Easementary rights must be evidenced by uninterrupted and peaceable enjoyment for twenty years, as per Section 15 of the Indian Easements Act, to be enforceable.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal under Section 96 r/w. Order XLI Rule 1 of the Civil Procedure Code is filed by the appellant - against the judgment and decree dated 02.03.2007 passed by the learned City Civil Judge, Court No.4, Ahmedabad [hereinafter be referred to as “the trial Court”] in Civil Suit No. 5205 of 1998 whereby the trial Court has dismissed the suit.

FACTS OF THE CASE :

2. That the property bearing survey No.31 admeasuring 125 square meters, Municipal Census No.18-A, 18-A-1, 18-A-2 of Raikhad Ward No.1, Behind Church, Opposite Jamalpur Mochiole Khanja Darwaja, Ahmedabad originally was purchased by one Fidahussain Abdulrazak Khureshi by registered sale deed dated 10.04.1974. The plaintiff purchased the property from Fidahussain – predecessor in title by registered sale deed No. 4243 dated 11.11.1997, description of which is as under:-

2.1 It is the case of the appellant that from the said plot of land, he is using for the purpose of egress and ingress to reach to her house and no other way existed as mentioned in the plaint. It is the case of the appellant that defendant No.1 was the original owner of the property in question. The original defendant No.2 purchased the property bearing survey No. 32, which is adjoining to the property bearing survey No.31 belonging to the original plaintiff. The defendants have put up the construction in such a way that almost the entire street was blocked and the entire construction was completed resulting in the shrinkage of the entire street to the extent and virtually prevented the plaintiff from having ingress and egress to the property to reach to her house and no other pathway except the way. That defendant No.2 purchased the property from defendant No.1 during the pendency of the suit and after purchase of the property by defendant No.2 has obstructed the right of pathway use by the plaintiff and obstructed the air and ventilation from the western side which she was using from the inception. When defendant No.2 has put up the plan for construction of three storied building before the Corporation and after sanctioned, she has started construction over the property and hence, the plaintiff filed the suit.

2.2 The trial Court, after considering the averments made in the suit, framed the following issues:-

(1) Does the plaintiff prove that the suit disputed construction intended to be carried out by the defendant would violate the easement rights of the plaintiff?

(2) Is it proved that the disputed construction would more particularly, leave no room for air and light as also a passage between the property of the plaintiff and the defendant, if allowed to be carried out in its existing form?

(3) Is it proved that the plaintiff himself has encroached on the open plot and has thereby, himself contributed to the State of Affairs?

(4) Is it proved that the suit is not maintainable in its present form?

(5) Is the plaintiff entitled to the reliefs sought for vide para – 6 of the plaintiff?

(5A) Is the plaintiff entitled to the reliefs sought for vide para 6-A of the plaint?

(5B) Is the plaintiff entitled to the reliefs sought for vide para – 6- A.A of the plaint?

(5C) Is the plaintiff entitled to the reliefs sought for vide para –6.A.A.A. of the plaint?

(6) What Judgment and What decree?

2.3 The trial Court has answered the aforesaid issues accordingly.

2.4 The trial Court, after considering the submissions and oral as well as documentary evidence, has dismissed the suit.

3. Being aggrieved and dissatisfied with the impugned judgment and decree, the appellant has filed the present appeal.

4. On 23.04.2007, this Court, while admitting the appeal, has passed the following order:-

“1. Mr. Chinmay Gandhi, learned Advocate appearing on behalf of the appellant has submitted that the learned Judge who has decided the suit had no jurisdiction t