The judgment established that the acquisition of prescriptive right of easement must be in accordance with the provisions of the Indian Easements Act, 1882, and specific pleadings are necessary to claim entitlement for injunction.

1. Heard Shri Vengurlekar, learned Counsel appearing for the Appellants and Shri Melo, learned Counsel appearing for the Respondents.

2. The above Appeal has been admitted on 13.07.2007, on the following substantial question of law:

(i) Whether it is absolutely necessary to make prayer in the plaint for declaration regarding the existence of right of easement by prescription and if such prayer is not made, whether the suit solely seeking permanent injunction, is bound to fail?

3. During the course of the hearing of the above Appeal, Shri Melo, learned Counsel appearing for the Respondents has argued in support of the Cross Objection filed by the respondents. After hearing both the learned Counsel with that regard, the following additional substantial questions of law are framed by consent of the learned Counsel :

(a) Could an easementary right by prescription be declared by the First Appellate Court, when a specific bar is created under section 17(b) of the Indian Easements Act, 1882?

(b) In absence of pleading nuisance and substantial damage caused to the appellants, could the First Appellate Court declare that the appellants have acquired an easementary right by prescription?

4. The matter was thereafter argued on all the aforesaid substantial questions of law.

5. Before I proceed to examine the rival contentions in connection with the above substantial questions of law, it would be appropriate to briefly state the facts of the present case. The appellants filed a suit on the ground that there is a property known as "Predio Denomindo Villa Raguela” situated at Caranzalem within the panchayat area of Taleigao and surveyed under no.43/5. The said property belonged to one Eulalia Monteiro. It is further their case that the mundkarial houses bearing No. E-237 to E-240 and E-243 are located in the suit property. It is further their case that in the year 1981 the said property was sub divided into plots. The house of the appellants was shown in plot M-1. In the sub division plan, the said plot M-1 comprises of an area of 363.50 square metres. The said plot was purchased by the appellants by a sale deed dated 23.01.1987. The said sale deed has been duly registered. It is further the case of the appellants that towards the north of the said plot purchased by the appellants, there is another plot M-2 with an area of 414.95 square metres wherein there is a house presently occupied by the respondents. The distance between the northern boundary and the northern wall of the house of the appellants is approximately 40 cms from the northern boundary of the plot of the appellants. The roof on the rear portion of the house of the appellants slopes towards the northern and the southern eaves drops of the roof sloping towards the north fall on the boundary between the plot of the respondents and the plot of the appellants. It is further their case that there is a window, door and an open verandah in existence from the time the said house was built for the last more than 50 years which was continuously and uninterruptedly occupied by the appellant no.1 and his parents. It is further their case that as such the appellants have acquired an easement right in respect of the enjoyment of light and air through the windows and door and they are also entitled to enjoy free access to the said door. It is further their case that the respondents under the pretext of constructing the compound wall constructed a room attached to the rear portion of the house. By such construction, the respondents have obstructed the light and air enjoyed by the appellants through the said windows. It is further the contention of the appellants that the respondents are not entitled to carry out such construction and as such filed a suit for mandatory injunction to demolish the dead wall constructed by the respondents along with the door within a distance of 1.50 metres from the northern boundary of the appellants plot and to restore it to its original condition. T