The main legal point established is that prescriptive rights over easements need to be proven with uninterrupted and continuous use for a period of not less than twenty years, and the burden of proof lies with the party asserting such rights.

This second appeal is directed against the judgment and decree dated 28.6.1994 passed by the learned Assistant District Judge, Nagaon in Title Appeal No. 20 of 1981. The learned First Appellate Court dismissed the appeal affirming the judgment and decree dated 9.6.1991 passed by the learned Munsiff No.2, Nagaon in Title Suit No. 110 of 1979.

2. This appeal was admitted by this Court for hearing on the following substantial question of law :-

"Whether the right which the plaintiff had acquired by openly and continuously using the path way could be affected by a subsequent purchase of the land under Exhibit-6 which provides an access to the PWD road."

3. The appellant as plaintiff filed the aforesaid suit for declaration of right of passage based on easement over the pathway described in Schedule-A to the plaint and for eviction of the defendants, the respondents herein, therefrom. The appellant pleaded that they are using this pathway for ingress and outgress to their residence situated on the land covered by Dag No. 143 from the time of their predecessor. It was further pleaded that there is no alternative path to connect his residence with the P.W.D. Road. The respondents, however, denied the allegation and pleaded existence of alternative path. The learned Trial Judge, on appreciation of the evidence adduced by the parties, dismissed the suit. The learned First Appellate Court affirmed the judgment and rejected the appeal preferred therefrom. Hence this second appeal.

4. Answer to the question formulated is available in Section 25 of the Limitation Act, 1963. The provisions in the Section, to the extent relevant, are quoted below : "

25. Acquisition of easements by prescription - (1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air water-course, use of water, or other easement shall be absolute and indefeasible.

(2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested."

5. The words "shall be absolute and indefeasible" occurring in sub-section (1) make it clear that any right, title and interest created as an easement shall be absolute and indefeasible. Therefore, if in a given case it is proved that any right, title or interest has accrued in favour of a party, the same cannot be adversely affected on the ground that an alternative path exists or viable because of acquisition of adjoining land.

6. In the case at hand, both the Courts below did not favour the appellant with a decision that any such right, title or interest has accrued in his favour. This has been done on appreciation of the evidence on record and is beyond the scope of this Court seized with the matter in second appeal to relate to the evidence for re-appreciation. The evidence on record show that the respondents allegedly constructed a kutcha house on the pathway three years back i.e. sometime in 1977 and prior to that the disputed path was an agricultural land. It is a common practice that the villagers pass through agricultural land either to have access to their own agricultural land or to the main connecting pathway/road. Use of agricultural land for such purpose at best can be termed as permissive and not as of right to the detriment of the real/owner. Prescriptive right bas