How to prove right of way by easement of prescription?

A careful perusal of the plaint would show that the plaintiffs
have failed to plead that since what date to which date plaintiffs are
using the land and also failed to plead that they are using the land
for last 30 years against the State/defendant. They have only
pleaded that they are using suit land for last 12 years. The
Supreme Court in the matter of Justiniano Antao and others v.
 Bernadette B. Pereira (Smt.)  (2005) 1 SCC 471S.A. No. 243 of 2016
 , has clearly held that in order to
establish a right by way of prescription, there should be specific
pleading and categorical evidence in general and specifically held
in para 9 of the judgement as under:
“9. 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. 
5. In the above referred to decision, their Lordships have held
that 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 an easement by way of prescription to the detriment of
the other party, one has to aver specific pleadings and lead
categorical evidence.
6. Both the Courts below concurrently held that the plaintiffs
failed to plead and prove the necessary ingredients to establish the
right of easement as required by Section 15 of the Indian
Easement Act and keeping in view the ratio of law laid down by the
Supreme Court in the aforesaid case, the concurrent finding of fact
recorded by both the Courts below is based on evidence available
on record and it is neither perverse nor contrary to the record. No
substantial question of law is involved in this second appeal.
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 243 of 2016
Rajendra Prasad Shukla 
V
 State Of Chhattisgarh 
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 02/09/2016
Citation:AIR 2017(NOC) 70 chhatis

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What is term “entitled to defend” and its connection with principles of natural justice?

At this juncture, it is necessary to state that in Udit
Narain (Supra) question arose whether a tribunal is a
necessary party. Recently a two-Judge Bench in Asstt. G.M
State Bank of India v. Radhey Shyam Pandey 
2015 (3) SCALE 39 referred
to Hari Vishnu Kamath v. Ahmad Ishaque and
 Ors.AIR 1955 SC 233
and adverted to the concept of a tribunal being a necessary
party and in that context ruled that:-
“In Hari Vishnu Kamath (supra), the larger
Bench was dealing with a case that arose from
Election Tribunal which had ceased to exist and
expressed the view how it is a proper party. In
Udit Narain Singh (supra), the Court was really
dwelling upon the controversy with regard to the
impleadment of parties in whose favour orders
had been passed and in that context observed
that tribunal is a necessary party. In Savitri
Devi (supra), the Court took exception to courts
and tribunals being made parties. It is apposite
to note here that propositions laid down in each
case has to be understood in proper perspective.
Civil courts, which decide matters, are courts in
the strictest sense of the term. Neither the court
nor the Presiding Officer defends the order before
the superior court it does not contest. If the High
Court, in exercise of its writ jurisdiction or
revisional jurisdiction, as the case may be, calls
for the records, the same can always be called for
by the High court without the Court or the

Presiding Officer being impleaded as a party.
Similarly, with the passage of time there have
been many a tribunal which only adjudicate and
they have nothing to do with the lis. We may cite
few examples; the tribunals constituted under
the Administrative Tribunals Act, 1985, the
Custom, Excise & Service Tax Appellate Tribunal,
the Income Tax Appellate Tribunals, the Sales
Tax Tribunal and such others. Every
adjudicating authority may be nomenclatured as
a tribunal but the said authority(ies) are different
that pure and simple adjudicating authorities
and that is why they are called the authorities.
An Income Tax Commissioner, whatever rank he
may be holding, when he adjudicates, he has to
be made a party, for he can defend his order. He
is entitled to contest. There are many authorities
under many a statute. Therefore, the proposition
that can safely be culled out is that the
authorities or the tribunals, who in law are
entitled to defend the orders passed by them, are
necessary parties and if they are not arrayed as
parties, the writ petition can be treated to be not
maintainable or the court may grant liberty to
implead them as parties in exercise of its
discretion. There are tribunals which are not at
all required to defend their own order, and in that
case such tribunals need not be arrayed as
parties.”
The principle that has been culled out in the said case
is that a tribunal or authority would only become a
necessary party which is entitled in law to defend the order.
17. The term “entitled to defend” confers an inherent right
to a person if he or she is affected or is likely to be affected
by an order to be passed by any legal forum, for there would

be violation of natural justice. The principle of audi alteram
partem has its own sanctity but the said principle of natural
justice is not always put in strait jacket formula. That
apart, a person or an authority must have a legal right or
right in law to defend or assail.
18. We may first clarify that as a proposition of law it is
not in dispute that natural justice is not an unruly horse.
Its applicability has to be adjudged regard being had to the
effect and impact of the order and the person who claims to
be affected; and that is where the concept of necessary party
become significant.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6774 of 2015
(@ SLP(C) NO. 16650 OF 2012)
Poonam
 V
State of U.P. & Ors
Citation;(2016) 2 SCC779
Dipak Misra, J.
Dated;October 29, 2015

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Whether sanction of building plan by municipal authority is in supersession of easementary rights?

While concluding, I would like to dispose of one more point: whether sanction of a building plan by a municipal authority is in supersession of easementary rights? My answer is no, fortified by Kamalakanta De Vs. Radhabalav Kundu reported in 84 CWN 624 (Para-15), Dhannalal & Ors. Vs. Thakur Chittarsingh Mchtapsuigh reported in AIR 1959 MP 240 (Paras 6 & 7) and Wheeler vs. J.J. Sanders Ltd. & Ors. Reported in 1995 (2) All.ER 697, Coventry Vs. Lawrence & Anr. (2014) UKSC 13 ( Para 89, 94, 95). To my mind the express mandate of the statute can be set up as a defence say, for example, when by an Act of Parliament the Kolkata metro rail was to be set up. Under its operation buildings were damaged, people had to bear up with unbearable noise, vibrations, polluting substances and so on. There was no remedy except those under the Act, which was compensation. Building according to the building rules does not get such protection according to the above authorities.

Calcutta High Court

Itc Limited vs Chowringhee Residency Private ... on 16 January, 2015

Author: I. P. Mukerji

  Citation;AIR2015 calcutta 37

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Indication for definite course of Channel for flow of rain water or sewage water

Before the right to the use of water can be the subject of an easement by prescription or grant, it must be water flowing through a defined permanent channel. The essential features from which a grant or arrangement whereby the right claimed may be presumed to rest in some legal origin are that there should be a permanent channel, artificial or otherwise, or indeed a defined channel of any sort conducting the over flow of water and that the over flow should be controlled or directed in any particular course.

Patna High Court

Anu Sundar And Ors. vs Shiva Narain Jaiswal on 30 October, 1987

Equivalent citations: AIR 1988 Pat 216

Bench: L Shahdeo

JUDGMENT
1. This appeal is directed against the judgment dated 17th July, 1978 passed in Title Suit No. 172 of 1972 by the Second Addl. Subordinate Judge, Ranchi dismissing the suit of the plaintiffs-appellants on contest with costs.
2. The plaintiffs had filed the suit for declaration that they had a right to drain out the surplus rain water and sewage water of their house situated on plot No. 1614 through M. S. Plot No. 1630 belonging to the defendant-respondent. A prayer was also made for permanent injunction restraining the defendant from obstructing the flow of water through plot No. 1630. In addition to that, an estimated claim of Rs. 10,000/- was also made by way of damage caused by the obstruction made by the defendant-respondent. It was claimed that by obstructing in the flow of rain water and sewage water, the water became stagnant on plot No. 1614 as a result of which the land of plot No. 1614 became muddle and the crops thereon were washed away. The further case of the plaintiffs was that they had constructed a pucca house in place of kacha house on municipal plot No. 1615 and began to live in it. Later on as a result of partition among the family members, the plaintiffs got half portion of that plot and the residential house on the southern side and half portion of M.S. plot No. 1614 fell to the share of the plaintiffs and the plaintiffs were in exclusive possession of the same. It was further claimed that the level of plot No. 1614 which belonged to theplaintiffs was at a higher level in comparison with the land adjacent to it being M.S. plot No. 1630 belonging to the defendant-respondent and because of this natural situation of the land, the natural flow of the surplus rain water of plot No. 1614 was in a natural course towards the land of the defendant in M.S. plot No. 1630 and from there the water used to go in the municipal drain near the culvert and used to pass through it. This right of draining off the rain water and sewage water was being exercised by the plaintiffs and their ancestors as a right of easement since times immemorial i.e. more than hundred years.

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Dominant owner cannot impose an additional burden on servient heritage

Section 23 of Indian Easement act provides that dominant owner may from time to time, alter the mode and place of enjoying the easement provided that he does not thereby impose an additional burden on servient heritage.

Supreme Court of India

Smt. Anguri & Ors vs Jiwan Dass & Anr on 30 August, 1988

Equivalent citations: 1988 AIR 2024, 1988 SCR Supl. (2) 736

Bench: Kania, M.H.

PETITIONER:

SMT. ANGURI & ORS.

Vs.

RESPONDENT:

JIWAN DASS & ANR.

DATE OF JUDGMENT30/08/1988

BENCH:

KANIA, M.H.

BENCH:

KANIA, M.H.

SHETTY, K.J. (J)

CITATION:

1988 AIR 2024 1988 SCR Supl. (2) 736

1988 SCC (4) 189 JT 1988 (3) 528

1988 SCALE (2)560

ACT:

Indian Easements Act, 1882: Section 23-Dominant owner entitled to after mode and place of enjoying easement provided no additional burden imposed-Held opening of nine morries in place of three has damaged the properties.

HEADNOTE:

The respondents are the owners of two houses adjacent to each other and also to the property of the appellants. From the roof of the appellants 'structure three morries (narrow outlets) opened towards the property of the respondents. Subsequently, the appellants raised the height of their existing structure and constructed two additional storeys on it. At the same time, the appellants after blocking the three original morries opened nine new morries, three on each floor. The appellants also opened new windows. The respondents however blocked these windows by raising the height of their walls.

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Right To discharge night soil burden of proof is on defendant to prove that he has right to discharge ngith soil

 

Calcutta High Court

Jotindra Mohan Mitter vs Probodh Kumar Dutt on 8 May, 1931

Equivalent citations: AIR 1932 Cal 249

Author: Rankin

JUDGMENT
Rankin, C.J.
1. The plaintiff and the defendant are owners of adjoining premises which originally belonged to certain people called Dutt, but which were partitioned in 1892; the plaintiff's premises being lot B in the return of the Commissioner of partition and the defendants premises being lot Rule The defendant's premises are known as No. 24 Kasi Dutt Street. The defendant purchased them at a Registrar's sale on 7th July 1928. Soon afterwards at all events by October, he commenced to make certain improvements in connexion with these premises. These improvements have brought him into collision with the plaintiff who makes throe complaints.
2. The first complaint is that the defendant was making wrongful alterations to the common passage leading northwards to Ramjan Ostagar Lane. On this point the learned Judge found for the plaintiff and before us the question of common passage has been settled by agreement. Our decree in this appeal will direct by consent that the learned Judge's order as to the common passage be vacated and that in lieu thereof the terms of settlement be carried into effect.

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Right To Flow Of Rain water Would not include Flow of water of all kinds.

A grant of flow of water did not authorise the discharge of a sewage effluent.
 Calcutta High Court

Raman Chandra Das Dalal vs Bhola Nath Hati And Anr. on 13 July, 1928

Equivalent citations: AIR 1929 Cal 350

JUDGMENT
1. The plaintiffs and the detendant are neighbours. Their houses are contiguous with a small lane dividing the two premises in the town of Bolepur. In the lane there is a drain 1' 2" wide at the head. The plaintiffs' case is that the land over which this drain runs belongs to them and that they left it for their own convenience between their and the defendant's houses. This was about 30 years ago. The defendant has now wrongfully obstructed it by building a wall over a portion of it lengthwise thereby obstructing the flow of water and the passage of sweepers. The defendant's case is that the drain was made by mutual consent of parties over their joint land in order to carry rain-water and the washings of the houses. In 1329 the plaintiffs erected a privy on the first floor the foul water of which is now flowing into the drain. The defendant, therefore, has walled up his portion of the drain which he says he is entitled to do. The trial Court held that the land on which this drain exists belonged to the plaintiffs and therefore the defendant had no right to put up a wall upon it. Coming to this conclusion the learned Munsiff did not think it necessary to consider the right of the plaintiffs based on easement; but he observed that there was no evidence of express grant and that since the time when the drain was built was known, the plaintiffs could not claim user from time immemorial. He further remarked:
Even if it be supposed that the plaintiffs have easement right by prescription so far as the flow of rain-water from the roofs of the houses of the parties is concerned, as the time since the construction of the privy does not cover the prescription period and because no additional burden can be imposed upon the servient tenement the issue is decided against the plaintiffs.

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