The main legal point established in the judgment is that a specific plea of easementary right by prescription, when pleaded and framed as an issue, can lead to the acquisition of such right based on continuous usage, as per the Indian Easements Act, 1882.

Tarun Agarwala, J.—The plaintiff filed a suit for a permanent injunction restraining the defendant from placing any obstruction in the right of passage on the land in dispute and to remove the obstruction on the disputed rasta. The plaintiff alleged that he had been using the said passage continuously for the last 30 years and that the rainwater was also flowing from the disputed piece of land for the last 30 years and that he had been allowed ingress and egress on the land in question for the last 50 years. The plaintiff alleged that in the last week of December, 1970, the defendant placed obstructions on the land in question as a result of which his right of passage to his shop was blocked. The flow of rainwater from his shop was also obstructed. The plaintiff requested the defendant to remove the obstructions. Since the defendant failed to remove the obstruction, the plaintiff filed a suit for a permanent injunction. The defendant in his written statement contended that the plaintiff had no right of flow of the water on the land in question nor had any right to use the land as a passage. The defendant had full right to place the obstructions on the land in question.

2. Before the trial court, it has come in the evidence that the plaintiff had been using the land as a passage continuously for a period of 30 years and that the rainwater from his shop also flowed from the passage in question on account of the natural slope of the land. It has also come in the evidence that the defendant had only purchased the land in July, 1970 and within six months, thereafter, had placed the obstructions.

3. The trial court after framing the issues decreed the suit and held that the plaintiff had acquired a right of easement by prescription for the flow of the rainwater from his shop and also acquired a right of passage over the land in question. The trial court further directed the defendant to remove the obstructions on the disputed rasta. Aggrieved by the decision of the trial court, the defendant filed an appeal, which was also rejected by the appellate court. Consequently, the defendant-appellant has now preferred the second appeal.

4. I have heard Sri B. D. Mandhyan, the learned counsel for the defendant-appellant and Sri Pankaj Agarwal, holding the brief of Sri V. K. Gupta, the learned counsel for the plaintiff-opposite party.

5. Sri B. D. Mandhyan the learned counsel for the appellant contended that the plaintiff in his plaint had only pleaded that he had acquired a right by customary easement, whereas the trial court decreed the suit as easementary right by prescription. Customary, rights and prescriptive rights are two different kinds of easmentary rights and a plea of a customary right cannot be allowed to succeed on the basis of a prescriptive right. The learned counsel for the appellant further submitted that the suit can only be decreed on the basis of pleadings made in the plaint. In the present case, the plaintiff had pleaded a case of customary right and not easmentary right by prescription and therefore the trial court as well as appellate court committed an error in decreeing the suit on the basis of prescriptive right. In support of his submissions, Sri B. D. Mandhyan, the learned counsel for the appellant has relied upon a decision in Mahadeo Vir and others v. Smt. Lalita Devi, AIR 1972 Pat 479, in which it was held that a plea of customary right cannot be allowed to be succeeded on the basis of a prescriptive right. The learned counsel for the appellant has further relied upon AIR 1993 Ker 91, in which it has been held that the pleading should be specific and precise in a case where the plaint is based on easmentary right. The learned counsel for the appellant further submitted that the plaintiff could not be given a right of easement to flow dirty water on the land in question inasmuch as it creates a nuisance and in support of this submission, has relied upon a decision of this Court in Prabhu Narain S