TMI Blog2016 (11) TMI 1675X X X X Extracts X X X X X X X X Extracts X X X X ..... be transferred separately by segregating one from the other to two different persons, since such easementary right would automatically follow the right on the dominant heritage if such dominant heritage is transferred to another person - the contention of the learned counsel for the appellant cannot be sustained. The lower appellate Court has rightly decreed the suit taking into consideration of the existence of Ex.A1 agreement followed by the sale deeds marked as Exs.A2 to A4 in favour of the plaintiff - Decided against appellant. One more aspect to be noted in this case is that the defendants 1 and 2, who are the parties to the agreement under Ex.A1, though filed their written statement, have, however, not chosen to contest the matter latter. They remained exparte. They were not even examined as witnesses on the side of the defendants. Needless to say that any amount of pleading without there being any evidence in support of such pleading, cannot be looked into or sustained or held to be proved especially, when the other side disputes such claim. Admittedly, the 3rd defendant, who is the appellant herein, is only a subsequent purchaser during the pendency of the suit. He was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relief as stated supra. 3. The defendants 1 and 2 filed their written statement. The 3 rd defendant purchased the B-Schedule property along with other properties from the defendants 1 and 2 during the pendency of the suit and got himself impleaded as the 3 rd defendant in the suit and filed a separate written statement, however, in line with the written statement already filed by the defendants 1 and 2. Thus, the contention of the defendants are as follows: No such cart track is in existence in the B-Schedule property. The plaintiff's predecessors in title had not acquired any easementary right over any cart track by way of the agreement dated 07.03.2005. The 8 cents of land shown as B-Schedule property is not a cart track and the defendants 1 and 2 did not convey any easementary right over the same to the plaintiff's predecessors in title under the agreement dated 07.03.2005. The defendants are doing agriculture in the said 8 cents of land. The agreement dated 07.03.2005 is false and no such agreement was executed. 4. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A6 on his side. The defendants 1 and 2 though filed their wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by him since they are the proper parties to speak about Ex.A1. He further contended that though the defendants 1 and 2 remained exparte after filing their written statement, the 3 rd defendant, being the purchaser pendente lite is entitled to defend the suit. In support of such contention, learned counsel relied on the decision of the Apex Court reported in 2013(2) CTC 104 (Thomson Press (India) Ltd. vs. Nanak Builders Investors P. Ltd.). 8. Mr.A.K.Kumarasamy, learned counsel appearing for the 1 st respondent submitted as follows: The plaintiff's vendors got the easementary right through Ex.A1 and the plaintiff purchased A-Schedule property along with such easementary right over the B-Schedule property from his vendors. The recitals under Ex.A1 is very clear that the defendants 1 and 2 cannot transfer such right conferred on the vendors of the plaintiff to any third parties. The 3 rd defendant is only the subsequent purchaser during the pendency of the suit. The defendants 1 and 2 remained exparte and did not contest the suit. The subject matter right is not a license and on the other hand, it is only an easementary right. 9. Heard both sides and perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant mainly contended that an easementary right cannot be transferred since the same is as prohibited under Section 6(c) of the Transfer of Property Act, 1882. Therefore, he submitted that the vendors of the plaintiff have no right to transfer such easementary right conferred on them under Section Ex.A1 by the defendants 1 and 2. 12. Let me consider whether the above contention of the appellant's counsel is legally sustainable. Section 4 of the Indian Easements Act,1882, defines Easement as follows: An easement is 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. Dominant and servient heritages and owners: - The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. 13. A perusal of the above said provision would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the transfer the transferees were entitled to the same facilities of irrigation that used to be attached to the land transferred before it was transferred. Therefore, from the above discussion of the position of law and the decisions rendered by this Court earlier, I am of the view that the contention of the learned counsel for the appellant cannot be sustained. The lower appellate Court has rightly decreed the suit taking into consideration of the existence of Ex.A1 agreement followed by the sale deeds marked as Exs.A2 to A4 in favour of the plaintiff. 16. One more aspect to be noted in this case is that the defendants 1 and 2, who are the parties to the agreement under Ex.A1, though filed their written statement, have, however, not chosen to contest the matter latter. They remained exparte. They were not even examined as witnesses on the side of the defendants. Needless to say that any amount of pleading without there being any evidence in support of such pleading, cannot be looked into or sustained or held to be proved especially, when the other side disputes such claim. Admittedly, the 3rd defendant, who is the appellant herein, is only a subsequent purchaser during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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