The claim for an easementary right of way requires proof of usage 'as of right' and acknowledgment of the opposing party's ownership in order to be valid under the Indian Easements Act, 1882.

JUDGMENT :

A.C. Behera, J.

This 2nd Appeal has been preferred against the confirming Judgment.

2. The appellants of this 2^nd Appeal were the defendant Nos.1 & 2 before the Trial Court in the suit vide T.S. No.308 of 1984.

The respondent No.1 of this 2^nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.308 of 1984 and he was the respondent No.1 before the 1^st Appellate Court in the 1^st Appeal vide T.A. No.20 of 1987.

The respondent Nos.2 to 6 of this 2^nd Appeal were the defendant Nos.3 to 7 before the Trial Court in the suit vide T.S. No.308 of 1984 and they were the respondent Nos.2 to 6 before the 1^st Appellate Court in the 1^st Appeal vide T.A. No.20 of 1987.

The suit of the plaintiff vide T.S. No.308 of 1984 was a suit for declaration of easementary right of way over the suit Plot No.324 under Hal Khata No.135 in Mouza Badagaon under Balikuda Police Station in the District of Jagatsinghpur and for permanent injunction.

3. The case of the plaintiff before the Trial Court in the suit vide T.S. No.308 of 1984 was that, Plot Nos.321 and 326 are his house and homestead properties. Suit Hal Plot No.324 is a Kaccha Road, which joins his above homestead plot Nos.321 & 326 and the village road. He (plaintiff) and his family members are using the said suit Plot No.324 as a road in order to reach in their village main road from the time of their ancestors i.e. since time immemorial. Their cattle, bullock-carts are passing through suit plot No.324. At times cars and trucks etc. comes through that suit plot No.324 to his house. There is no other outlet from his residential house situated over Plot Nos.321 and 326 to the village main road except the suit Plot No.324. By the continuous, uninterrupted and peaceful using to the suit plot No.324 as road, his easementary right of way on the suit plot No.324 has already been created/acquired.

In the Hal Settlement, the suit Plot No.324 has been recorded in the name of the defendant Nos.1 and 2 with Kisam thereof as road. The suit Hal Plot No.324 corresponds to Sabik Plot Nos.124,125,126,128,129 & 130. In the year 1953. When dispute arised among the owners of sabik Plot Nos.124, 125,126,128,129 & 130 concerning the use of the same, then, there was a Faisalanama and that Faisalanama was scribed by Ghanashyam Mohanty of village Kania, in which, it was written that, family members of the plaintiff have right to use the suit plot No.324 as a x road. The length and breadth of the suit road is 200 links 10 links. The defendant No.1 was entrusted with the task for recording the suit properties in the consolidation in favour of both the parties, but, he had managed to record the same in the name of the defendant Nos.1 and 2. In spite of such recording of the suit Hal Plot No.324 in the name of the defendant Nos.1 and 2, he (plaintiff) and his family members have been using the suit plot No.324 as a road as before.

Before filing the suit, the plaintiff had applied to get electric connection to his residential house on plot Nos.321 & 326 by fixing poles on suit Plot No.324, to which, the defendants objected, for which, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.308 of 1984 against the defendant praying for declaration his easementary right of way over the suit plot No.324 and to injunct the defendants by restraining them (defendants) permannently from creating any sort of disturbance in the use of the suit plot No.324 by him (plaintiff) and his family members as road/way to his house and in alternative to declare him (plaintiff) as a owner of the suit plot No.324.

4. Having be