Jivanlal S/O Kannaiyalal Paliwal vs Krishnarao D. Sathone
2003 Latest Caselaw 1161 Bom

ORDER

S.T. Kharche, J.

1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this appeal is directed against the judgment and decree passed by the learned 7th Additional District Judge, Nagpur, in Regular Civil Appeal No. 189 of 1980, who allowed the appeal and set aside the Judgment and decree passed by the trial Court dismissing the suit and declared that the plaintiff is entitled to have access to his field Survey No. 639/1 from the way shown by letters AB in the plaint map through field survey No. 640 owned by the defendant and also granted consequential relief of permanent injunction restraining the defendant from obstructing the user of way.

2. Brief facts are as under :

Plaintiff is the owner of field survey No. 639/1 and the defendant is the owner of field survey No. 640 situated at village Mowad and the field of the defendant is adjoining on the southern side of the field of the plaintiff. The plaintiff contended that he has a right Of way to approach his field from the disputed way which is shown by letters AB in the map annexed with the plaint. The plaintiff further contended that he has been using this way openly, peacefully and without any interruption since more than 20 years. He used to take his bullock-cart and agricultural implements to his field through this way and, therefore, he has acquired a right of way by prescription. The right of way proceeds from nala (stream) diving the field of the defendant in two parts. The defendant had obstructed the right of way prior to two months of the institution of the suit and, therefore, he was served with a notice dated 23-9-1974. The defendant did not give any reply to the notices and the obstruction continued. Therefore, the plaintiff was constrained to file the suit for declaration of the right of way and consequential relief of mandatory and permanent injunction.

3. The defendant combated the pleadings of the plaintiff by filing his written statement and contended that the plaintiff has access to his field through another two ways. He contended that the right of way claimed by the plaintiff cannot be said to have ripened into acquisition by way of prescription and hence the suit is liable to be dismissed with costs.

4. The trial Court framed the issues. The plaintiff had examined himself (PW-1) and. other two witnesses, namely Panchi Nago Kathane (PW-2) and Gajanan Ramnath Vidya (PW-3) and the defendant had examined himself only. The trial Court on consideration of the documentary as well as oral evidence and on hearing the learned counsel for the parties had come to the conclusion that the defendant has obstructed the way by digging ditch on the way, but the plaintiff has failed to establish that he has acquired easement by prescription and, as such, is not entitled to the relief of declaration and injunction and consistent with these findings he dismissed the suit. The plaintiff being aggrieved by this judgment and decree had carried appeal to the District Court, The appellate Court reversed the findings and set aside the judgment and decree passed by the trial Court and decreed the suit and declared that the plaintiff has acquired the easement in relation to the user of the way shown by letters AB in the plaint map and also granted consequential relief of perpetual injunction restraining the defendant from obstructing the user in any manner. It is this judgment and decree which has been challenged in this Appeal.

5. Mr. Chandurkar, learned counsel, for the defendant contended that the trial Court considered the evidence on record In proper perspective and has recorded the finding that the user of the disputed way was only permissive and that the plaintiff did not acquire an easement by prescription within the meaning of Section 15 of the Easement Act. He contended that the plaintiff has access to his field through other two ways available to him and the bullock-carts could be taken up to the half portion to the north of point A shown in the map annexed with the plaint and then one has to walk down the distance up to the field of the plaintiff and the width of the nala (stream) is about 2-3 cubits only. He contended that there was no reason for the appellate Court to disturb the finding of fact recorded by the trial Court in relation to the acquisition of right of way by prescription. He further contended that in the facts and circumstances, the impugned order passed by the appellate Court is not sustain-able in law and deserves to be set aside by restoring the judgment and decree passed by the trial Court.

6. Mr. Kukdey, learned counsel, for the plaintiff contended that the appellate Court has rightly considered the evidence adduced by the parties and even after taking into consideration the preponderance of probabilities recorded finding that the plaintiff has acquired an easement of right of way by prescription. He contended that the evidence of the plaintiff and his two witnesses unequivocally prove that the plaintiff has been using the disputed way since last more than 30 to 40 years and the defendant has obstructed the user within two years before the institution of the suit. He contended that the user of the way was uninterrupted, as of right for more than 20 years, without any obstruction from the side of the defendant and, therefore, the user has ripened into acquisition of easement by prescription. He contended that the appellate Court is a final Court for finding of facts and there is no reason for this Court to interfere into the findings recorded by the appellate Court. He contended that no substantial question of law is involved in this Appeal and, therefore, the same is liable to be dismissed.

7. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. At this juncture, it is necessary to reproduce Section 15 of the Indian Easements Act (5 of 1882) (for short the Act). It reads thus :

"15. Acquisition by prescription.-- Where the access and the use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption and for twenty years,

and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years,

and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,

the right to such access and use of light or air, support or other easement shall be absolute.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

Explanation I.-- Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.

Explanation II.-- Nothing is an interruption within the meaning of this section, unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.

Explanation III.-- Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.

Explanation IV.-- In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.

For acquiring an easement, there are three known modes; (1) express or implied grant; (2) user as of right for the statutory period of 20 years, i.e., by prescription; and (3) immemorial user upon the fiction of a lost grant. For the second mode, the period of 20 years or over must end within 2 years next before the suit's institution wherein claim to the easement is contested; it necessarily implies that the right of easement by prescription cannot become absolute unless contended and established in a suit. Thus, in a suit for injunction; based on a prescriptive easement, the plaintiff must also seek a declaration that he has so acquired the prescriptive right of easement and this is what exactly has been done by the plaintiff while Instituting the suit for declaration and injunction.

8. It is not in dispute that the plaintiff is the owner of field Survey No. 639/1 whereas the defendant is the owner of field survey No. 640 and the field of the defendant is situated on the southern side of the plaintiffs field. It has been brought on record through the evidence of the witnesses that there is a stream on the southern side of the field of the plaintiff and the plaintiff can have access to his agricultural land only through the disputed way which is shown by letters AB in the map annexed with the plaint. Even the finding of the trial Court would show that this stream is unenclosed and is being used as a way by the plaintiff but the trial Court was of the view that the user was only permissive.

9. The appellate Court has rightly considered the evidence and has recorded finding that the user of the way was for more than 30 to 40 years and also as of a right without any obstruction. The appellate Court observed that the user was openly, peacefully and without any obstruction for the statutory period and, therefore, the plaintiff has acquired easementary right of way by prescription. The appellate Court also considered that long user of right of way raises a presumption in favour of the person using the way that the enjoyment has been as of a right especially when the presumption has not been rebutted by the defendant.

10. An easement can be acquired by prescription under Section 15 of the Act. Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement and the burden is on the party asserting such a claim to prove it clearly. This he must do by showing a grant conferring an easement in express term or by necessary implication or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquiescence of the owner of the servient tenement, that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription without change or material variation. A right of way may be acquired by prescription where the same has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without any Interruption and for 20 years. However, it all depends upon the facts and circumstances of each case. In the present case, the plaintiff has proved that he has acquired the right of easement by prescription under Section 15 of the Act and that the acquisition was being used as of a right within two years of the institution of the suit.

11. The evidence on record would indicate that the defendant had obstructed the user and though he was served with the notice dated 23-9-1974, he did not give any reply to the said notice for the best reasons known to him and, therefore, it is apparent that whatever mentioned in the notice has gone unchallenged. The evidence would further indicate that the defendant had obstructed the user just two months before the institution of the suit and it is, obvious that the plaintiff has been using the disputed way as of right for the statutory period continuously, openly and peaceably within two years of the institution of the suit. In this view of the matter, it cannot be said that the finding of the appellate Court was not based on evidence. In the result, I am of the considered view that the impugned judgment and decree passed by the appellate Court is sustainable in law and there is no reason for this Court to take a different view of the matter. Thus, it is obvious that no substantial question of law is involved in this appeal and the same is dismissed with costs.