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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

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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.