A claim of easement by prescription requires evidence of open and continuous use for over twenty years; failure of the appellate court to appreciate this led to error.

CAV JUDGMENT

1. This appeal is filed by the plaintiff challenging the judgment and decree dated 03.12.2005 passed in RA No.1 of 1980 on the file of the Civil Judge (Sr.Dn) Haveri, allowing the appeal and setting aside the judgment and decree dated 09.11.1979 passed in OS No.85 of 1976 on the file of the Munsiff Haveri, decreeing the suit of the plaintiff.

2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

3. The plaint averments are that, the plaintiff claims to be the owner of the suit schedule 1-A property bearing Sy.No.40/1 measuring 10 acres, and the defendants 1 to 5 are the owner in possession of the land bearing Sy.No.45/2+3 measuring, 13 acres, 02 guntas of Siddadevapura Village, Haveri District. It is stated in the plaint that, the land belonging to the plaintiff is situate towards East of the land of defendants. It is also stated that, the plaintiff and his brothers have purchased the suit schedule land as per registered Sale Deed dated 26.04.1973 from one Siddalingappa Choushetti. After the partition in the family, schedule property-1-A, was allotted to the share of the plaintiff. The land belonging to the defendants is on the Western side of the plaint 1-A schedule property. Plaintiff has annexed the hand sketch map. Suit schedule property 1-A and 1-B properties are situate adjacent to each other. It is also stated that North of 1-B property, bearing Sy.No.44 is situate as part of the land belongs to APMC yard, Haveri. It is also stated that, the plaintiff has purchased Plot No.24 in the above APMC yard, and has constructed the building. The width of the road, is about 60x70. It is further averred in the plaint that, the plaintiff being utilized the service of the road as shown in the Map-PQRO and QSMN of plaint sketch to reach the suit land bearing Sy.No.40/1 and thereafter, enter the schedule 1-B property through the boundaries shown in the Map as A, B, B1 and A1 (Water Canal). Thereafter, along with other pedestrians of neighboring land, the plaintiff is using N, N-2, B and B-2, portion to reach plaint 1-A schedule property. The plaintiff never had any obstruction to use the said path way. It is also stated that, the land bearing Sy.No.41 and to the East of Sy.No.41/1 and Sy.No.41, a big water source shown in the map as TCD is situate from time immemorial.To the side of the aforementioned water source, towards the South, there is a way to the plaintiff’s shown in the hand-sketch as N-1, B-1, B-2 and A-2 to reach his land. The plaintiff has used the same for taking the agricultural implements through Bullock carts regularly, however, the defendants have tried to close the said pathway and as such, it is stated in the plaint that, the plaintiff has perfected his title to the suit way as easement by prescription and accordingly, filed OS No.85 of 1976, seeking relief of declaration that the plaintiff has got right of easement by prescription in respect of the suit way namely, N, B, B-2 and N-2 as shown in the plaint sketch to reach the schedule land bearing Sy.No.40/1 of Siddadevapura Village and also sought for consequential relief against the defendants.

4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that, the plaintiff has no right of way as per the plaint sketch shown as N, B, B-2 and N-2 and there is no entry from point NM of the sketch to the schedule property. It is also stated in the written statement that, a w