Fulfillment of the essential condition of enjoying the right of easement by prescription for a period of 20 consecutive years as of right under Section 15 of the Indian Easements Act, 1882.

JUDGMENT

Dated this the 13th day of March, 2024 First plaintiff in O.S.No.229/2007 on the files of the Munsiff Court, Ponnani, is the appellant herein and he assails decree and judgment in the above case, as confirmed in A.S.No.92/2017 by the Additional District Judge, Tirur.

2. Heard the learned counsel for the appellant/1st plaintiff on admission.

3. I have perused the judgments of the trial court as well as the appellate court.

4. In this case, plaintiffs filed suit claiming easement by prescription over plaint B schedule pathway, asserting right of easement by prescription. The other side denied the same. 5. The trial court recorded evidence. PW1 was examined and Exts.A1 to A5 were marked on the side of the plaintiffs. CW1 was examined and Exts.C1 to C4 were marked as court exhibits. Finally, the trial court dismissed the suit, holding that the plaintiffs neither pleaded nor proved that they had acquired right of easement by prescription over plaint B schedule pathway. In paragraph No.12 of the trial court judgment, the learned Munsiff observed as under:

12. The plaintiffs neither pleaded nor proved that they have acquired right of easement by prescription over plaint B schedule. Admittedly 1st plaintiff has purchased property from Krishnan. Krishnan has direct access to Tippu Nagar Road on the Northern side of the property. Krishnan who is the predecessor in interest has no right of way through the plaint B schedule property. So, the plaintiffs cannot claim a right which his predecessor in interest did not have. If a person sues for establishing a right of easement over a pathway, he has to plead and prove that he enjoyed the same as of right for a period of 20 consecutive years within 2 years next before the institution of the suit. This is an essential condition that the right should have been enjoyed within 2 years next before the institution of the suit. No evidence has been adduced to prove the same.

6. Reading the trial court judgment, it could be seen that the required period of 20 years not completed by the plaintiffs, who allege use of plaint B schedule pathway by asserting easement by prescription. The first appellate court also dismissed the suit, holding so. Thus, this is a case, where plaintiffs asserted right of easement by prescription provided under Section 15 of the Indian Easements Act, 1882.

7. Insofar as right of easement by prescription, law is well settled. In the decision of this Court in Mercy v. Agnus Maria E.J. reported in [2023 KHC 828], wherein this Court set out essential ingredients to be complied under Section 15 of the Indian Easements Act, 1882. The same are extracted in paragraph No.15 of the above judgment as under:

"15. While precising the mandate of S.15 of the Easement Act, the following ingredients must be pleaded and proved:

(1) There must be pre-existing easement which must have been enjoyed by the dominant owner;

(2) the enjoyment must be peaceable;

(3) the enjoyment must be an easement;

(4) the enjoyment must be as of right; (5) the right must be enjoyed openly;

(6) the enjoyment must have been for a period of twenty years;

(7) the enjoyment for 20 years must have been without interruption; and (8) the enjoyment must be openly, peaceable, uninterrupted, as of right, as an easement, without interruption for twenty years, for the beneficial enjoyment of the dominant tenement."

8. Here, required period to complete 20 years neither pleaded nor proved. Therefore, the right claimed by the plaintiffs, asserting easement by prescription necessarily would fail, as rightly found by the trial court and the appellate court. Thus, the concurrent findings do not require any interference at the hands of this Court.

9. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus:

“2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order