Continuous and uninterrupted use is essential for claiming easement by prescription, and the addition of new parties to the suit can affect the enforceability of easementary rights.

Surjit Singh, J.

1. Heard and gone through the record.

2. Suit was filed by the appellant Tirath Ram (now deceased and represented by his L. Rs.), seeking a declaration that he had easementary right of necessity as also of prescription to pass through the vacant site, having 7.5 feet width, lying in front of the house of respondents-defendants and also for mandatory injunction, directing the defendants to remove the obstruction caused by them on a portion of that vacant site (hereinafter called path), whereby the width of that path had been reduced to 2.5 feet and to restore the width to its original dimension and also for permanent prohibitory injunction restraining the defendants-respondents from causing any obstruction in the said path. It was stated that the plaintiff had been using the aforesaid path since the times of his forefathers for going to his house and such user was going on for the last more than sixty years. It was alleged that the path had been used continuously without any objection or obstruction. It was further stated that in August, 1986, defendants reduced the width of that path in front of their house by constructing some stairs. The width was alleged to have been reduced to 2.5 feet. The suit was filed in June, 1987. Initially, only one of the respondents, namely Sansar Chand was impleaded as defendant. On the objection having been raised by said Sansar Chand that two of his brothers were joint owners of the house with him, in front of which the alleged path existed, they were necessary party and the suit was bad for their non-joinder, the appellant-plaintiff impleaded Sansar Chand's brothers, respondents Dharam Paul and Vijay Kumar, as defendants in the year 1991. Plaint was accordingly amended and it was stated that all the defendants had caused obstruction and reduced the width of the passage by constructing the stairs in August, 1986.

3. Respondents-defendants contested the suit. They denied that the plaintiff had the right to use the vacant site lying in front of their house as passage. It was alleged that passage for reaching the village common path was available to the plaintiff from the other side of his house and that the width of that passage was equal to the width of the vacant site lying in front of the plaintiff's house. It was claimed that the vacant site lying in front of the house of the defendants was used by them as exclusive approach for their own house and that no other person including the plaintiff had the right to pass through that site.

4. Trial Court framed various issues on the pleadings of the parties and tried the suit. At the end of the trial, it was held that the plaintiff had acquired an easement of passage by prescription and also he had the right to use the passage as an easement of necessity.

5. Defendants went in appeal to the Court of District Judge. District Judge has reversed the finding of the trial Court and set-aside the judgment and decree of the trial Court. Consequently the suit of the appellant has been dismissed. The first appellate Court has held that ingredients of easement of necessity have not been pleaded. It has further been held that alternate passage is available to the plaintiff and for this reason also he cannot claim the passage by way of easement of necessity. Dealing with the plea of acquisition of easementary right by prescription the first appellate Court has held that as per requirement of Section 15 (last sentence) of the Easement Act, 1882, the plaintiff is required to show that he has been enjoying the easement within two years next before the institution of the suit and in the present case two of the defendants having been impleaded in the year 1991 and the alleged obstruction having been caused in August, 1986, the requirement of Section 15 (last sentence) could not be said to have been met. The first appellate Court has relied upon Section 21 of the Limitation Act, to come to the conclusion that as against the newly added defendants,