Easement rights require proof of ownership of both dominant and servient tenements; mere claims without evidence of necessity or uninterrupted use are insufficient.

JUDGMENT :-

1. The appellants/defendants have impugned the judgment and decree of the learned IIIrd Additional District Judge, Nanded, passed in Regular Civil Appeal No.188 of 1991 dated 10.08.1993.

2. The parties will be referred to as their original status. The appellants will be referred to as the 'defendants', and respondents will be referred to as the 'plaintiffs'.

3. The brief facts were that the plaintiff's husband and father and defendant No. 1 were the real brothers. They had partitioned their properties with a third brother. The plaintiffs have received the extreme northern share, and the defendants have the southern portion of their ancestral property in partition. They did not deny the partition and three-foot lane between their houses. The plaintiffs had a case that they were enjoying their respective shares after the partition. However, towards the west of their houses, there is a way measuring 8 ft x 15 ft to reach the municipal road and then to the main road. It will be referred to as a disputed way. However, in December 1998, the defendants started constructing their house. Their construction was in violation of the Town Planning Act and Rules. They tried to encroach upon the disputed way and closed their use of it. The Municipal Council visited the spot of the incident and directed them to stop the illegal construction. The plaintiffs have come up with a case that they have a right of easement of necessity to (3) use the disputed way shown in the map and have sought perpetual injunction against the defendants from constructing any wall or blocking the disputed way.

4. The defendants contested the suit. They have barely denied the plaint and literally have no specific case.

5. The Court of First Instance had dismissed the suit; however, the First Appellate Court allowed the suit. Against the said judgment, the defendants are before this Court. This Court admitted the appeal on 10.11.1994 with the following order :

"Heard.

Admit. Ground Nos. 3 to 7 raise substantial questions of law."

6. Ground Nos. 3 to 7 have been reproduced as substantial questions of law as follows :

1. That the learned appellate Court has not considered that the plaintiff's case does not prove and satisfy the existence and basic ingredient as required by Sec.4 of the Indian Easement Act viz. necessity of use the disputed passage for the beneficial enjoyment of that property and dominant heritage over the defendant's property.

2. That the appellate Court has not considered the important aspect that the plaintiffs have admitted that the existence of enterence of northern side to their house as well as the existence of public road to the Northern side of their house.

3. That the appellate Court has not considered the evidence brought on record by the parties properly and made (4) an error in deciding the suit and the plaintiffs, by reversing the decree passed by the trial court.

4. That the appellate Court has not considered that plaintiff no.2 and their witness P.W. 3 in the evidence, admitted the fact that the disputed passage i.e. Municipal House No.7-3- 14 C.T.S. No.1389, is purchased by one Mr. Anwar and the same passage is now in possession of Mr. Anwar and therefore the plaintiffs have no right or cause to file this suit.

5. That the Appellate Court has not considered that the plaintiffs have failed to prove that they are using the disputed property as right of way continuously for twenty years U/sec. 15 of the easement Act for the use and beneficial enjoyment without any interruption."

7. Heard the respective counsels at length.

8. Learned counsel for the appellant would submit that the candid admission of the plaintiffs that the space, which was claimed to be a road to approach the municipal road, is owned by one Anwar. Therefore, the plaintiffs cannot claim the easementary right against the defendants. There was no iota of discussion in the Appellate Court's judgment that one Anwar was the owner of the same strip of land, which is claimed to be