A claim for easement by prescription requires clear proof of uncontested use for a specified duration, as per statutory mandates.

J U D G M E N T

This appeal arises out of the reversal of the judgment and decree of the II Additional Munsiff Court, Ernakulam, in O.S No.35/2007 by the II Additional Sub Court, Ernakulam, in A.S No.112/2010.

2. The brief facts necessary for the the disposal of the appeal are as follows:-

The appellant/plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from interfering with the plaintiff’s right over the plaint B schedule pathway, causing any damage in the existing water pipe connection passing through the plaint B schedule pathway and also doing any construction or obstruction in the plaint B schedule pathway. The plaintiff claimed that he has got a right of easement by prescription over the plaint B schedule property, since he was using the same from 1972 onwards. The defendants entered appearance and contested the suit, resisted the plaint by contending that the plaintiff has no absolute right over the plaint B schedule pathway and the plaintiff was having an alternate entry into the plaint A schedule property through the northern side of the property. Subsequently, the plaint was amended by the plaintiff by incorporating the further pleading that the plaintiff’s permissive right over the plaint B schedule property shall not be interfered and that the property described in the plaint B schedule is a Nattuvazhi in the village records. On behalf of the plaintiff, Exts.A1 to A3 were produced and PW1 was examined. On behalf of defendants, DW1 was examined. Exts.C1, C1(a), C2 and C2(a) are the reports and rough sketches of the Advocate Commissioner. The trial court on the basis of the oral and documentary evidence came to the conclusion that the plaintiff has proved the right of easement by prescription. Accordingly, decreed the suit. Aggrieved, the defendants preferred A.S No.112/2010 before the II Additional Sub Court, Ernakulam. The First Appellate Court reversed the findings of the trial court by holding that the permissive right of the plaintiff over the property cannot crystallize into a right of easement by prescription and accordingly, modified the judgment and decree of the trial court. But, however, granted an alternate way as provided under Ext.C2(a). Aggrieved by the reversal of the judgment and decree by the First Appellate Court, the present appeal is preferred raising the following substantial questions of law:-

Was the First Appellate Court right in having interfered with the decree of the trial court on the ground that the appellant/plaintiff failed to prove that the user of the pathway was “as of right”, when it is evident that the way in question was being used continuously for more than the prescriptive period?.

3. Heard Shri.P.Sivaraj, the learned counsel appearing for the appellant and Shri.M.S.Unnikrishnan, the learned counsel appearing for the 1^st respondent.

4. The learned counsel appearing for the appellant contended that the First Appellate Court erred egregiously in reversing the findings of the trial court and finding that the right over the plaint B schedule pathway is only a permissive right and therefore the plaintiff does not have any prescriptive right of easement. The learned counsel for the appellant further pointed out that, the admission of DW1 while cross examination would clearly cut to the root of the case projected by him. The cause of action for filing the suit arose only when there was an attempt to block the plaint B schedule pathway and therefore, the right of the plaintiff from 1972 was not considered in correct perspective by the First Appellate Court.

5. Per contra, Shri.M.S.Unnikrishnan, the learned counsel appearing for