1982 Supreme(MP) 652

IN THE HIGH COURT OF MADHYA PRADESH
P.D. MULYE, J.
Suleman - Appellant
Vs.
Devilal - Respondents
S.A. No. 37 of 1973 (I)
Decided On : 01-12-1982

Headnote:Easements Act, 1882 – S. 15 – acquisition of easementary right under – minimum prescribed period of use not established – right not acquired.

        Short Note

       1. This second appeal filed by the plaintiff is directed against the judgment and decree dated 11 – 11 – 1972 passed by the First Additional District Judge, Ratlam in Civil First Appeal No. 29 – A of 1969, whereby he has maintained the judgment and decree of the trial Court which had dismissed the plaintiff's suit for possession in respect of the stair case adjoining the Otla 4’ in width and also for permanent injunction restraining the defendants from obstructing the flow of the rain water through that portion and also claiming that right on the basis of easement of necessity.

       2. The learned counsel for the appellant frankly submitted that he was contesting the claim of the plaintiff on the basis of title over the disputed property as the plaintiff has failed to substantiate his case on that point. However, he contended that considering the position of the construction made out by the defendants when seen through the photographs as also from the map, it would appear that the plaintiff was using this open land and thus acquired the right of easement. He also submitted that through this very passage rain water was flowing and on account of the obstruction put up by the defendants, the flow of rain water is obstructed causing damage to the plaintiff's house.

       3. On the other hand the learned counsel for the respondents after taking me through the evidence contended that though there is no dispute about the Chabutra, it was necessary for the plaintiff to prove that he had acquired the right of easement as contemplated by section 15 of the Easements Act. As from the evidence of the plaintiff himself, it is clear that the temple was constructed about 15 years before the institution of the present suit. He also submitted that it was necessary for the plaintiff to prove that he was exercising this right for 20 years continuously uninterrupted as provided by that section. Further according to the learned counsel it was necessary for the plaintiff to prove his right of easement by leading positive, convincing and reliable evidence and in support of his submission the learned counsel passed reliance on the Supreme Court decision reported in 1972 MPLJ 102 (Sheikh Nur Mohammad v. Sheikh Bhullu).

       Held : After hearing the learned counsel and after going through the record I have reached the conclusion that there is no merit in this appeal, which deserves to be dismissed on this short ground alone that the plaintiff has miserably failed to prove that he has acquired any right by way of easement failed to prove the same as required by law. From the evidence of the plaintiff himself who is examined as PW 4. It is clear that the disputed land never belonged to him that he never enjoyed the usufruct of any easmentary right thereon and the minimum prescribed period has also not been established to acquire the right of easement. 1972 MPLJ 102 referred to. Appeal dismissed.