gala & Ors.
                                v.
                 Shalini Bhagwan Avatramani & Ors.
                      (Civil Appeal No. 9642 of 2010)
                                 10 April 2024
           [Pankaj Mithal* and Prashant Kumar Mishra, JJ.]

                           Issue for Consideration
       Appellants if had easementary right of the way over the land owned
       by the respondents i.e. the disputed rasta. Appellants’ reliance
       upon the evidence of their Power of Attorney holder/Manager of
       the property (PW-1) to prove their easementary right of way over
       the disputed rasta, if proper.

                                  Headnotes
       Easements Act, 1882 – ss.4, 13, 15 – “Easementary right” –
       Easementary right by prescription or necessity – When not
       proved:
       Held: ‘Easement’ u/s.4 is a right which the owner or occupier of
       a land possesses for the beneficial enjoyment of his land on the
       other land which is not owned by him, to do and continue to do
       something or to prevent and continue to prevent something being
       done on the said land – In the present case, the Appellants are
       admittedly the owners of Survey No. 48 Hissa No.15 whereas
       the respondents are the owners of Survey No.57 Hissa No.13A/1
       on which the rasta in dispute allegedly exists – Appellants
       claimed that the use of the aforesaid rasta was for the beneficial
       enjoyment of their land as they had no other way of access to
       their land and that they had been enjoying the said easementary
       right for the “last many years” – s.15 provides that for acquiring
       any easementary right by prescription, the said right must have
       been peaceably enjoyed in respect of the servient heritage (the
       land on which the easement is claimed) without any interruption
       for over 20 years – However, neither the original plaintiff nor the
       Appellants specifically claimed that they or their predecessor-
       in-interest were enjoying easementary right of use of the said
       rasta for over 20 years – The term “last many years” is not
       sufficient to mean that they have been enjoying the same for the

* Author
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       last 20 years – Therefore, their pleadings fall short of meeting
       the legal requirement of acquiring easementary right through
       prescription – No evidence to prove that the Appellants were in
       use of the said land for the last over 20 years uninterruptedly
       – They entered the scene only on purchasing the said land on
       17.09.1994 after the suit was filed and as such, they could not
       and have not deposed anything about the pre-existing right or
       the easementary right attached with the Dominant Heritage (the
       land which is to be enjoyed by the beneficiary) – The said right
       has to be proved as existing prior to the institution of the suit –
       Neither the Appellants nor their predecessor-in-interest came in
       the witness box – They only relied upon the deposition of their
       Power of Attorney holder/the Manager who was not having any
       authority to act as their Power of Attorney at the time his statement
       was recorded – He was granted Power of Attorney subsequently
       – Further, in the absence of any evidence or material to show
       that original plaintiff had actually acquired any easementary
       right over the rasta in dispute before the institution of the suit,
       he could not have transferred any such right in favour of the
       Appellants – Furthermore, there is an alternative way to access
       the Dominant Heritage, may be a little far away or longer which
       demolishes the easement of necessity u/s.13 – Appellants not
       entitled to any easementary right by necessity either upon the
       disputed rasta – Thus, they have not acquired easementary right
       over the disputed rasta in any manner much less by prescription,
       necessity or under an agreement– Appellate courts and High
       Court right in dismissing the Suit of the plaintiffs/appellants and
       in decreeing the Suit of the defendants/respondents. [Paras 19,
       21, 22, 27, 29, 31-33, 40]
       Power of Attorney holder – Appellants relied upon the evidence
       of their Power of Attorney holder/Manager of the property (PW-
       1) to prove their easementary right of way over the disputed
       rasta – Propriety:
       Held: Power of Attorney holder can only depose about the facts
       within his personal knowledge and not about those facts which are
       not within his knowledge or are within the personal knowledge of
       the person who he represents or about the facts that may have
       transpired much before he entered the scene – PW-1, the Power
       of Attorney holder deposed that he was giving evidence on behalf
       of plaintiff Nos. 2 to 4 i.e. the Appellants – He was not having
[2024] 4 S.C.R.                                                            359

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


     any authority to act as the Power of Attorney of the Appellants at
     the time his statement was recorded – He was granted Power of
     Attorney subsequently as accepted by the parties – Therefore, his
     evidence was completely meaningless to establish that Appellants
     have acquired or perfected any easementary right over the disputed
     rasta in 1994 when the suit was instituted. [Para 29]
     Pleadings – Consideration of:
     Held: Pleadings should be liberally construed and need not contain
     the exact language used in the statutory provision but it does not
     mean that the pleadings even if fails to plead the essential legal
     requirement for establishing a right, the same be so construed
     so as to impliedly include what actually has not been pleaded
     more particularly when it happens to be an essential ingredient
     for establishing a right – In the present case, the pleadings of the
     plaintiffs/appellants fall short of meeting the legal requirement of
     acquiring easementary right through prescription and cannot be
     treated to be of sufficient compliance of the statutory requirement
     – A fact which is not specifically pleaded cannot be proved by
     evidence as evidence cannot travel beyond the pleadings. [Para
     23]
     Easementary right – Claimed under the Sale Deed – Propriety
     – Appellants claimed that they acquired easementary right
     under the Sale Deed dated 17.09.1994 (photocopy produced)
     and that it would not stand extinguished even if the necessity
     has ceased to exist:
     Held: Property owned and possessed by the Appellants was
     originally the property of one ‘RB’ which was acquired by the
     government – It was purchased by ‘WF’ in public auction from the
     government – Thereafter, it devolved upon his legal heir ‘JWR’
     who sold it to the predecessor-in-interest of the Appellants vide
     Sale Deed dated 17.09.1994 – There is no evidence on record to
     establish that the government ever transferred any easementary
     right over the rasta in question to ‘WF’ or that his legal heir
     ‘JWR’ ever acquired or perfected any easementary right over it –
     Therefore, the right which was not possessed by them could not
     have been transferred to the Appellants under the Sale Deed dated
     17.09.1994 – Further, the said Sale Deed dated 17.09.1994 in
     original was not produced in evidence – It was only the photocopy
     of the same which was brought on record – Photocopy of a
     document is inadmissible in evidence – Moreover, the said sale
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       deed was executed by predecessor-in-interest i.e. ‘JWR’ in favour
       of predecessor-in-interest of the present appellants – The said sale
       deed would not bind the third parties who are not signatories or
       parties to the said sale deed – No evidence adduced to prove that
       ‘JWR’, predecessor-in-interest of the Appellants, had perfected
       easementary rights over the disputed rasta and thus was legally
       entitled to transfer the same. [Paras 35, 36]
       Code of Civil Procedure, 1908 – s.107 – Powers of the appellate
       court in disturbing the findings recorded by the court of first
       instance:
       Held: First appellate court is empowered to exercise powers
       and to perform nearly the same duties as of the courts of
       original jurisdiction – Therefore, the first appellate court has the
       power to return findings of fact and law both and in so returning
       the finding, it can impliedly overturn the findings of the court
       of first instance if it is against the evidence on record or is
       otherwise based upon incorrect interpretation of any document
       or misconstruction of any evidence adduced before the court
       of first instance. [Para 39]

                                Case Law Cited
            Dr. S. Kumar & Ors. v. S. Ramalingam [2019] 10 SCR
            531 : (2020) 16 SCC 553 – held inapplicable.
            Ram Sarup Gupta (Dead) By Lrs. v. Bishun Narain Inter
            College & Ors. [1987] 2 SCR 805 : (1987) 2 SCC 555;
            Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. [2004]
            Suppl. 6 SCR 681 : (2005) 2 SCC 217; A.C Narayan
            v. State of Maharashtra [2013] 11 SCR 80 : (2014) 11
            SCC 790 – referred to.

                                  List of Acts
       Easements Act, 1882; Code of Civil Procedure, 1908.

                               List of Keywords
       Easement; Easementary right; Right of the way; Power of Attorney
       holder; Facts within his personal knowledge; Easementary right by
       prescription or necessity; Last many years; Pleadings; Evidence
       cannot travel beyond the pleadings; Dominant Heritage; Servient
       heritage; Sale Deed; Photocopy of a document inadmissible in
       evidence; Powers of the appellate court.
[2024] 4 S.C.R.                                                          361

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.9642 of 2010
     From the Judgment and Order dated 01.10.2009 of the High Court
     of Judicature at Bombay in SA No. 369 of 2009
     With
     Civil Appeal No. 9643 of 2010
                         Appearances for Parties
     Huzefa Ahmadi, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, Ankur
     Saigal, Shashwat Singh, Ms. Vidisha Swarup, Ms. Vidisha Swrup,
     E. C. Agrawala, Advs. for the Appellants.
     Devansh Anoop Mohta, Shishir Deshpande, Amit Yadav, Nilakanta
     Nayak, Kaushal Narayan Mishra,Ms. Sujata Kurdukar, Advs. for the
     Respondents.
                Judgment / Order of the Supreme Court

                                Judgment
     Pankaj Mithal, J.
1.   The dispute in the above two appeals is in connection with
     easementary rights over 20ft. wide road situated over land Survey
     No.57 Hissa No.13A/1 which is presently owned by the respondents
     herein (hereinafter the ‘Ramani’s’).
2.   In Suit No.14 of 1994 instituted by Joki Woler Ruzer, the descendants
     of the subsequent purchaser Mahendra Gala were added as plaintiff
     Nos.2-4 (hereinafter the ‘Gala’s’). The suit was for declaration of their
     easementary rights over the 20ft. wide road situate in the property
     of the Ramani’s and for permanent injunction in respect thereof. The
     suit was decreed by the court of first instance vide judgment and
     order dated 06.02.2003. However, the aforesaid judgment and decree
     was set aside in appeal by the Ad-hoc District Judge-2, Raigad, vide
     judgment and order dated 12.03.2009 and the suit was dismissed.
     The High Court vide impugned judgment and order dated 01.10.2009
     upheld the aforesaid judgment and order of the appellate court in
     Second Appeal No.305 of 2009.
3.   Apart from the above suit, Suit No.7 of 1996 came to be filed by
     the Ramani’s for declaring that the Gala’s or their predecessor-in-
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       interest have no right, title and interest in the property and they do
       not have any right of way through the above land. The aforesaid
       suit was dismissed vide judgment and order dated 06.02.2003 by
       the court of first instance i.e. Civil Judge, Junior Division, Murud.
       On the appeal being preferred, the judgment and order passed by
       the court of first instance was set aside and the suit was decreed
       holding that the Gala’s have no right of way either by easement of
       prescription or of necessity on the suit land/road. The Gala’s were
       restrained from disturbing the possession of Ramani’s over the suit
       land and from doing any overt act over it.
4.     Aggrieved by the dismissal of their Suit No.14 of 1994 and the
       decreeing of the Suit No.7 of 1996 of the Ramani’s, these two appeals
       have been preferred by the Gala’s. Their predecessor-in-interest
       Joki Woler Ruzer has not joined and has not preferred any separate
       appeal. Meaning thereby, that the original plaintiff has accepted the
       verdict of the High Court.
5.     It would be necessary and beneficial to recapitulate certain background
       before considering the submissions of the respective parties to arrive
       at any conclusion with regard to their rights over the suit land, more
       particularly on the road in question.
6.     There is no dispute that one Ramchandra Borkar was the owner of
       the vast land situate in Mouje Korlai, Taluka Murud, District Raigad,
       Maharashtra i.e. Survey No.48 Hissa No.15 and Survey No.57
       Hissa No.13. The aforesaid Ramchandra Borkar fell into arrears
       of government dues recoverable as arrears of land revenue and,
       therefore, his aforesaid properties were acquired by the government.
       Subsequently, a part of the aforesaid property i.e. land Survey No.48
       Hissa No.15 was sold out by the government on 25.04.1969 through
       public auction in favour of one Woler Francis who was also put in
       possession thereof on 08.07.1969. Thus, Woler Francis became the
       exclusive owner in possession of land Survey No.48 Hissa No.15
       admeasuring 1 hectare and 76 acres situated at Mouje Korlai Taluka,
       Murud, District Raigad.
7.     The remaining land which was initially possessed by Ramchandra
       Borkar and which was acquired by the government, was subsequently
       re-acquired by one Vasant Ramchandra Borkar, of the family of original
       owner Ramchandra Borkar. The said Vasant Ramchandra Borkar sold
       out a piece of the said land on 09.07.1988 to one Dharmadhikari
[2024] 4 S.C.R.                                                     363

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


     being land Survey No.57 Hissa No.13A/2. The balance land which
     was essentially a part of Survey No.57 was sold to the family of
     Ramani’s by a registered Sale Deed dated 11.09.1989 and was
     numbered as Survey No. 57 Hissa No. 13A/1.
8.   In this way, the entire property of the Borkar family comprising of
     Survey No.48 Hissa No.15 and Survey No.57 Hissa No.13 which was
     acquired by the government came into the hands of Woler Francis
     (Survey No.48 Hissa No.15); the family of Ramani’s (Survey No.57
     Hissa No.13A/1); and the family of Dharmadhikari (Survey No.57
     Hissa No.13A/2).
9.   The road in dispute on which easementary rights are claimed by the
     Gala’s forms part of Survey No.57 Hissa No.13A/1 which is under
     the ownership of the Ramani’s.
10. Sometime in 1994, Woler Francis died and he was succeeded by
    his heir and legal representative Joki Woler Ruzer. When his use of
    the above 20ft. wide road was objected to by the Ramani’s, he filed
    Suit No.14 of 1994 for declaration of his easementary rights over
    the said land and for a decree of permanent injunction. During the
    pendency of the said suit, the aforesaid Joki Woler Ruzer transferred
    and assigned his rights of the entire land i.e. Survey No.48 Hissa
    No.15 in favour of one Mahendra Gala, the predecessor-in-interest
    of the Gala’s. The aforesaid Mahendra Gala was impleaded as
    plaintiff in the aforesaid suit on 28.07.1998 and subsequently on
    his death, the present Gala’s were substituted as his heir and legal
    representative.
11. The suit was contested by the Ramani’s by filing a written statement.
    They resisted the claim of the Gala’s regarding easementary rights
    over the disputed rasta. They contended that they have purchased
    the property Survey No.57 Hissa No.13A/1 and categorically denied
    use of the said rasta uninterruptedly by the Gala’s.
12. In the said suit, oral and documentary evidence were adduced by
    the parties. The Gala’s produced Navneet Liladhar Hariya, their
    Power of Attorney holder and the Manager of the property as PW-1,
    Bhalchandra Nathura Choradhekar, Sarpanch of the village as PW-
    2, Dattatray Shankar Sawant, one of their neighbours as PW-3 and
    Bhalchandra Dattaram Tandel, Surveyor as PW-4, in order to prove
    their easementary right of way over the disputed rasta.
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13. The Gala’s also relied upon the sale deed by which Joki Woler Ruzer
    had transferred and assigned his rights in land Survey No.48 Hissa
    No.15 in favour of Mahendra Gala, the predecessor of the Gala’s.
14. The Ramani’s examined Sanjay Borkar as DW-1 and filed certified
    copy of the deposition of one Arjun Ramani. Additionally, they brought
    on record purshis Exh.165 and Exh.170.
15. On the basis of the pleadings of the parties and the evidence
    adduced, the trial court framed several issues but the primary issue
    was whether the Gala’s have any easementary right of way over the
    land of the Ramani’s i.e., the disputed rasta.
16. We had heard Shri Huzefa Ahmadi, learned senior counsel for the
    appellants and Shri Devansh Anoop Mohta, learned counsel for the
    respondents.
17. The main thrust of the argument of Shri Huzefa Ahmadi, learned
    senior counsel for the Gala’s (appellants in both the civil appeals)
    is that Gala’s are undisputedly the owners in possession of the land
    Survey No.48 Hissa No.15 and since they have no alternative way of
    access to the said land except the rasta in dispute, the only option to
    them is to have egress and ingress through the said rasta for use of
    their land. They have acquired easementary right by prescription and
    that of necessity over the said rasta and more particularly through
    an agreement i.e. the Sale Deed dated 17.09.1994 which records
    their right of way through the said rasta. He further submits that once
    the suit was decreed by the court of first instance and findings were
    recorded in favour of the Gala’s, the appellate court ought not to
    have overturned those findings. It ought to have exercised restrain
    in interfering with the aforesaid decision.
18. The above submissions were stoutly opposed on behalf of the
    Ramani’s by their counsel.
19. ‘Easement’ is defined under Section 4 of the Indian Easements
    Act, 18821 to mean a right which the owner or occupier of a land
    possesses for the beneficial enjoyment of his land on the other land
    which is not owned by him, to do and continue to do something or to
    prevent and continue to prevent something being done on the said



1   Hereinafter referred to as “The Act”, for short
[2024] 4 S.C.R.                                                            365

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


     land. It may be pertinent to mention here that the land which is to
     be enjoyed by the beneficiary is called ‘Dominant Heritage’ and the
     land on which the easement is claimed is called ‘Servient Heritage’.
     The easementary right, therefore, is essentially a right claimed by
     the owner of a land upon another land owned by someone else so
     that he may enjoy his property in the most beneficial manner.
20. Now, we first proceed to examine if the Gala’s have acquired any
    easementary right over the rasta in dispute existing on the servient
    heritage.
21. In the case at hand, the Gala’s are admittedly the owners of Survey
    No. 48 Hissa No.15 whereas the Ramani’s are the owners of Survey
    No.57 Hissa No.13A/1 on which it is alleged, exists the rasta in
    dispute. The Gala’s claim that the use of the aforesaid rasta is for
    the beneficial enjoyment of their land as they have no other way
    of access to their land and that they have been enjoying the said
    easementary right for the “last many years”.
22. Section 15 of the Act categorically provides that for acquiring any
    easementary right by prescription, the said right must have been
    peaceably enjoyed in respect of the servient heritage without any
    interruption for over 20 years. In the plaint, neither the original plaintiff
    Joki Woler Ruzer nor the Gala’s have specifically claimed that they
    or their predecessor-in-interest were enjoying easementary right of
    use of the said rasta for over 20 years. They simply alleged that they
    have been using and managing the same since “last many years”.
    The use of the term “last many years” is not sufficient to mean that
    they have been enjoying the same for the last 20 years. Last many
    years would indicate use of the said rasta for more than a year prior
    to the suit or for some years but certainly would not mean a period
    of 20 or more years. Therefore, their pleadings fall short of meeting
    out the legal requirement of acquiring easementary right through
    prescription.
23. In this connection Shri Ahmadi, learned counsel for the appellants,
    relying upon “Ram Sarup Gupta (Dead) By Lrs. vs. Bishun Narain
    Inter College & Ors”2 submitted that the pleadings must be construed
    liberally and it is not necessary that the precise language or expression


2   [1987] 2 SCR 805 : (1987) 2 SCC 555
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       used in the statute should be used. The aforesaid decision lays down
       that pleadings should be liberally construed and need not contain the
       exact language used in the statutory provision but it does not mean
       that the pleadings even if fails to plead the essential legal requirement
       for establishing a right, the same be so construed so as to impliedly
       include what actually has not been pleaded more particularly when
       it happens to be an essential ingredient for establishing a right.
       Thus, the aforesaid pleadings cannot be treated to be of sufficient
       compliance of the statutory requirement. It is settled in law that a
       fact which is not specifically pleaded cannot be proved by evidence
       as evidence cannot travel beyond the pleadings.
24. The plaint was filed and verified by Joki Woler Ruzer who has not
    entered the witness box to substantiate the pleadings as to for how
    long he or his predecessor had been using the said rasta for egress
    and ingress to their land before the institution of the suit or to say
    that the easementary right, if any, attached to the said land, was
    also transferred or purchased by his predecessor.
25. On the contrary, the deposition of Sanjay Borkar (DW-1) who is from
    the family of the original owners of the land has categorically stated
    that the original plaintiff Joki Woler Ruzer was not having any right
    of way on his land and so also the Gala’s (plaintiff Nos.2-4), the
    subsequent holders of the land, rather they possess an alternative
    way to approach their land.
26. Navneet Liladhar Hariya (PW-1), the Power of Attorney holder of
    the Gala’s, stated that the road of 20ft. in width exists on Survey
    No.57 Hissa No.13A/1 which is being used as an approach road
    to Survey No.48 Hissa No.15. The said rasta was being used by
    predecessor-in-interest of the Gala’s but now the Ramani’s have
    started raising objection. Since they have no other way of access
    to their land, they are being denied connectivity or approach to their
    land. As a result, access to the Dominant Heritage stands completely
    blocked. In cross-examination, he states that Dharmadhikari has also
    purchased some land from Vasant Ramchandra Borkar and that the
    said Dharmadhikari is having right of way through the disputed rasta.
    PW-2, the then Sarpanch simply deposes that he has knowledge of
    the existence of disputed rasta since his childhood. The neighbour
    (PW-3) also repeated the same thing and stated that there is a road
    from Salav-Murud road which passes through the land of the Ramani’s
[2024] 4 S.C.R.                                                        367

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


     up to his land i.e. Survey No.43. The said road is in existence since
     long and is being used by the agriculturist. Nobody has ever raised
     objection to its use. The Surveyor (PW-4) is alleged to have surveyed
     the land on 26.12.1998. He had shown the existence of the road in
     dispute in the sketch map prepared by him.
27. The aforesaid evidence simply proves that there exists a road
    on Survey No.57 Hissa No.13A/1 for long but that by itself is not
    sufficient to prove that the Gala’s have acquired any easementary
    right over the same. There is no evidence to prove that the Gala’s
    are in use of the said land for the last over 20 years uninterruptedly.
    The Gala’s have entered the scene only on purchasing the said land
    on 17.09.1994 after the suit had been filed and as such, they could
    not and have not deposed anything about the pre-existing right or
    the easementary right attached with the Dominant Heritage. The
    said right has to be proved as existing prior to the institution of the
    suit. Neither the Gala’s nor their predecessor-in-interest Joki Woler
    Ruzer have dared to come in the witness box. They have only relied
    upon the deposition of their Power of Attorney holder/the Manager.
28. The law as understood earlier was that a General Power of Attorney
    holder though can appear, plead and act on behalf of a party he
    represents but he cannot become a witness on behalf of the party
    represented by him as no one can delegate his power to appear in
    the witness box to another party. However, subsequently in Janki
    Vashdeo Bhojwani vs. IndusInd Bank Ltd.3, this Court held that
    the Power of Attorney holder can maintain a plaint on behalf of the
    person he represents provided he has personal knowledge of the
    transaction in question. It was opined that the Power of Attorney
    holder or the legal representative should have knowledge about the
    transaction in question so as to bring on record the truth in relation
    to the grievance or the offence. However, to resolve the controversy
    with regard to the powers of the General Power of Attorney holder
    to depose on behalf of the person he represents, this Court upon
    consideration of all previous relevant decisions on the aspect including
    that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State
    of Maharashtra4 concluded by upholding the principle of law laid


3   [2004] Suppl..6 SCR 681 : (2005) 2 SCC 217
4   [2013] 11 SCR 80 : (2014) 11 SCC 790
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       down in Janki Vashdeo Bhojwani (supra) and clarified that Power
       of Attorney holder can depose and verify on oath before the court
       but he must have witnessed the transaction as an agent and must
       have due knowledge about it. The Power of Attorney holder who
       has no knowledge regarding the transaction cannot be examined
       as a witness. The functions of the General Power of Attorney holder
       cannot be delegated to any other person without there being a specific
       clause permitting such delegation in the Power of Attorney; meaning
       thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can only
    depose about the facts within his personal knowledge and not about
    those facts which are not within his knowledge or are within the
    personal knowledge of the person who he represents or about the
    facts that may have transpired much before he entered the scene.
    The aforesaid Power of Attorney holder PW-1 had clearly deposed
    that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the
    Gala’s. He was not having any authority to act as the Power of
    Attorney of the Gala’s at the time his statement was recorded. He was
    granted Power of Attorney subsequently as submitted and accepted
    by the parties. Therefore, his evidence is completely meaningless to
    establish that Gala’s have acquired or perfected any easementary
    right over the disputed rasta in 1994 when the suit was instituted.
30. The only proper and valuable evidence in this regard could have been
    that of Joki Woler Ruzer who had instituted the suit but he failed to
    depose before the court. His pleadings are also vague and do not
    specifically state that he had been in use of the rasta in dispute for
    over 20 years or that he had acquired and perfected easementary
    right over the said rasta by prescription or necessity.
31. In the absence of any evidence or material to show that Joki Woler
    Ruzer had actually acquired any easementary right over the rasta in
    dispute before the institution of the suit, he could not have transferred
    any such right in favour of the Gala’s.
32. The easementary right by necessity could be acquired only in
    accordance with Section 13 of the Act which provides that such
    easementary right would arise if it is necessary for enjoying the
    Dominant Heritage. In the instant case, findings have been returned
    not only by the appellate courts but even by the trial court that there
    is an alternative way to access the Dominant Heritage, which may
[2024] 4 S.C.R.                                                        369

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


     be a little far away or longer which demolishes the easement of
     necessity. There is no justification to go into those findings of fact
     returned by the courts below.
33. In the light of the aforesaid findings, the Gala’s are not entitled to
    any easementary right by necessity upon the disputed rasta.
34. The next contention is that the Gala’s have acquired easementary
    right under the Sale Deed dated 17.09.1994 and that it would not
    stand extinguished even if the necessity has ceased to exist. To
    buttress the above submission reliance has been placed upon Dr.
    S. Kumar & Ors. vs. S. Ramalingam5. In the above case, the right
    of easement claimed was expressly granted under the sale deed to
    the buyer and therefore it was held that the right so granted cannot
    be defeated or extinguished merely for the reason that easement
    of necessity has come to an end.
35. The situation in the present case is quite different. The property
    owned and possessed by the Gala’s was originally the property of
    Ramchandra Borkar which was acquired by the government. It was
    purchased by Woler Francis in public auction from the government
    on 25.04.1969. Thereafter, it devolved upon his legal heir Joki Woler
    Ruzer who sold it to the predecessor-in-interest of the Gala’s vide Sale
    Deed dated 17.09.1994. There is no evidence whatsoever on record
    to establish that the government ever transferred any easementary
    right over the rasta in question to Francis Woler or that his legal
    heir Joki Woler Rozer ever acquired or perfected any easementary
    right over it. Therefore, the right which was not possessed by them
    could not have been transferred to the Gala’s under the Sale Deed
    dated 17.09.1994.
36. The said Sale Deed dated 17.09.1994 in original has not been
    produced in evidence. It was only the photocopy of the same which
    was brought on record. The photocopy of a document is inadmissible
    in evidence. Moreover, the said sale deed was executed by
    predecessor-in-interest i.e. Joki Woler Ruzer in favour of predecessor-
    in-interest of the present Gala’s. The said sale deed would not bind
    the third parties who are not signatories or parties to the said sale
    deed. No evidence has been adduced to prove that Joki Woler Ruzer,


5   [2019] 10 SCR 531 : (2020) 16 SCC 553
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                       Digital Supreme Court Reports


       predecessor-in-interest of the Gala’s, had perfected easementary
       rights over the disputed rasta and thus was legally entitled to transfer
       the same. He himself has not come before the Court that he had
       actually acquired any easementary right in the disputed rasta. It is
       not the case of Gala’s that their predecessor-in-interest had acquired
       or purchased the said property from government auction with any
       easementary right over the rasta in dispute. Thus, the Gala’s have
       failed to prove that they have acquired any easementary right under
       the sale deed. In view of the above discussion, reliance upon Dr. S.
       Kumar & Ors. (supra) is completely misplaced and the submission
       in this regard has no merit.
37. Lastly, a frail submission was advanced that one Dharmadhikari,
    owner of Survey No. 57 House No. 13A/2 is enjoying easementary
    right over the said rasta and, therefore, Gala’s cannot be denied
    the same benefit. The submission has been noted to be rejected
    for the simple reason that in the Sale Deed Exh. 163, the original
    owner Vasant Ramchandra Borkar while transferring land to
    Dharmadhikari has specifically assigned right to use the said
    rasta to Dharmadhikari and not to anyone else. The predecessor-
    in-interest of the Gala’s i.e., Joki Woler Ruzer or Francis Woler
    never acquired any such right under their sale deed so as to legally
    transfer it to the Gala’s. DW-1, Sanjay Vasant Borkar, grandson
    of the original owner of the entire property, clearly deposed that
    the disputed rasta was only for use by Dharmadhikari as per the
    sale deed but no such right was sold/assigned to the predecessor-
    in-interest of the Gala’s. Therefore, the Gala’s cannot acquire
    easementary right as is enjoyed by Dharmadhikari whose case
    stand on a totally different footing.
38. It would not be fair on our part if we do not deal with yet one another
    submission of Shri Ahmadi regarding the powers of the appellate
    court in disturbing the findings recorded by the court of first instance.
    The submission made in this context is quite elementary in nature
    as Section 107 of the Code of Civil Procedure, in unequivocal terms,
    lays down the powers of the appellate court vis-à-vis to determine
    the case finally; to remand the case; to frame issues and refer them
    for trial; and to take additional evidence or to require such evidence
    to be taken and shall have the same powers to perform duties as
    nearly as may be that are conferred by the code to the courts of
    original jurisdiction.
[2024] 4 S.C.R.                                                         371

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.


39. Therefore, on the simple reading of the above provision, it is evident
    that the first appellate court is empowered to exercise powers and to
    perform nearly the same duties as of the courts of original jurisdiction.
    Therefore, the first appellate court has the power to return findings
    of fact and law both and in so returning the finding, it can impliedly
    overturn the findings of the court of first instance if it is against the
    evidence on record or is otherwise based upon incorrect interpretation
    of any document or misconstruction of any evidence adduced before
    the court of first instance.
40. In view of the facts and circumstances of the case and the above
    discussions, we find that none of the contentions raised by Shri
    Ahmadi, learned senior counsel for the appellants (Gala’s), are of
    any substance. We do not find any basis to record that the Gala’s
    have acquired easementary right over the disputed rasta in any
    manner much less by prescription, necessity or under an agreement.
    Therefore, the appellate courts and the High Court have not committed
    any error of law in dismissing Suit No.14 of 1994 of the plaintiffs/
    appellants and in decreeing Suit No.7 of 1996 of the defendants/
    respondents.
41. The appeals lack merit and are accordingly dismissed.


     Headnotes prepared by: Divya Pandey                  Result of the case:
                                                           Appeals dismissed.