IMPORTANT POINT
In a suit claiming perspective right of way, the plaintiff has to schedule the servient heritage separately in the suit.

JUDGMENT :

The substantial question came up for consideration is the permissibility of granting a decree based on prescriptive right of way without scheduling the servient heritage and the non compliance of mandate under Order VII Rule 3 CPC. Both the courts below failed to notice the non incorporation of servient tenement, without which a decree of prescriptive right of easement granted. The basic principle governing easement and grant of a decree in compliance of Order VII Rule 3 CPC not seen followed by either the trial court or the first appellate court.

2. There are only two schedules. 'A' schedule is the property of plaintiffs and 'B' schedule is the property of defendants. The property over which the way or the easement claimed is not separately scheduled as mandated under Order VII Rule 3 CPC. The reliefs sought in the plaint are extracted below for reference:

1. Directing the defendant to surrender such part of his southern part of his land to the existing way as agreed by him to make the way to a width of 9 feet and

2. If the court finds that the plaintiff is not entitled for the above relief directing the defendant to remove the enclosing made by the defendant on his eastern boundary wall by which the defendant closed the access of the plaintiffs to the existing western mud road by way of a mandatory injunction within a specified period as may be directed.

3. To award the cost of this suit.

4. To award such other relief as the court deems fit in the circumstances of the case.

3. The suit is valued as under:

4. It is not clear whether the suit is one for specific performance or claiming prescriptive right of easement. Both the courts below proceeded with the suit under a wrong impression that the suit is one for claiming prescriptive right over a way. For claiming prescriptive right of easement, the servient heritage over which the claim is raised should be specifically and separately scheduled in the plaint so as to grant a decree in accordance with the mandate under Order VII Rule 3 CPC.

5. The relief sought in the plaint is to enforce the part of contract agreed by the defendants. If it is a suit for enforcement of a contract, there is no occasion for granting a relief based on prescriptive right of easement. The mandatory injunction claimed by the plaintiffs is based on the first relief sought in the suit for directing the defendants to surrender the agreed width of land to the existing way. Both the courts below granted a relief based on prescriptive right of easement, though the suit is one for specific performance of what is agreed by the defendants.

6. It is well settled that there cannot be inconsistent pleas by the plaintiffs. If any inconsistent plea was raised, the plaintiff has to confine his case to one among the inconsistent pleas before the commencement of trial. Further, no decree of prescriptive right can be allowed without ascertaining the length, width and alignment of way, for which there should be a separate schedule over which the way is claimed. The inclusion of entire property owned by the defendants is not sufficient, unless the easement is claimed over the entire property of the defendants.

7. The decree and judgment of both the courts below cannot be sustained, liable to be set aside and I do so.

The appeal is allowed. The decree and judgment of both the courts below are set aside.

The suit is dismissed. No costs.