Easementary rights require documented evidence of continuous and open use, and cannot be claimed solely on public utility; alternative routes diminish such claims.

Headnote:(A) Easement Act, 1882 - Section 15 - Claim for easementary rights through immemorial use of a cart way across private land - Plaintiffs claimed rights based on more than 50 years of uninterrupted use - First Appellate Court set aside Trial Court's decree due to non-consideration of material facts. (Paras 8, 10, 18, 38)

(B) Right of easement - Cannot be established solely on basis of general public usage - Existence of alternative routes affects claim for easement - Court found non-existence of 'ABC' path utilized by plaintiffs due to Ghataprabha Left Bank Canal. (Paras 27, 29)

Facts of the case:
The plaintiffs, claiming easementary rights for over 50 years on a contested boundary strip, faced opposition from defendants asserting exclusive possession and denying existence of the path. Issues raised included whether the immemorial use was sufficient to establish such rights and the admissibility of certain evidence.

Findings of Court:
The Trial Court had ruled in favor of the plaintiffs granting easementary rights, which was later overturned by the First Appellate Court due to lack of substantiated evidence of continuous use.

Issues: The primary issues were the validity of the claim for easementary rights based on immemorial user and the impact of established obstacles like the canal affecting access rights.

Ratio Decidendi: The appellate court emphasized that easementary rights must be clearly defined and cannot rely on fluctuating public use; mere claims without documented evidence and acknowledgment of alternative routes undermine the assertion of such rights.

Result: Appeal dismissed; judgment by the First Appellate Court upheld.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

1. Plaintiffs in O.S. No.89/2003 are before this Court in this appeal, being aggrieved by the judgement and decree dated 01.07.2006 passed in R.A. No.146/2005 on the file of Principal Civil Judge (Sr. Dn.), Jamakhandi (for short “the First Appellate Court”), by which the First Appellate Court while allowing the appeal filed by the defendants, set aside the judgement and decree dated 21.09.2005 passed in O.S. No.89/2003 on the file of Principal Civil Judge (Jr.Dn.) Jamakhandi (for short “the Trial Court”) and consequently dismissed the suit.

2. Case of the plaintiffs is;

(a) That they are the owners in possession of the land bearing R.S. Nos.89/1, 89/3 and 89/4 while defendant No.1 is the owner of land bearing R.S. No.88/3B. These lands are situated in Mareguddi village. The defendants also own land in R.S. No.195 of Bundi village.

(b) The subject matter of the suit is boundary strip situated between Mareguddi and Budni villages, which is commonly used as a cart way by the owners of the adjoining lands as well as the public at large. That the said boundary strip which runs in an east - west direction, with a hedge, is shown by letters “ABC” in the hand sketch annexed to the paint.

(c) That the said “ABC” cart way has been in continuous, peaceful, open, and uninterrupted use by the plaintiffs for more than 50 years, as such they have acquired right of usage of the said cart way at “B and C” by virtue of immemorial user.

(d) That the defendants without having any right are interfering with plaintiffs’ use of the said strip, as a cart way are causing obstruction to the plaintiffs at point “B” and “C” in using the said strip for access to Mareguddi – Shirol Road.

(e) Contending as above, the plaintiffs have sought for the following relief:

a. That declaration be made that the plaintiffs have obtained a right of easement at ‘B.C’ in the hand sketch map by immemorial user and on consequential basis.

b. A decree of permanent prohibitory injunction may kindly be granted in favour of the plaintiffs restraining the defendants and their agents and anybody else on behalf of them from interference and obstruction of use of “ABC” cart passage on both village boundary strips as an easementary right.

c. Costs of the proceedings may kindly be given to the plaintiffs from the defendants.

e. Any other just and equitable reliefs may kindly be give to the plaintiffs to meet the ends of justice and equity as the Hon’ble Court deems fit and proper reliefs from the defendants.

d. The liberty to amend plaint is deserved with prior permission of the Hon’ble Court by the plaintiffs.

3. Defendant Nos.1 and 2 in their written statement denying the plaint averments with regard to the existence of a cart way on the line “ABC” mentioned in the plaint hand sketch, contended;

(a) That the plaintiffs have suppressed of true and material facts. It is claimed that the area shown between the letters “B and C” in the plaint hand sketch absolutely belongs to the defendants and is in their exclusive possession. That no cart way as claimed by the plaintiffs ever existed at anytime, as such the plaintiffs’ claim of using the said cart way since time immemorial is denied.

(b) That land in R.S. No.88/2B was purchased by defendant No.1 in the year 1986. Ever since then the said land is in his exclusive possession without anyone else having any claim or right over the same.

(c) That the land in Sy.No.194-195 are the ancestral properties of the defendants. That the said land is sloping towards north in order to preserve the soil and for the purpose of cultivation a mud bund running east to west having height of 5 to 6 foot has been constructed. That half of land in RS No.88/2B is sloping towards south and the other half towards the north. That if a path way is provided between these properties in Sy.Nos.195 and 88/2B, there is a possibility of creation of a stream causing permanent damage to the mud bunds.

(d) Referring to the hand ske

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2025 Supreme(Online)(Kar) 19982

Easementary rights require documented evidence of continuous and open use, and cannot be claimed solely on public utility; alternative routes diminish such claims.

Cases Referred (1)