IMPORTANT POINT
In order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years.

Headnote:(i) Easements Act, 1882-Section 15-Claim of right of access by way of prescription-One has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years-There should be categorical pleadings that since what date to which date one is using the access for the last 20 years-One has to aver specific pleadings and categorical evidence. (Para 10)
       (ii) Easements Act, 1882-Section 15-Claim of right of access by way of prescription-Plaintiff filed suit seeking declaration of her right of motorable access to her house through the property of respondent defendants by way of easementary right-Plaintiff s house along with a garage is surrounded by a compound wall on the eastern side and west, north and south-Defendants are owners of the adjoining property on eastern side of her property through which the suit access passes-Plaintiff s claim that there exists a motorable access of about 50 metres long starting from the main village road and adjacent to eastern boundary wall of plaintiff s property and passes through defendants property-No specific averment in the plaint or in the statement of witnesses showing that the access from the land of defendants was used as of right for the last 20 years-Evidence on record that plaintiff has an access on the south east side and this was being used by her for a long time-Plaintiff has failed to establish that she has been using the access peacefully, openly as of right-View taken by the High Court as well as the trial Court granting decree in favour of plaintiff is not based on correct appreciation of facts-First appellate Court has correctly approached the matter in holding that plaintiff has failed to prove that she is entitled for a decree.
       Held : We have gone through the three judgments i.e. trial court, first appellate court and that of the High Court. We have gone through the evidence adduced. From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the defendants was used as of right for the last 20 years. The evidence very categorically shows that the plaintiff has an access on the south east side and this was being used by her for a long time. It was pointed out that only in the year 1984 the plaintiff has started using the access through the property of the defendants. It is also admitted that the defendants were during that time on board of ship and as soon as they came and saw the use of their land by the plaintiff, they put obstructions to it. Therefore, it is clear that it is not the case that the plaintiff has been using the access as of right through the property of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property we see no reason why the property of other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years. More so we find that material placed on record and especially the photographs which have been exhibited and marked as Ext. D.W. 3/A in the court that there are two pillars showing the existence of a gate in southern side but it has been closed down by rubble stones. The defendants have put up a strong case that the plaintiff has an opening in the southern side and it is amply established that there exist two pillars showing the existence of a gate which has been covered by rubble stones in the southern side. It was also pleaded that the plaintiff was using the same and it is only after 1984 she got the gate constructed through the land of the defendants. Therefore, on the basis of the evidence and statement of the witnesses, we are satisfied that the first appellate court has correctly approached the matter and the view taken by the High Court as well as the trial court does not appear to be based on correct appreciation of facts. (Para 10)

Judgement Key Points

The plaintiff sought a declaration of easementary right by prescription for motorable access to her property through the defendants' adjoining land, along with a permanent injunction against obstruction. (!) [1000093210001] Her property, including a house and garage, was surrounded by compound walls, with the claimed 50-meter access starting from a public road and passing through the defendants' property; she alleged continuous use for over 25 years by herself and prior by in-laws.[1000093210003] Defendants denied the claim, asserting the plaintiff had an existing southern access to a public road, which she closed in 1984 to fabricate the eastern claim, supported by witness evidence and photographs showing pillars of a former southern gate blocked by rubble.[1000093210003][1000093210005]

The trial court decreed in favor of the plaintiff, granting the easement and injunction.[1000093210006] The first appellate court reversed, finding no pleadings or proof of use "as of right" peacefully, openly, and uninterrupted for 20 years under the Easements Act, and noting alternative southern access, thus dismissing the suit.[1000093210007] The High Court allowed the second appeal, restoring the trial court's decree.[1000093210008]

On appeal, the Supreme Court held that easement by prescription requires specific pleadings and categorical evidence of peaceful, open, uninterrupted use as of right for 20 years, from a defined start date; the plaintiff failed this, as evidence showed southern access use historically and eastern use only from 1984, obstructed soon after by defendants. (!) [1000093210009][judgement_act_referred][judgement_subject] Photographs confirmed the blocked southern gate, negating necessity.[1000093210009] The appeal was allowed, High Court and trial court orders set aside, first appellate decree upheld, suit dismissed.[1000093210010] (!)

JUDGMENT

A.K. Mathur, J.-This appeal is directed against the order passed by the Single Judge of the High Court of Bombay, Panaji Bench, Goa in Second Appeal No. 4 of 1995 on February 13, 1998 whereby learned Single Judge has reversed the order passed by the first appellate Court.

2. Brief facts which are necessary for disposal of this appeal are that Smt. Bernadette B. Pereira filed a suit seeking declaration that she had acquired easementary right of access through the property of respondents. Shri Justiniano Antao, his wife Smt. Seaman Antao and Shri Diogo Antao (hereinafter referred to as the respondent-defendants) and for permanent injunction against the respondent-defendants for restraining them from obstructing, blocking interfering with the motorable access.

3. The trial court by its order dated February 26, 1991 decreed the suit of the plaintiff against the respondent-defendants holding that the plaintiff had right of motorable access to her house through the property of the respondent-defendants by way of easementary right through prescription. On appeal being filed before the District Court by the respondent-defendants, the judgment of the trial court was reversed by the first appellate court on two grounds, namely, that the plaintiff had failed to allege in the pleadings that the way in question was not being used as of right and since the way was not claimed as of right the relief in question could not be granted to the plaintiff in view of Section 15 of the Easements Act, 1882 which provided that easementary right must be claimed as of right. The second ground on which the findings were upset was that the plaintiff s property was bounded on two sides by road and it does not stand to reason that in such a state of affairs the plaintiff would pass through the property of the respondent-defendants in order to reach the same road which bounds the property of the plaintiff. Aggrieved against the said order the plaintiff filed a second appeal before the High Court of Bombay, Panaji Bench, Goa and the High Court reversed the finding of the first appellate court and hence this appeal on grant of special leave.

4. The plaintiff and her husband Shri Bruno B. Pereira are permanent residents of Chandor-Goa and are absolute owners in possession and peaceful enjoyment along with others a landed property known as "COLOSSO" situated at Colosso, Chandor, Salcete, Goa and in this property there exists their residential house which faces towards the eastern side built by her in-laws more than 75 years ago bearing village Panchayat House No. 432. Besides the said house, there exists a garage on the north-eastern corner of the said house, built by her husband more than 25 years back. Her house along with the garage is surrounded by a compound wall on the eastern side and west, north and south with ado of rubbles and on the eastern side of the said compound wall, there is an iron frame gate of about 4 metres width. This compound wall was also constructed by her in-laws at the time of construction of the said residential house. It is alleged that prior to her marriage, her husband owned a car besides two trucks, one in working condition and the other in scrap condition and one luna moped. These vehicles were bought between the period 1960 and 1982 and these vehicles were being parked in the said garage from time to time. The defendants are the owners of the adjoining property on the eastern side of her property through which the suit access passes, the same is surveyed under No. 9, Sub-division No. 15 of Guirdolim village. It is alleged by the plaintiff that there exists a motorable access of about 50 metres long starting from the main village Panchayat public road and adjacent to the eastern boundary wall of the plaintiff s property and passes through the defendants property under survey No. 9/15 and it reaches to the gate of the plaintiff. It is alleged that the plaintiff had been enjoying the suit motorable access peacefully, continuou

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2004 Supreme(SC) 1455

IMPORTANT POINTIn order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years.

IMPORTANT POINT
In order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years.