IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 59 OF 2003
Shri Pundalik Narayan Xet
Pednekar,
(since deceased)
Versus
Shri Augusto Fernandes,
Coram
: U. V. BAKRE, J.
PRONOUNCED ON: 15th September, 2012.
Citation: AIR2012Bom182,2012(6)ALLMR649,
2013(1)MhLj259
Citation: AIR2012Bom182,2012(6)ALLMR649,
2013(1)MhLj259
The above Second Appeal is filed by the
plaintiffs of Regular Civil Suit No. 397/88/Jr.
2.
The plaintiffs had filed the said Suit
for
permanent injunction restraining the defendants, their
agents, servants and/or any other persons acting on their
behalf, from interfering in any manner with the suit
access.
3.
Case of the plaintiffs, in short, was as follows :-
They are occupying a house as
mundkars
5
SA 59 of 2003
situated in the suit property bearing survey no. 229/25 of
Calangute Village, for more than 50 years. The suit
property is land locked and on the southern side of the
same there is a property managed and looked after by
the defendants, beyond which there exists a public road.
The plaintiffs were always using an access having width
of about 3 metres leading from the public road to the suit
property, through this property of the defendants since
the
time
they
and
their
family
members
occupying the house in the suit property.
started
The said
property of the defendants bears survey no. 229/33 and
the suit access is being used as motorable access since
time immemorial, openly, peacefully and without any
interference from anybody and that it is the only access
available to them to go to the public road.
access
The suit
is also a traditional access and as a right of
necessity and customary
easement for them.
In the
month of August, 1998, defendants brought two trucks
load of mud
in their property and two days thereafter
they planted coconut saplings in order to obstruct the suit
access. Hence the suit.
6
4.
SA 59 of 2003
By way of Written Statement, the defendants
alleged as follows :
The plaintiffs were always using the access
existing on the western side of the suit property to come
to the road existing on the southern side of the property.
The plaintiffs were also using an access existing on the
eastern side of the suit property which leads to village
Arpora. Besides the above, the properties around the suit
property are open and the respondent can use the access
available to them on the eastern side and western side of
the property. The road existing on the southern side of
the
property in possession of the defendants was
originally a Nallah and has been converted by Village
Panchayat into a road about four to five years back. The
property of the plaintiffs is not land-locked and there is no
right of way of necessity or customary easement
available to the plaintiffs, through the property in
possession of the defendants.
After the order dated
31/03/1989 in the application for temporary injunction as
per the terms agreed by way of compromise, the
defendants have enclosed their remaining property by
erecting fencing.
They have also constructed soak pit
7
SA 59 of 2003
and septic tank in the area now alleged and claimed as
access by the plaintiffs. The property on the western side
of the property of the defendants is a vacant land and
plaintiffs are using the same as their access and only the
small portion on the Northern corner of their property is
used by the plaintiffs as walking access.
The plaintiffs
have no right to claim any access motorable or otherwise
through the property of the defendants.
5.
The
plaintiffs
examined
plaintiff
No.1(a),
Umesh Pednekar as PW1; One Shashikala Patil as PW2;
Narayan R. Nagvenkar as PW3 and
PW4.
Ashok Verlekar as
Defendants examined defendant no.1(a), Annie
Coelho as DW1; one Lourdes Rodrigues as DW2; Clothil
Braganza as DW3; and Mrs. Ana Maria D'Souza as DW4.
6.
Upon analysis of the entire evidence on record
the learned Civil Judge Junior Division, Mapusa (trial
Court) held that the plaintiffs have proved that the suit
property is landlocked and that the plaintiffs have right of
way through the suit access only as walking access. The
trial Court had partly decreed the suit. The defendants
8
SA 59 of 2003
were restrained from interfering with part of the suit
access passing through property bearing survey no.
229/33 which had been provided by the defendants to
the plaintiffs pursuant to order dated 31/03/1989 passed
in the application for temporary injunction.
7.
The defendants filed Regular Civil Appeal no.
14/2003, against the judgment and decree of the trial
Court and succeeded in the same. The learned Additional
District Judge (II), Panaji (first Appellate Court) held that
the plaintiffs have not proved that the suit access is the
only access for them to reach the public road or that it is
a traditional access for them to go to the public road or
that it is an easement
easement.
of necessity or a customary
The first Appellate Court also held that the
plaintiffs could not prove that they have right of way
through the suit access by way of prescription. Therefore,
the appeal was allowed and the Judgment and decree
passed by the trial Court was quashed and set aside.
8.
It is against the Judgment and Decree of the
first Appellate Court that the plaintiffs have filed this
9
SA 59 of 2003
Second Appeal which has been admitted on the following
substantial questions of law namely:
i)
Whether,
the
possibility
of
the
Appellants being able to go to the public
road by an alternate access, warranted
the rejection of the appellants' claim to
the suit access, which they were actually
using for the purpose of gaining access to
the public road?
ii)
Whether,
without
reaching
a
conclusion or finding that the Appellants
were not using the suit access, but some
other access to reach the public road, the
First
Appellate
Court
could
have
dismissed the Suit of the Appellants and
reversed the decree of the trial Court,
restraining interference of the Appellants
with the suit access?
iii)
Whether, the First Appellate Court
has misdirected itself in law, in ignoring
the admission made on behalf of the
Appellants
in
their
additional
written
10
statement,
that
SA 59 of 2003
the
Appellants
were
using a small portion of their land as
walking access, while arriving at a finding
that
the
Appellants
have
failed
to
establish their claim to the access?
iv)
Whether, in order to succeed in
getting a decree for permanent injunction
to restrain interference with the access
which the Appellants were actually using,
it was incumbent upon them to establish
that, that was only access available to
them?
v)
Whether,
the
claim
of
the
Appellants to the suit access could be
rejected
on
the
ground
that
the
Appellants had claimed a right to the
same
alternatively
as
an
access
of
necessity, traditional access/ customary
easement or easement by prescription?
vi)
Whether the claim of the Appellants
to the suit access could have been
rejected
on
the
ground
that
the
11
SA 59 of 2003
Appellants have not used the expression
'as of right' while pleading the existence
of suit access and its use for more than
fifty years prior to the institution of the
Suit?
vii)
Whether, the First Appellate Court
had
erred
for
not
looking
to
the
substance of the pleadings, rather than
its form while concluding that a case of
easement was not properly pleaded?
9.
In this Second Appeal, the defendants have
filed an application that is Misc. Civil Application No.
290/2012 under the Order XLII Rule 1 read with Order XLI
Rule 27 of the Code of Civil Procedure for leave to
produce the following documents by way of additional
evidence:
a) The Deed of Sale dated 04/04/2007;
b) The Resolution of the Village Panchayat dated
19/08/2009; and
c)
The Construction License dated 18/05/2009.
12
10.
SA 59 of 2003
The plaintiffs have filed reply to this application
and in the reply they have prayed that in the event the
application filed by the defendants is granted, leave be
granted
to
the
plaintiffs
to
produce
the
following
documents in rebuttal:
i)
Letter dated 27/01/1995 from the Village Panchayat
of Calangute to the applicant no. 2;
ii)
The
License
dated
29/03/1995
issued
to
the
applicant no. 2 by Village Panchayat of Calangute;
iii)
The plan for construction, approved by the Village
Panchayat
of
Calangute,
under
the
aforementioned
construction license dated 29/03/1995;
iv)
The completion certificate granted by the Assistant
Engineer, Public Works Department dated 09/05/1995;
v)
The plaint in Special Civil Suit No. 65/09/C, pending
in the Court of the Civil Judge, “C” Court at Mapusa,
alongwith a copy of the Summons issued by the said
Court to the plaintiffs.
11.
The defendants have filed affidavit in rejoinder
to the reply filed by the plaintiffs alleging that the
plaintiffs cannot produce additional documents in an
13
SA 59 of 2003
application filed by the defendants under Order XLI Rule
27 of the C.P.C..
12.
Mr. Lotlikar, learned Senior Advocate
on
behalf of the plaintiffs, at the out set, made it clear that
the plaintiffs are not claiming the suit access by way of
easement of necessity under Section 13 of the Easement
Act or as a traditional access or
a customary
access.
He submitted that the plaintiffs claim the suit access by
way of easement of prescription. He invited my attention
to paragraph 1 of the plaint wherein it has been pleaded
that there exists a house of the plaintiffs in the suit
property and that the plaintiffs are occupying the same
as Mundkars for more than 50 years. He further pointed
out that in paragraph 4 of the plaint it is pleaded that the
suit access has been used by the plaintiffs and
family
members since the time the plaintiffs started occupying
the said house and that the suit access has been used by
the plaintiffs and family members openly, peacefully and
without any interference from anybody.
He therefore
contended that there is a clear pleading to the effect that
the suit
access
has been used by the plaintiffs and
14
family
members
openly,
peacefully
SA 59 of 2003
and
without
interference for the last more than 50 years. He invited
my attention to paragraph 13 of the judgment of the trial
Court where it has been observed that the plaint when
read as a whole clearly shows that the plaintiff is claiming
a right of way through the property surveyed under
survey no. 229/33, as of right, although he has not used
the words “as of right”. He pointed out that the learned
trial Court has observed that it is common knowledge
that the same meaning can be expressed in different
words and that the plaintiff has no where pleaded that his
use of the suit way was permissible.
Learned Counsel
also pointed out the trial Court has held that since the
existence of the access is proved it can reasonably be
presumed that the suit access was used for more than
20 years, though it is proved to be only a walking access.
According to the learned senior counsel appearing for the
plaintiffs,
therefore,
the
plaintiffs
have
proved
prescriptive right to the suit access at least as walking
access. He, thus, submitted that the judgment and order
of the trial Court ought not to have been reversed by the
first
Appellate
Court.
He
contended
that
the
first
15
SA 59 of 2003
Appellate Court has only considered whether the plaintiffs
have alternate accesses which was not at all necessary or
relevant to the case of prescription set out by the
plaintiffs.
13.
Insofar as substantial question at serial no. (i)
is concerned, learned counsel for the plaintiffs argued
that since the plaintiffs are claiming the suit access by
way
of
easement
of
prescription,
the
question
of
possibility of the plaintiffs being able to go to the public
road by an alternate access does not arise and therefore
the same cannot warrant the rejection of the plaintiff's
claim to the suit access. With regard to the substantial
question at serial no. (ii), the learned counsel for the
plaintiffs submitted that the first Appellate Court has no
where held that the plaintiffs were not using the suit
access and therefore the first Appellate Court could not
have reversed the decree of the trial Court. He invited
my attention to the additional written statement filed by
the defendants wherein they have admitted that the
plaintiffs were using a small portion of their land as a
walking access.
According to the learned counsel the
16
SA 59 of 2003
learned First Appellate has misdirected
itself in law in
ignoring the said admission made on behalf of the
defendants.
He pointed out that the trial Court had
conducted site inspection at the time of considering the
application for temporary injunction and site inspection
report was prepared and even some compromise was
recorded.
He submitted that the learned trial Court has
mentioned in paragraph 35 of the judgment that the suit
access could be identified with reference to order dated
31/03/1989 in temporary injunction application being no.
CMA/30/88 and that this order is an admitted document
as it has been admitted
by the defendants in their
additional written statement. He further pointed out that
the
trial Court has observed that the defendants have
provided this access on the western and northern side of
property surveyed under survey no. 229/33 and that
PW3 has deposed that this is the same access which
existed right from the beginning. The learned Counsel
submitted
that
the
plaintiffs
had
relied
upon
the
judgment of the Madhya Pradesh High Court, in the case
of “Rajadhiraj Industries (P) Ltd. Vs Nanhelal Bagbel and 4
others”, reported in
1986(1) Current Civil cases, 653,
17
SA 59 of 2003
before the first appellate Court, wherein it has been held
that the site inspection report made by a judge forms
part of the record and it can be taken into account while
pronouncing the judgment. He further pointed out that
the trial Court has held that if this pathway which is a
walking pathway is blocked, the suit property would
become land locked and the defendants must be
prevented from doing so. He therefore argued that there
is ample evidence to prove the existence of the suit
access to the extent of a walking pathway and its use for
more than 20 years since prior to the filing of the suit
and therefore the impugned judgment and decree of the
first Appellate Court is liable to be quashed and set aside
and the judgment and decree of the trial Court is liable to
be restored.
14.
Insofar as the Misc. Application for production
of additional documents is concerned, the learned Senior
counsel appearing for the plaintiffs argued that the
documents sought to be produced on record have all
come into existence subsequently and if the said
documents are considered along with the additional
18
SA 59 of 2003
documents sought to be produced by the plaintiffs, it
would be found that the said documents do not advance
the case of the defendants. He therefore contended that
Miscellaneous Application
No. 290/12 is liable to be
dismissed.
15.
Per contra, Mr. S. S. Kantak, learned senior
advocate appearing for the defendants submitted that
since the plaintiffs have now restricted their claim to the
easement by prescription, he would not argue on the
other aspects of easement by necessity, traditional or
customary easement, etc.. He
argued that in order to
claim an easement by prescription, it was necessary to
specify the exact ingress and egress of the portion of the
property of the defendants, used as access. He further
contended that for a period 19 years and 364 days, the
use would be trespass and at the end of 20 years, the
user has to get a declaration of easement of prescription
which otherwise remains as an inchoate right. Mr. S. S.
Kantak,
learned
Senior
counsel
appearing
for
the
defendants read out the provision of Section 15 of the
Easements Act and submitted that there has to be a
19
SA 59 of 2003
public road in existence for a period of 20 years and the
existence of the access to go to that public road.
He
pointed out from the written statement of the defendants
that the alleged public road, on the southern side, was a
nallah and the road was constructed by the Village
Panchayat only about 4 to 5 years prior to the filing of
the written statement.
He submitted that the written
statement was filed on 24/11/1998 which means that the
road was constructed in or about the year 1983-84. He
then invited my attention to the deposition of DW1
wherein she has stated that the road was constructed on
half portion of the nallah in the year 1985 and there is no
denial to this. He further pointed out that PW1 himself in
his cross-examination has admitted that there was drain
converted into road about 16 years back.
He therefore
submitted that 20 years of uninterrupted use to go to the
public road cannot at all be there since no public road
was existing for such a period.
The learned counsel
appearing on behalf of the defendants therefore argued
that no case of easement of prescription has been made
out. The learned counsel further contended that the
averment in the additional written statement regarding
20
SA 59 of 2003
the small walking access kept by the defendants was only
regarding the stop gap arrangement made by the
defendants till the final disposal of the suit in terms of
compromise arrived at and that the same cannot prove
the existence of the suit access, as of right. He further
pointed out that the alleged walking access mentioned in
the said site inspection report was as per the position
existing on the day of site inspection and it cannot be a
position which was for more than 20 years. The learned
counsel for the defendants submitted that the learned
trial Judge has presumed that the suit access was used
for more than 20 years merely because the existence of
the access is proved as a walking access. He argued that
there is no evidence on record to prove the existence of
the access for more than 20 years. He argued that there
is no pleading in the plaint and evidence to the effect
that the suit access is being used “as of right” which is
the prime requirement of section 15 of the Easements
Act.
16.
With
Application No.
regard
to
the
Miscellaneous
Civil
290 of 2012 is concerned, the learned
21
SA 59 of 2003
counsel for the defendants argued that the plaintiffs
cannot by way of reply produce additional documents and
that the plaintiffs, if they wanted to produce additional
documents,
ought
to
have
filed
an
independent
application under Order XLI Rule 27 of C.P.C.
submitted
that
the
documents
produced
He further
by
the
defendants have come into existence after the impugned
judgment and decree passed by the first Appellate Court
and therefore they were not available when the Suit and
the First Appeal were decided. He further submitted that
the said documents sought to be produced by the
defendants reveal that the plaintiffs have purchased the
property bearing survey no. 229/31 which property is on
the southern side of their property and that between
229/31 and the road there is a property bearing survey
no. 229/32. He further contended that it is the case of
the defendants that the property bearing survey nos.
229/31 and 229/32 are open and vacant lands and that
the plaintiffs have access to their land through the said
properties. The learned counsel further pointed out that
as per the resolution passed by the Village Panchayat,
the plaintiffs have three metres wide tar road on the
22
SA 59 of 2003
northern side of their property and also have exclusive
access from the main road through the property bearing
survey nos. 229/31 and 229/32.
He, therefore, argued
that the documents sought to be produced by the
defendants are relevant and therefore the defendants to
be allowed to produce them. He further contended that
the said documents duly prove that the plaintiffs have an
alternate access
without using the property of the
defendants. He therefore prayed that the Second Appeal
be dismissed.
17.
The learned senior counsel appearing for the
defendants, in support of his contentions with regard to
the easement by prescription, has relied upon following
judgments:
(a) Macario Antonio Francisco De ... Vs Alex
Fred D'Souza and Ors.
[ 1993 (1) Bom CR 465]
(b) Justiniano Antao and Others Vs
Bernadette B. Pereira (Smt).
[(2005) 1 SCC 471]
(c) Abdul Raheman and another Vs
23
SA 59 of 2003
Mulchand.
[AIR 1928 Nagpur 91 (1)]
He has also relied upon following judgments
on the scope of interference under section 100 of C. P. C.
(a) Municipal Committee, Hoshiarpur Vs
Punjab State Electricity Board and Others
[(2010) 13 SCC 216]
(b) Gurudev Kaur and others Vs Kaki and
others.
[(2007) 1 SCC 546]
18.
I have carefully gone through the record and
proceedings in the light of the arguments advanced by
the learned counsel for both the parties.
19.
The
Miscellaneous
Civil
Application
No.
290/2012, for leave to produce additional documents, has
been filed by the defendants in order to show that the
plaintiffs have an access other than the suit access.
However, now since the learned counsel for the plaintiffs
has made it clear that the plaintiffs are not claiming any
easement of necessity or any traditional or customary
24
SA 59 of 2003
easement and that the plaintiffs are claiming the suit
access, by way of an easement of prescription, the
question whether plaintiffs have any alternate access
does not arise and the question is only whether the suit
access exists and whether it is proved to be an easement
by prescription. Therefore the documents sought to be
produced by the defendants do not have any relevance to
the question involved in the present appeal.
The
plaintiffs, by way of reply, have sought leave to produce
documents in the event this court allows the application
filed by the defendants. In other words, since the
documents
sought to produced by the defendants are
not relevant, the documents sought to be produced by
the plaintiffs are also not relevant.
Therefore, without
going into the merits of the application, I hold that the
documents sought to be produced by both the parties, at
this stage, are not relevant. The Misc. Civil Application
No. 290/2012 deserves to be dismissed.
20.
Insofar as the substantial questions at serial
nos. (i) and (ii) are concerned since the plaintiffs have
now restricted their claim to the suit access only by way
25
SA 59 of 2003
of an easement of prescription, the question of possibility
of the plaintiffs being able to go to the public road by an
alternate access, does not arise.
The question of said
possibility would have arisen only if the plaintiffs wanted
to maintain their claim to the suit access by way of
easement of necessity, etc..
Therefore, the substantial
questions at serial nos. (i) and (ii) are not relevant.
21.
In the additional written statement filed by the
defendants they have pleaded that the plaintiffs have no
right to get any access through the
property of the
defendants. It is further alleged that the property of the
plaintiffs is not landlocked and there is no access by
necessity
and customary easement to which the
plaintiffs are entitled.
It is further alleged that the
plaintiffs are not entitled for any declaration that they
have any right to easement created upon the access road
and the suit area as provided under Article 2309(1) of
the Portuguese Civil Code.
plaintiffs
have
no
It is also alleged that the
easementary
right
of
way
customary right of easement to have motorable
and
road
through the suit access. What has been stated about the
26
SA 59 of 2003
walking access, in the said additional written statement is
that the same is a temporary stop gap arrangement that
was made on account of the order dated 31/03/1989
passed by the trial Court.
additional
written
In paragraph 2 of the said
statement
the
defendants
have
specifically averred that after the order dated 31/03/1989
as per the terms agreed in the said compromise they
have enclosed their remaining property by erecting
fencing and also constructed soak pit and septic tank in
the area now alleged and claimed as access by the
plaintiffs. It is further averred that the property on the
western side of the property of the defendant is a vacant
land and the plaintiff is using the said property as his
access and only the small portion of the northern corner
of the property of the defendant is used by the plaintiffs
as a walking access. Thus the said small portion of the
northern corner of the property of the defendants, which
otherwise is not the suit access claimed by the plaintiffs,
is allowed to be used as walking access only till the final
disposal of the suit in view of the terms agreed and in
view of the order dated 31/03/1989 passed in the
temporary injunction application.
Therefore, it cannot
27
SA 59 of 2003
be said that the first Appellate Court has misdirected
itself in law in ignoring the admission made on behalf of
the defendants in their additional written statement. The
substantial question no. (iii) therefore gets answered
against the plaintiffs.
22.
Since the plaintiffs are not claiming any
easement
of necessity or a traditional access or a
customary easement, the substantial questions at serial
nos. (iv) and (v) do not arise.
23.
In paragraph 4 of the written statement, the
defendants have stated that the road existing on the
southern side
defendants
of the property in possession of the
was
originally
a
nallah
and
has
been
converted by the Village Panchayat into a road about 4
to 6 years back.
This written statement was filed on
24/11/1988. Thus, according to the defendants the road
on the southern side of the property in possession of the
defendants was constructed in the year 1983 or 1984.
PW 1, the plaintiff no.1(a), in his cross-examination, has
admitted that towards the southern side of plaintiffs' and
28
defendants'
house,
there
was
SA 59 of 2003
a
drain
which
was
converted about 16 years back into a road by a Village
Panchayat.
PW1 has
further admitted that prior to 16
years there was no road on the southern side.
deposition, DW1, the defendant 1(a) has deposed
In his
that
on the southern side of her property, there exists a
Panchayat road which was constructed in the year 1985
and that earlier it was a nallah but half portion of the
nallah was converted into a road and remaining portion of
the nallah is still existing there. In the cross-examination
of DW1, it is not denied that the road was constructed in
the half of the nallah in the year 1985.
On the contrary
it has been suggested to DW1 that the road constructed
in half portion of nallah is not having the length of 100
metres but it has a length of 300 metres approximately.
24.
From the above, it is clear that even if it is
taken for granted that the plaintiffs have been using the
access from the property of the defendants to go to the
said Panchayat road situated on the southern side of the
property, the said user can only be from the time of
coming into existence
of the
said road which was
29
SA 59 of 2003
somewhere in the year 1984-85. The suit was filed by
the Thus,
plaintiff
on
27/09/1988.
the
alleged
continuous, peaceful and open use was only for few years
since prior to the filing of the suit which is less than even
10 years. Therefore, the plaintiff is not entitled to claim
the suit access as an easement by prescription.
25.
In the case of “Macario Antonio Francisco
De ..... ”(supra), the learned Single Judge of this court
has referred to the case of “Siti Kanta Pal and another
v/s. Radha Gobinda Sen and others” and “Harisadha De
and others V/s. Radhika Prasad Pandit and others”,
wherein it has been laid down, with reference to Section
15 of the Easements Act, that long user does not prove
enjoyment as of right though an enjoyment as of right
cannot be inferred as a matter of course from a finding
only or for that matter long user. The learned Single
Judge has observed that Section 15 of the Easements Act
makes it amply clear that to acquire an easement by
prescription in respect of right of way it must not only be
peacefully and openly enjoyed but as an easement and
as of right without interruption for 20 years.
30
26.
In
the
others”(supra),
case
of
SA 59 of 2003
“Justiniano
Antao
and
it has been held by the Apex Court that
in order to establish a right by way of prescription one
has to show that the incumbent has been using the land
as of right peacefully and openly and without any
interruption for the last 20 years and there should be
categorical pleadings that since what date to which date
one has easement access for the last 20 years and in
order to establish the right of prescription to the
detriment
of the other party, one has to offer specific
pleadings and categorical evidence.
27.
In
the
case
of
“Abdul
Raheman
and
another”(supra), it has been held that the party has no
cause of complaint if his neighbour withdrew the support
of his own wall from under the plaintiff's modern super-
structure before the user had ripened into a prescriptive
right.
28.
A perusal of the plaint reveals that the plaintiff
has not identified and described the suit access in the
manner it was necessary.
The point of ingress and
31
SA 59 of 2003
egress; length and width of the suit access and exact
location thereon has not been stated nor has been shown
by way of sketch. It has been alleged that the suit access
is the only access available to the plaintiff to go to the
public road and that there is no other access. It is further
alleged that the suit access is a traditional access. It is
also stated that the suit access is a customary access. It
is further alleged that the property of the plaintiffs is
landlocked and that the plaintiffs have right to have an
access
as
provided
Portuguese Civil Code.
under
Article
2309(1)
of
the
But no prayer in respect of such
a right has been made. Lastly, it has been claimed that
the suit access has been used by them for the last 50
years openly, peacefully and without interference from
any one.
However, there is no pleading that the suit
access has been so used “as of right”. Part of section 15
of the Easements Act reads:- “..... and where a right of
way or easement has been peaceably and openly
enjoyed by any persons claiming title therein as an
easement
as and of right without interruption for 20
years.” In view of the above, I am of the view that the
First Appellate Court cannot be said to have erred in
32
SA 59 of 2003
holding that a case of easement was not properly
pleaded in the plaint. The substantial question at serial
no.7 is therefore answered against the plaintiffs.
29.
In view of the above, the substantial questions
at serial nos. (vi) and (vii) get answered against the
plaintiff.
30.
In view of the discussion supra, there is no
merit in the second appeal. No interference is therefore
called for with the impugned judgment and decree dated
08/08/2003 passed by the learned first Appellate Court.
31.
In the result, the appeal and the Misc. Civil
Application are dismissed, with no order as to costs.
U. V. BAKRE, J.
MV
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