Prescriptive easement requires proof of uninterrupted use for 20 years; unclear evidence can lead to dismissal of claims.

JUDGMENT :

M.G.S. KAMAL, J.

1. This Regular Second Appeal is filed by the legal representatives of the deceased defendant No.1, being aggrieved by the judgement and order dated 14^th March 2007, passed in R.A. No.14/2005 by the Fast Tract Court No.II, Bagalkot (for short “the First Appellate Court”), by which the First Appellate Court, while allowing the appeal filed by defendant Nos.5 to 9, set aside the judgment and decree dated 18^th December 2004, passed in O.S. No.172/2000 by the Prl. Civil Judge (Jr. Dn.), Bagalkot (for short “the trial Court”).

2. The First Appellate Court further declared that the plaintiffs have acquired the right of easement by prescription over the suit schedule “ABCD” pathway in the land belonging to defendant Nos.1 and 2, for the purpose of accessing their lands bearing R.S. Nos.56/1 and 56/2 of Sharadal Village to carry out agricultural activities. Consequently, defendant Nos.1 and 2 were restrained from causing any obstruction to the plaintiffs in the use and enjoyment of suit “ABCD” pathway.

3. Plaintiffs filed the above suit in O.S. No.172/2000 against defendant Nos.1 to 9, contending inter alia;

(a) That plaintiff Nos.1 to 5 are the owners of R.S.No.56/1 and plaintiff Nos.6 to 8 are the owners of R.S. No.56/2. Originally, the land bearing R.S. No.56 belonged to one Saidusab Soudagar, who sold the said land in 1955 to the ancestors of the plaintiffs. Subsequently, there was a partition amongst the ancestors of the plaintiffs, resulting in creation of two subdivisions assigning R.S. Nos.56/1 and 56/2 in the year 1974.

(b) That defendant Nos.1 and 2 are the owners of the lands bearing R.S. Nos.56/2/2 and 54/2/1. Defendant Nos. 3 to 9 are the owners of lands bearing R.S.Nos.55/2A, 55/2B and 55/1, respectively.

(c) A hand sketch has been produced along with the plaint, depicting the location of the properties owned by the plaintiffs and defendant Nos.1 to 9.

(d) That ever since the purchase in the year 1955, they have been accessing their respective lands using cart, agricultural implements, and with the help of servants, from Kaladagi Village via the pathway shown as “ABCD” in the hand sketch. At point “B”, they take diversion towards West into the land belonging to defendant Nos.1 and 2, proceed to point “C”, and from there, enter their lands. Thus, it is claimed that the plaintiffs have been exercising a prescriptive right of easement over the portion marked “ABCD” in the hand sketch, which forms part of the land owned by defendant Nos.1 and 2.

(e) That they have been exercising the said prescriptive right of easement peacefully and without any obstruction ever since the date of purchase, and that they have no other access to their lands. However, defendant Nos.1 and 2, who own the adjoining lands, are now obstructing the plaintiffs from accessing their land. It is further contended that the lands bearing R.S. Nos.55/2A, 55/2B and 55/1, owned by defendant Nos.3 to 9, are situated adjacent to the land of the plaintiffs, and abutting the main road. That the defendants also have an obligation to provide access to the plaintiffs for agricultural purpose, by way of customary rights, through the portion marked as “APQD” in the hand sketch. Hence, the present suit seeking the following reliefs:

“A. It be declared that plaintiffs have acquired, easementary right by way of prescription as well as by way of necessity to approach their lands R.S.Nos.56/1 and 56/2 of Shardal with carts, bullocks, men, agricultural establishment etc. along ABCD as shown in this plaint sketch.

B. It be declared also that the plaintiffs have acquired customery right to approach their lands through R.S.Nos.55/2A, 55/2B and 55/1 of defendants 3 to 8 along APQD, shown in the plaint sketch.

C. A consequential permanent injunction be issued against defendants, their men, agents, servants restraining them from interfering with plaintiffs' right of prescription necessity as customary right as stated above, along the suit way as shown in ABCD, in