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2007 Supreme(MP) 1011
IN THE HIGH COURT OF MADHYA PRADESH
A. K. SHRIVASTAVA, J.
Ramcharan and Ors.
Versus
Ram Asrey.
Second Appeal No. 356 of 1993
Decided on : 9-10-2007.
M. L. Jaiswal, Sr. Advocate, Amit Bajpayee, for Appellants.
The central legal point established in the judgment is the acquisition of easementary right under the Indian Easements Act, 1882, and the application of the conditions for acquiring easement by prescription.
Headnote:
Easementary Right - Property Dispute - Indian Easements Act, 1882, Section 4, 15, 19 - The court discussed the plaintiff's claim of easementary right over the servient heritage, emphasizing the legal provisions of the Indian Easements Act, 1882, and the conditions required for the acquisition of easement by prescription. The court analyzed the evidence presented, including the plaintiff's testimony and the defendants' written statement, to determine the plaintiff's entitlement to the easementary right. The court affirmed the first appellate court's decision, concluding that the plaintiff had acquired the easementary right over the disputed land.
Fact of the Case:
The plaintiff claimed ownership and possession of a house and sought an injunction to restrain the defendants from interfering with his easementary right over the servient heritage. The defendants denied the plaintiff's claim, contending that the disputed property was owned and possessed by them.
Finding of the Court:
The court found that the plaintiff had acquired an easementary right over the disputed land, as evidenced by his peaceful and uninterrupted use of the servient heritage for over 20 years. The court rejected the defendants' arguments and upheld the first appellate court's decree in favor of the plaintiff.
Issues: The main issue revolved around the plaintiff's claim of easementary right over the servient heritage and the defendants' denial of such right. The court also addressed the ownership and possession of the disputed property, as well as the applicability of the Indian Easements Act, 1882.
Ratio Decidendi: The court relied on the provisions of the Indian Easements Act, 1882, particularly Sections 4, 15, and 19, to determine the acquisition of easementary right by the plaintiff. The court emphasized the conditions for acquiring easement by prescription and the essential characteristics of an easement.
Final Decision: The court dismissed the appeal and affirmed the first appellate court's judgment and decree in favor of the plaintiff, holding that the plaintiff had established his easementary right over the disputed land.
2. In brief the suit of plaintiff /respondent is that he is the owner of house No. 5 situated in village Bamhori, Tahsil Loundi and is also possessing the same. The four boundaries of the said house have been mentioned in the map attached to the plaint. Earlier this house was owned and possessed by plaintiff's father. In the said house there is a door facing on the southern side. Later on, there was a partition in the family of plaintiff and the said house has fallen in his share. The door of the said house opens on the southern side and the open land attached to the said door is being used by plaintiff peaceably in his easementary right as way to go to his house. Except the said land (servient heritage) there is no alternative way available to the plaintiff to go to his house (dominant heritage). On the southern side of the house of plaintiff, land bearing Khasra No. 38 is of defendants and the distance in between plaintiffs house and Khasra No. 38 is 50 feet. The plaintiff uses 29' x 19' land of defendants (servient heritage) as way to go to his house (dominant heritage) for last 40 years. This land (Servient heritage) has been shown as Aa, Ba, Sa, and Da in the plaint map. It has also been pleaded by the plaintiff that the defendants are trying to instal fencing by planting bushes (Bari) on the servient heritage and are also trying to possess the same. The plaintiff opposed and objected the said action of the defendants on the pretext that on account of the said fencing his way and approach to his house will be closed, but the defendants did not agree and are trying to take possession of the servient heritage. It has also been pleaded by the plaintiff that on the said Aa, Ba, Sa and Da land which is on the southern side of his house, he planted trees of lemon, Babool and Chilla. The plaintiff has thus filed a suit for injunction on the basis of the easementary right praying that the defendants be restrained from interfering with the plaintiffs right of easement on the servient heritage and further they be restrained from possessing the servient heritage (suit property).
3. The defendants, who are 3 in number, filed a joint written statement and pleaded therein that the dominant heritage is neither of plaintiff nor of his father. The said house was never in possession of plaintiff or his family members. The servient heritage has not been ever used by the plaintiff or his father as way. However, they have admitted that they are the Bhumiswami of Khasra No. 38 but denied the factum of distance of 50 of the house of plaintiff (dominant heritage) and Survey No. 38. It is further denied in the written statement that servient heritage was ever used by plaintiff as his way nor he carried his cattle from the servient heritage. The land was never used either by plaintiff or his family members as way, therefore, the question of acquiring easementary right does not arise. The disputed property is owned and possessed by the defendants and they have planted the trees on it. It is incorrect to say that plaintiff has planted those trees.
4. In the special plea it has been pleaded by the defendants that on the northern side of Khasra No. 38 there is land bearing Khasra No. 36 and on this neither plaintiff nor his father is having any right, title or interest. The said land (Khasra No. 36) is being owned and possessed by Govind Das and Devidayal. The entire Survey No. 38 is being cultivated by the defendants. The house, which the plaintiff is saying of his own, is of one Shobharam Pathak and on the southern side of the said house the land khasra No. 38 of defendants is situated. According to defendants, the plaintiff is residing in house No. 47. Except house No. 47, he is not having any other
