Sanjay K. Agrawal, J.

1. The substantial question of law involved, formulated and to be answered in second appeal preferred by the plaintiff is as under:-

"Whether on the facts and in the circumstance of the case, the Court below committed an error in dismissing the suit as there was no reference to the right of easement in the sale-deed executed by the original owner Ramsingh in favour of the plaintiff?"

For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court.

2. The plaintiff and defendant No. 1 both were brothers. Plaintiff-Bhulu filed a suit claiming easementary right stating inter-alia that he is owner and title-holder of land bearing khasra No. 768/3 area 0.061 hectare, whereas defendant No. 1 is owner and title-holder of khasra No. 768/2 area 0.081 hectare situated at Salounikala. It has further been pleaded that in between Aamgali and his land, a land bearing khasra No. 768/2 area 0.081 hectare owned by defendant No. 1 is situated. There is passage of about 5 ft. in khasra No. 768/2 and through this passage, the plaintiff used to go to his field from aamgali. Defendant No. 1 has purchased the said land from defendant No. 2 on 15.3.1993 (Ex.D/1) and said passage was being used by the plaintiff for more than 24 years and he has perfected his right of peaceful enjoyment on the said path. It has also pleaded that defendant No. 1 Alguram digging the said path for constructing a wall of stones and obstructing the plaintiff from using the path, therefore, a decree be passed declaring his easementary right.

3. Defendant No. 1 filed his written statement denying the plaintiff's right of user as a passage to the part of khasra No. 768/2.

4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 15.12.98, dismissed the suit holding that the plaintiff does not possess right of enjoyment and easement, which was upheld by the First Appellate Court by the impugned judgment and decree.

5. Questioning legality and validity of the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the CPC has been preferred by the appellant/plaintiff, in which substantial question of law has been framed by this Court, which has been setout in the opening paragraph of this judgment.

6. Mr. P.M. Shriwas, learned counsel for the appellants/plaintiff, would submit that both the Courts below are absolutely unjustified in dismissing the suit by holding that the plaintiff does not possess right of enjoyment and easement.

7. On the other hand, Mr. Rajendra Patel, learned counsel for respondent No. 1(a), would support the impugned judgment and decree impugned.

8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

9. The term "Easement" has been defined in Section 4 of 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 includes also things permanently attached to the earth; the expression beneficial enjoyment includes also possible convenience, remote advantage, and even a mere amenity and the expression to do something includes removal and appropriation by