The central legal point established in the judgment is the interpretation and application of the Indian Easements Act, 1882, specifically Section 15 and Section 17, to determine the acquisition of easementary rights and the defendant's obstruction.

1. This appeal has been preferred by the defendant who has lost in both the courts. This Court vide order dated 02.11.1995 while admitting the appeal had formulated following substantial questions of law:-

“1. Whether in the facts and circumstances of the case the courts below were justified in granting decree in favour of the plaintiffs on the strength of the easementary right when the proper pleadings regarding easement and user were not there?

2. Whether in the facts and circumstances of the case first appellate Court was justified in dismissing the appeal of the defendant, without considering the pleadings and the total evidence of the parties, merely on the strength of map?”

2. Facts giving rise to filing of the appeal briefly stated are that the plaintiffs filed the suit seeking relief of declaration, permanent injunction as well as mandatory injunction. The claim in the suit is based on the ground that the plaintiffs and defendants are neighbours. On the northern side of the plaintiffs' house a passage which is 5 feet in width is situate. The aforesaid passage is being used by the plaintiffs as well as by the residents of the locality for past several years. However, the defendant No.1 caused obstruction in the plaintiffs' right of way over the passage in question in respect of an area show in yellow and pink colour in the plaint map. It is further pleaded that defendant has encroached an area admeasuring 1 feet X 19 feet Accordingly, the suit seeking relief of declaration that plaintiffs have acquired easementary right to use the passage in question was filed. The plaintiffs also sought the decree for mandatory injunction for removal of encroachment as well as permanent injunction restraining the defendants from causing obstruction over the right of the plaintiffs to use the passage.

3. The defendant No.1 filed the written statement in which the plaint map was denied. It was further pleaded that the passage in question, in fact, is not in existence. It was also pleaded that the area marked with red colour was kept open for the purpose of 'Nistar' of plaintiffs and defendant No.1. The defendant No.1 also denied that he has made any encroachment on the passage in question. The defendant No.2 in her written statement denied the averments made in the plaint and stated that she has not made any encroachment on the passage in question.

4. The trial Court vide judgment and decree dated 24.8.1994 by taking into account the statement of plaintiff who was examined as PW.1, Shivnarayan (PW.2), Ashok Kumar (PW.3) and Sharif Shah (PW.4), held that the passage in question is in existence between the houses of the plaintiffs and the defendants which is 5 feet in width. The trial Court further held that the defendant No.1 in his statement has admitted that the passage of 5 feet in width is in existence. It was further admitted by defendant No.1 that in another civil suit a map (Exhibit-D-2) was filed which shows that passage of 5 feet in width is in existence between the houses of the plaintiffs and defendants. The trial Court on meticulous appreciation of evidence, recorded a finding that defendants are causing obstruction in the right of the plaintiffs to use the passage in question. The trial Court granted decree for declaration that plaintiffs have the right to use the passage of 5 feet in width. However, instead of granting decree of mandatory injunction the trial Court held that the aforesaid passage shall be available for ingress and egress adjacent to the courtyard of the defendant No.1. In appeal, the decree passed by the trial Court was affirmed.

5. Learned counsel for the appellant submitted that there is not specific pleading with regard to right of easement and, therefore, the courts below have committed an error of law in decreeing the suit filed by the plaintiffs. On the other hand, learned counsel for the respondents submitted that the matter stands concluded against the appellant by concurrent findings of fact