Sanjay K. Agrawal, J.

1. This appeal has been admitted for final hearing on 23-2-2005 on the following substantial question of law:--

Whether the suit was wrongly dismissed by both the Courts below with the observation that the plaintiffs have not proved that the right was used as an easementary right and this finding is against the record?

[For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.]

Shorn off unnecessary details, the core facts that would need a recital are enumerated herein below:--

1.1. Plaintiffs/Bhaiyaram and Ramlal filed a suit for declaration and permanent injunction stating inter alia that they are the owners and title-holders of the land as mentioned in Paragraph 2 of the plaint and they have a right to way on the land bearing Khasra No. 2263/3 area 7 dismil and Khasra No. 2262 area 22 dismil recorded in the names of defendant Nos. 1 and 2, namely, Tulsiram and Tukaram, respectively for approaching their agricultural fields from the main road for the time immemorial, but, defendant Nos. 1 and 2 were entering into an agreement to sell the said land against which notices dated 3-6-1996 and 4-7-1996 raising objections were served by them upon defendant Nos. 1 and 2. Defendant Nos. 1 and 2 were requested to leave 20 feet wide road for use of the plaintiffs as a way to their agricultural fields. The plaintiffs prayed that a decree for declaration be passed holding that the plaintiffs have an easement of right to way on the defendants' land and they are entitled for a permanent injunction.

1.2. Defendant Nos. 1 and 2 remained ex parte before the Trial Court as they did not enter into appearance. Ex parte evidence of the plaintiffs was recorded by the Trial Court.

2. The Trial Court framed the following issue:--

The Trial Court, by judgment and decree dated 6-1-1998, dismissed the suit holding that there is no oral or documentary evidence on record to prove the right to way on the defendants' land claimed by the plaintiffs.

3. On an appeal filed by the plaintiffs, the First Appellate Court, by impugned judgment and decree dated 21-9-2004, dismissed the same holding that the plaintiffs have failed to establish their easement of right to way on the defendants' land.

4. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (henceforth "the CPC") by the plaintiffs challenging the judgment and decree passed by the two Courts below dismissing the suit.

5. Shri D.N. Prajapati, learned Counsel appearing for the appellants/plaintiffs would submit that both the Courts below have committed a legal error in dismissing the suit of the plaintiffs ignoring the overwhelming evidence available on record to hold that the plaintiffs are enjoying the easement of right to way on the defendants' land for the last 20 years.

6. None appeared on behalf of respondent Nos. 1 and 2/defendant Nos. 1 and 2 though served to support the impugned judgment. Shri Akhil Agrawal, learned Panel Lawyer appeared on behalf of the State.

7. I have heard the arguments and have also perused the record with utmost circumspection.

8. The term "Easement" has been defined in Section 4 of the Indian Easements Act, 1882 (henceforth "the Act of 1882"). The definition runs thus:--

4. 'Easement' defined.--An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.

Dominant and servient heritages and owners.--The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

Explanation:--In the first and second clauses of this section, the expression 'land' include