Easementary rights require substantive proof of continuous use; claims must be supported by appropriate pleadings.

1 Heard the learned counsel appearing for the Appellant. The Appellant is the original Defendant No.1. The Respondent Nos.1 to 3 are the original Plaintiffs.

2 According to the case of the original Plaintiffs, they are the owners of the house property bearing Grampanchayat Property Nos. 25, 36, 37 and 38 of village Bhose, Taluka Miraj, District Sangli. It is alleged that there are five windows on the ground floor of the said house and the five windows on the first floor of the said house. It is alleged that there is Property No.380 on the southern side of the said house which is a property in the nature of a passage. It is alleged that the Plaintiffs have right of easment to enjoy the air and light from the strip of land having width of 5 and length of 40 feet. It is contended that the Plaintiffs have right to discharge the water on the said strip of land. It is alleged that the house was constructed by the Plaintiffs in the year 1954. It is alleged that the right of easment was enjoyed by the Plaintiffs uninterruptedly from the year 1954 i.e. for a period of more than twenty years before filing of the suit. It is alleged that in the January 1980, the Appellant constructed a tin shed abutting the southern wall of the house of the Plaintiffs and as a result of the construction of the said shed, the light and air of the Plaintiffs has been obstructed and even the right to discharge of the rain water has been affected. Therefore, a suit for declaration of existence of easmentary right and mandatory injunction for removal of the shed erected by the Defendant No.1 was filed.

3 The suit was contested by the Defendants by filing a written statement. It was contended that the building of the Plaintiffs was constructed much later after the year 1954 and it was constructed ten years before filing of the written statement. It was contended that in place of the shed in existence today, there was a house made up of mud which was in existence prior to construction of the house by the Plaintiffs. The said house made up of mud collapsed and therefore, on the same place a tin shed has been constructed. The existence of right of easment was denied by the Defendants. The trial Court dismissed the suit by deciding all the issues against the Plaintiffs. The Appellate Court has interfered by passing a decree by declaring that the Plaintiffs have got right of easment by prescription and right of easment of necessity to receive light and air from the southern side of their house through the windows in existence. It was alleged that the Plaintiffs have right to discharge the water from the roof of their house on the said strip of land. The Defendant No.1 was directed to remove the shed and the heap of stones near the southern side wall of the house property of the Plaintiffs. Perpetual injunction was granted restraining the Defendant No.1 from interfering with the right of easment available to the Plaintiffs.

4 The learned counsel appearing for the Appellants has pointed out that apart from the fact that there is no plea of easment of necessity found in the plaint, going by the admissions of the witnesses examined by the Plaintiffs, the old mud structure of the Defendant No.1 was in existence prior to construction of the house by the Plaintiffs. He submitted that as this factual position has been borne out from the record, the right of easment by way of prescription could not have been claimed by the Plaintiffs. He invited attention of the Court to the relevant admissions. He, therefore, submitted that the acquisition of right of easment by prescription was not proved even going by the evidence of the Plaintiffs. None appears for the Respondents.

5 I have given careful consideration to the submissions. While admitting this appeal, this Court has observed that ground '1' involves the substantial question of law. The ground '1' reads thus:

“1) Was the Court below correct in holding that the Plaintiffs have established their rights of easment by