Sunday, 3 July 2016

How to prove right of easement?

On considering the rival submissions and on close scrutiny of the evidence, it would reveal that the plaintiff did not adduce satisfactory evidence to show that he has acquired easement by prescription. An easement can be acquired by prescription under Section 15 of the Easements Act. Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly. This, he must do by showing a grant conferring an easement in express term or by necessary implication, or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquisition of the owner of the servient tenement that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation. Where an easement is claimed as a partenant to certain land, the burden is on the party claiming it to show that the original grantee of an easement was the owner of the land in question at the time of the grant. When the party claiming the easement had made prima facie showing of a prescriptive title, it is then incumbent on the owner of the survient tenement to show by sufficient affirmative proof that the use has been by virtue of a licence or permission or any other defence which would destroy the prima facie showing. On the other hand, where the servient owner sets up the defence of bona fide purchaser and proves the purchase, payment for, and ownership of the land, the burden then shifts to the claimant to show that such owner had actual or constructive notice of the easement before the purchase. The question whether a cultivator has access to his field through the field of another has to be decided on the basis of convenience and not on the basis of acquisition of right of way by prescription. A right of way may be acquired by prescription where the same has been peaceably and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. Thus, in the present case it is for the plaintiff to prove that the disputed path way was being used openly and peaceably for 20 years.
Bombay High Court
Tanba S/O Nusaji Mahajan vs Pandhari S/O Nusaji Mahajan on 5 May, 2004
Equivalent citations: 2004 (6) BomCR 782, 2004 (4) MhLj 109

Bench: S Kharche


1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the unsuccessful plaintiff has filed this second appeal being aggrieved by the judgment dated 21st December, 1990 in Regular Civil Appeal No. 132 of 1987 passed by the learned Additional District Judge whereby the appeal came to be dismissed and the judgment and decree passed by the trial Court on 22-7-1987 dismissing the suit of the plaintiff seeking relief of declaration of easement of way has been confirmed.
2. Brief facts are required to be stated as under :
The plaintiff and the defendant are real brothers and they are in all five brothers by name; Pandurang. Tanba (plaintiff), Kishna, Pandhari (defendant) and Bhagwan. It is contended that the joint family of all the brothers owned agricultural land which was the subject matter of partition. The agricultural lands were divided by metes and bounds by the partition dated 22-3-1976 and each brother were allotted respective share in the lands. The plaintiff's case is that the agricultural land allotted to his share has been shown by capital letter 'H' in the map annexed with the plaint. Whereas the defendant is also allotted the land survey No. 39/4. It is contended that the plaintiff was required to have access to the land allotted to his share through the way shown by letters 'A B C D E F G' in the plaint map. He contended that the said way is about 10 ft. in width and he is using the said way since last 30 years in order to cultivate his field by taking bullock cart and other agricultural implements. He contended that this is the only way which is available in order to have access to his land and therefore, claimed easement of way by prescription as well as by way of necessity as the land of the plaintiff has been locked from all sides. The plaintiff contended that the defendant has obstructed the user of the way at the time of Akhadi festival of 1984 and he had put thorny fencing and stones on the way at the point shown by letters 'FG'. Therefore, the notice dated 3-8-1982 was served on the defendant to which evasive reply was given on 11-8-1982. The plaintiff was therefore, constrained to file the suit for permanent injunction restraining the defendant from causing any obstruction in the user of the right of way.
3. The defendant combated the claim of the plaintiff by filing written statement and contended that the plaintiff has an access to his land through the way shown by letters 'A B C D E F G' as shown in the map annexed with the written statement. It is contended by the defendant that the agricultural land was partitioned between all the brothers by virtue of partition deed dated 22-3-1976 and in the partition deed itself the way has been granted to the brothers for cultivation of agricultural lands allotted to their shares. He contended that the plaintiff is trying to create a new right of user and therefore, appropriate reply on 11-8-1982 was given.
4. On the aforesaid pleadings the trial Court framed the issues. The plaintiff Tanba examined himself and one witness Bhaurao in support of his contentions, whereas the defendant has examined himself only. The parties relied on oral as well as documentary evidence tendered and the trial Court on consideration of the evidence, recorded findings that the plaintiff failed to establish that he has acquired right of way either by prescription or by necessity and consistent with these findings, dismissed the suit by judgment dated 22-7-1987. The plaintiff being aggrieved by the judgment and decree passed by the trial Court, carried appeal to the District Court. The learned Additional District Judge, on hearing the learned counsel for the parties, dismissed the appeal by judgment dated 21-12-1990. This judgment of the appellate Court is challenged in this second appeal.
5. Mr. Patil, the learned counsel for the plaintiff contended that though the agricultural lands were partitioned between the parties on 22-3-1976, the plaintiff has been using the way shown by letters 'A B C D E F G' in the map annexed with the plaint. He contended that this way is situated on the northern side of his land and the defendant has caused obstruction by putting thorny fencing in between the points shown by letters 'F G' in the plaint map. He contended that this right of way is being used by the plaintiff as of necessity within the meaning of Section 13 of the Easements Act, 1882. He contended that the plaintiff has adduced on record the evidence to show that he has acquired the right of way by prescription within the meaning of Section 15 of the Easements Act. He contended that the defendant has obstructed the user at the time of Akhadi festival of 1984 by putting thorny fencing and stones in between the points shown by letters 'F G' in the map. He contended that the defendant did not remove the said obstruction in spite of service of notice and since the plaintiff has been using the said way since last 30 years, he has acquired the right of way by prescription. He contended that in such circumstances both the Courts below have committed an error in not appreciating and not construing the evidence in proper perspective and therefore, the impugned judgment cannot be sustained in law.
6. Mr. Karbhari, holding for Mr. A. B. Choudhary, the learned counsel for the defendant contended that by virtue of the partition deed dated 22-3-1976, a specific grant has been made in favour of all the five brothers regarding user of the way in order to have access to the lands allotted to their shares and in such circumstances, no oral evidence adduced by the plaintiff can be taken into consideration to disprove the recitals mentioned in the partition deed. He contended that the plaintiff did not make any specific pleadings that he has acquired easement by prescription and the pleadings basically are in respect of the easement which is claimed as of necessity. He contended that both the Courts have considered the oral as well as documentary evidence and recorded the findings that the plaintiff has failed to establish that he has acquired the easement of way either by way of prescription or of necessity, and therefore, rightly dismissed the suit of the plaintiff seeking relief of permanent injunction restraining the defendant from causing obstruction on the way shown by letters 'A B C D E F G' in the plaint map. Mr. Karbhari further contended that no substantial question of law arises in this appeal and the same may kindly be dismissed with costs.
7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce Sections 13 and 15 of the Indian Easements Act, 1882 (for short, the Easements Act) which reads thus;
13. Where one person transfers or bequeaths immovable property to another. --
(a)     if an easement in other immovable property of the transfer or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
 

(b)     if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
 

(c)     if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
 

(d)     if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. 
 

Where a partition is made of the joint property of several persons,--
  

(e)     if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
 

(f)     if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
 

The easements mentioned in this section, Clauses (a), (c) and (e), are called easements of necessity.
 

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. 15. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
 

and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years,
 

and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, 
 

the right to such access and use of light or air, support or other easement shall be absolute.
 

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
 

8. It is not in dispute that the plaintiff and defendant are real brothers and the agricultural land owned by the joint family was the subject matter of partition which was reduced into writing on 22-3-1976. It is also not in dispute that a specific grant has been made in the partition deed in relation to the cultivation of the lands which were allotted to the share of the respective parties. The right of way allotted by the recitals of the partition deed is entirely different than the one claimed by the plaintiff. The said right of way described in the partition deed is in existence which proceeds from the eastern boundary of the agricultural land allotted to the share of the allottee's brother Pandurang and the said right of way also proceeds after taking a turn at the northern corner of the field of Pandurang, proceeds from the northern boundary of the field of Pandurang. This grant has been shown by dotted lines in the map annexed with the written statement and it appears that in support of that map, a Government map which is certified by the Talathi has also been appended showing the same position.
9. On considering the rival submissions and on close scrutiny of the evidence, it would reveal that the plaintiff did not adduce satisfactory evidence to show that he has acquired easement by prescription. An easement can be acquired by prescription under Section 15 of the Easements Act. Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly. This, he must do by showing a grant conferring an easement in express term or by necessary implication, or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquisition of the owner of the servient tenement that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation. Where an easement is claimed as a partenant to certain land, the burden is on the party claiming it to show that the original grantee of an easement was the owner of the land in question at the time of the grant. When the party claiming the easement had made prima facie showing of a prescriptive title, it is then incumbent on the owner of the survient tenement to show by sufficient affirmative proof that the use has been by virtue of a licence or permission or any other defence which would destroy the prima facie showing. On the other hand, where the servient owner sets up the defence of bona fide purchaser and proves the purchase, payment for, and ownership of the land, the burden then shifts to the claimant to show that such owner had actual or constructive notice of the easement before the purchase. The question whether a cultivator has access to his field through the field of another has to be decided on the basis of convenience and not on the basis of acquisition of right of way by prescription. A right of way may be acquired by prescription where the same has been peaceably and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. Thus, in the present case it is for the plaintiff to prove that the disputed path way was being used openly and peaceably for 20 years.
10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.
11. The specific grant made in the partition deed in relation to the right of way has been shown by the Talathi in the map by letters 'DBF'. If this is so, then there is no reason for this Court to take a different view of the matter that the plaintiff can have a access to his land from the northern boundary of the field of the defendant and that the defendant has made obstruction on the said right of way in between the point shown by letters 'GF' in the map annexed with the plaint.
12. What would reveal from the close scrutiny of evidence is that the plaintiff did not plead anywhere in the notice dated 3-8-1982 that he has acquired the easement of way by prescription under Section 15 of the Easements Act and therefore, oral evidence adduced to prove the easement by prescription, deserves to be ignored. Both the Courts below were perfectly justified in coming to the conclusion that the plaintiff did not acquire any right of easement by prescription.
13. So far as the easement of way claimed by necessity is concerned, the oral evidence is in direct conflict with the specific grant mentioned in the partition deed and therefore, it is not possible to accept the contentions of the learned counsel for the plaintiff that both the Courts below have committed an error in reaching the conclusion that the plaintiff has failed to establish the right of user of the suit way by way of necessity. No doubt, it appears that the land of the plaintiff has been land locked by all the sides at the time of partition but it is also significant to note that this fact must have been kept in view by all the five brothers at the time when they effected the partition of their agricultural lands and this is the reason as to why the specific grant regarding the approach way has been made in the partition deed itself. Therefore, considering the evidence from any angle, it is not possible to accept that the plaintiff has acquired the easementary way either by prescription or by way of necessity within the meaning of Sections 13and 15 of the Easements Act. In the result, this Court is of the considered opinion that no substantial question of law arises in this appeal and there is no reason to interfere into the findings of fact recorded by both the Courts below. Therefore, the appeal is dismissed with costs.
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