Whether a person can get easement by grant as well as easement by prescription simultaneously?

An easement by grant is available to Madhavan Nair for access to his property which is on the eastern side of the plaint A schedule property. The learned counsel for the plaintiffs has submitted that as the son of Madhavan Nair the defendant can use the B schedule pathway to go to his father's house. The dominant tenement so far as the easement by grant is concerned is the property on the east of the A schedule property and not the property on the south of the B schedule pathway. An easement by prescription is claimed to keep open the opening in the southern wall of the pathway. But there is only one servient tenement which is the B schedule pathway which forms part of the A schedule pathway. An easement by grant and an easement by prescription are separate and distinct rights. No one can have a dual easement in the same servient tenement. The easement by grant is and has been the source of the right for the entry of Madhavan Nair or anybody under him into the B schedule pathway. When that be so, there can be no user of it as of right to prescribe an easement under Sec. 15 of the Indian Easements Act. The holder of an easement by grant cannot acquire an easement by prescription unless he abandons the former right. There is no such case for the defendant. He cannot simply contend for an easement by prescription for his father unless he pleads that the right of way by grant was abandoned and the user as of right was started. No such plea is raised. One cannot take an easement by prescription without dropping the easement by grant 20 years ago. The easement by prescription pleaded by the defendant is a baseless plea.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 686 of 2016 (F)

Decided On: 24.10.2019

 Reghuprasad  Vs. M. Raghunathan and Ors.

Hon'ble Judges/Coram:

A.M. Babu, J.

Citation: AIR 2020 Kerala 16

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Good legal article on valuation of easement by A.M. Ibrahim. FICA,

https://drive.google.com/file/d/0B5vWGtQ14k1BRnFDVnRtMzFkVGF4UmRHa2t4eDVvZEQweEI0/view?usp=sharing

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Whether a person can acquire easementary right over property which is owned by him?

 With regard to the nature of occupation of the defendant and the finding that the license in his favour was irrevocable under Section 60 of the said Act, it is necessary to refer to the respective pleadings of the parties. While the plaintiff came up with a specific case that he was the owner of the suit property by virtue of the sale-deed dated 16th August, 1983, according to the defendant this document was nominal in nature and executed by way of security for the amount borrowed. It was pleaded that the ownership of the defendant continued and the defendant did not lose his title by virtue of the sale-deed. In alternate, it was pleaded that the occupation of the defendant was by way of a license and a permanent structure had been constructed. As noted above, the relief with regard to declaration of title was rightly granted in favour of the plaintiff by the trial Court.

10. The Full Bench of this Court in Raychand Vanmalidas [supra] has held that though a party may raise inconsistent pleas of ownership and easement in the alternative in the same suit, such party has to elect one of the pleas through the course of the proceedings. Even if a party does not choose one of the alternate pleas, he can lead evidence on both and it is for the Court to decide whether he is entitled to succeed on one of his pleas. This judgment of the Full Bench was considered by the Hon'ble Supreme Court on Chapsibhai Dhanjibhai Dand [supra] and the same came to be affirmed. It was observed that after taking the plea of ownership and failing in the same, a party cannot subsequently turn around and claim that right as an easement by prescription. For establishing the right based on easement, such right has to be exercised on the property owned by somebody else and not as an incident of his own ownership of that property. In the light of this legal position, it is clear that the defendant having failed to prove his ownership cannot now be permitted to turn around and claim that by virtue of easementary right, he had undertaken a permanent construction and, therefore, was not liable to be evicted. In Shankar Gopinath Apte [supra], this position has been reiterated by emphasizing that the party undertaking the work of a permanent character should do so while "acting upon the license" under Section 60(b) of the said Act.

11. In view of this legal position, it is found that both the Courts committed an error in refusing the relief of possession to the plaintiff by relying upon the provisions of Section 60(b) of the said Act. Having failed to prove his title, it was not open for the defendant to fall back upon his other plea that he had easementary right in the suit property. Both the Courts refused the relief of possession by wrongly applying the law. Substantial question of law No. 2 is answered by holding that the defendant is not entitled to claim that on account of permanent construction being made, the license was irrevocable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 384 of 2003

Decided On: 09.02.2018

 Tulshidas  Vs. Madhukar

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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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When easement by prescription to get water is not proved?

Since, it emerged in
the evidence led on record by the respective parties that
water sources existed in khasra No.27 owned by the
defendants, Court below have rightly held that the
plaintiff have no right to take away the water from khasra
No.27 by way of easement of prescription. Plaintiff has
miserably failed to prove on record that they as well as
their predecessor have been using this water from the
sources for continuously for more than 20 years as a right
openly and peacefully. In the present case, it clearly

emerge from the evidence led on record as well as
averments contained in the plaint that plaintiff has not
been able to prove on which part of khasra number water
sources exists. Both the Courts below have rightly
concluded that plaintiff has not been able to prove his
right by easement, if any, and as such, this Court sees no
illegality and infirmity in the judgment passed by both the
courts below. 
 High Court of H.P.
 IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
 RSA No.336 of 2005
 Date of Decision: 5th August,2016

Ram Nath  V Bansi Lal & others 
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation:AIR 2016 (NOC) 706 HP

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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

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Whether right of way is acquired by passing through open plot?

 I will now come to the right of way sought. In this connection, in the first place, I would like to remind myself that section 15 of the Easement Act makes it amply clear that to acquire an easement by prescription in respect of right of way it must not only be peaceably and openly enjoyed but as an easement and as of right without interruption for 20 years. Before embarking on further discussion on this matter, the original plaintiffs themselves say in para 1 of the plaint that the servient property is open on all sides. It is therefore clear that it is an open plot. A large number of authorities have been relied upon by Mr. Kakodkar to suggest as to how the courts have viewed no acquisition of easement over an open piece of land in this country in distinction with English view point.

15. Open pieces of land are being freely traversed by members of the public in this country. In the light of the provisions of the Easements Act several matters came for consideration before various High Courts and let us succinctly have a look at them. In the authority of Ramchandra Trimbak Joshi v. Hari Mortand Joshi, a Division Bench decision reported in A.I.R. 1929 Bom. 144, on a claim under section 15 for right of way it is laid down that the user of the right of way to be open must raise presumption that it is to the knowledge of the owner of the servient property and that the owners acquiesced. It also lays down that the Court should consider the right of way, the character of the ground, the steps for which the right is claimed and the relation between the parties and what is more the circumstances under which the user takes place and whether such a user was as of right. What is however interesting is that the observation made in relation to the open lands in this country cannot be overlooked which are to this effect :

"In a country like India where the lands are usually unenclosed, before a right of easement is declared to be established over them, the courts, in my opinion, must require strict proof that the plaintiff has satisfied the requirement of the section. "Referring to the decision in another case Khoda Buksh v. Rajuddin, what is extracted cannot be less overemphasized....." having regard to the habits of the people of this country, I do not think that it would be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England. The question in always a question of fact and the propriety of the rule that the presumption from user should be that it is as of right, must depend upon the circumstances not only of each particular case but also of each particular country, regard being had to the habits of the people of that country."

In the case of Siti Kanta Pal and another v. Radha Gobinda Sen and others, reported in MANU/WB/0347/1928 : AIR1929Cal542 it has been laid down with reference to section 15 that long user does not prove enjoyment as of right though an enjoyment as of right cannot be inferred as a matter of course from a finding only or for that matter long user. To same effect is the decision of Harisadha De and others v. Radhika Prasad Pandit and others, reported in MANU/WB/0207/1937: AIR1938Cal202 .

In the decision of Salina Jitendra Lal v. Ram Charan, reported in A.I.R. 1959 Pat. 47, it is observed that the question that merely because a land was fallow and not cultivated for some time and that there was a user of a pathway over the land by the villagers was held to be not giving the right to a presumption either in law or in fact that such a user by the villagers was as a matter of right. The reasoning which prevailed upon the Division Bench was that in India people view exclusiveness of landed property unlike other countries in the West and it is common for the owners as long as the land is lying waste not to raise objection to passage of strangers or other people. As early as 1959 a learned Single Judge of this Court in the decision of Tukaram Rajaram Suple and others v. Sonaba Chindhu Mali, reported in MANU/MH/0023/1959 : AIR1959Bom63 , held that having regard to the habits of the people of this country it would not be right to draw the same inference from mere user to give rise to acquisition of easement or raise such a presumption. The Court further observed that it is not in every case of right of way that the Court as soon as the plaintiff leads evidence to prove uninterrupted user of right of way for more than 20 years can straightaway draw the presumption that the user was as of right. A learned Single Judge of the Orissa High Court in the decision of Lambodar Panda and others v. Ramesh Chandra Panda and others, reported in MANU/OR/0061/1958 : AIR1958Ori248 , went a little further and observed that a mere period of long user will not give rise to a presumption as it is common in this country and for that matter even customary that the owner of a piece of waste land would not raise any objection for the passage. When I said that the learned Single Judge went a little further he made an observation that the plaintiff has to establish the user as of right and despite objection from the owner of the servient property. Some more authorities have been relied upon by the learned Counsel which need not be referred to to unnecessarily burden the judgment and suffice at the moment to succinctly record that in this country the owners look upon traversing their property as something not an act of aggression or encroachment as long as they are open pieces of land or waste pieces of land and secondly, a long user for the purposes of crossing over does not raise a presumption that the user has been as of right and this is so despite people making use of the land for a number of years even in excess of 20 years.

Bombay High Court

Macario Antonio Francisco De ... vs Alex Fred D'Souza And Ors. on 22 February, 1991

Equivalent citations: 1993 (1) BomCR 465

Bench: G Kamat

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How to prove easement of right of way by prescription?

Easements Act, 1882 - Section 15 -- Easementary right--Availability--Claim by plaintiff of Motorable access to her house through property of defendants by way of easementary right through prescription--No specific averment in plaint or in statement of witnesses showing that this access from land of defendant used as of right for last 20 years--Hence, claim of plaintiff not sustainable--High Court erred in law--And view taken by first appellate court correct.

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.

Supreme Court of India

Justiniano Antao & Ors vs Smt. Bernadette B.Pereira on 22 November, 2004

Bench: Ashok Bhan, A.K. Mathur

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How to acquire easement of prescription?

 Now examining the right under Section 15 of the Act, it is clear that the following ingredients are required to be satisfied to claim right of way by easement of prescription.

(a) right must be certain,
(b) it must have been enjoyed,
(c) the enjoyment must be independent, and
(d) it must be peaceably and openly as of right without any interruption for more than 20 years.

Equivalent Citation: 2011(5)ALLMR62, 2011(6)BomCR66, 2011(5)MhLj345

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55/1995

Decided On: 30.06.2011

 Manikrao S/o Narayanrao Bhoge and Ors.
Vs.
Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale

Hon'ble Judges/Coram:
A.B. Chaudhari, J.

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When court can grant right of way from boundary of field of another person?

Equivalent Citation: 2011(5)ALLMR62, 2011(6)BomCR66, 2011(5)MhLj345

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55/1995

Decided On: 30.06.2011

 Manikrao S/o Narayanrao Bhoge and Ors.
Vs.
 Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale

Hon'ble Judges/Coram:
A.B. Chaudhari, J.

Property - Injunction - Easementry Right - Present appeal filed against order by which lower Appellate court reversed judgment and decree passed in Appellant's suit filed for declaration for right or way and for perpetual and mandatory injunction in relation to way shown by letters A1 to A7 for approaching to their respective fields - Held, there was so many other fields in between point A-1 to A-6 - Way passes over boundaries of other fields which includes other relevant field - However, owners of these fields must have not objected to user and therefore, they are not arrayed as Defendants in this suit - This also supports Appellant's case - Said owner have tacitly admitted Appellant's right of way and therefore, they did not raise objection - It was clearly established right acquired by Appellants by prescription and first appellate Court committed error in recording finding that there was no easementary right by way of prescription - Finding recorded by first appellate Court that they had alternate available to approach their respective fields by crossing big Nullah appears to be perverse since trial Court has clearly held that Nullah is big Nullah - It is difficult to believe that farmers would be able to go to their respective fields with bullock carts and luggages during rainy season when Nullah would flow - It cannot be said that that was matter of mere convenience of Appellant - Hence, said prescriptive right ought to have been granted by appellate Court - For these reasons, Second Appeal allowed - Judgment and decree passed by lower appellate Court is set aside - Judgment and decree passed by trial Court is restored

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Whether a person can acquire right to easement by prescription in a property by purchasing said property?

 As regards the question of acquisition of easement by prescription within the meaning of Section 25 of the Limitation Act, 1963 the section itself lays down the conditions for acquisition of such a right by way of prescription. It would be apposite to reproduce herein Section 25 of the Limitation Act, 1963 :-
“25. Acquisition of easement by prescription.----
(1) Where the access and use of light or air to and for any building have been peacefully enjoyed therewith as an easement, and as of right, without interruption, and for 20 years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peacefully and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for 20 years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
(2) Each of the said periods of 20 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 i.e. contested.
(3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “20 years” the words “30 years” were substituted.”
From the language employed in section 25 as above, it is evident that a person claiming easement by way of prescription must have enjoyed the access and use of the said right openly, peacefully and without interruption for a period of 20 years.
17. In the instant case it is the admitted position of fact that Derrila Lingdoh having purchased the suit land in the year 1935 has been openly, peacefully and continuously using Schedule-B strip of land for access to Schedule-A land until her death prior to 1982 i.e. for a period more than 20 years. Therefore, Derrila Lingdoh had evidently acquired easement by prescription over the B-scheduled land. The
usage of words such as “absolute” and “ indefeasible” in section 25 denotes that such right would be conclusive, unconditional and irrevocable in nature.
Therefore, such right accruing to Derrila Lingdoh during her life time over the Schedule-B passage was incidental to her title and interest over the Schedule-A land and hence, would be in the nature of a permanent, inheritable and transferable right.
18. There can be no doubt about the fact that in order to acquire easement by prescription under Section 25 of the Act of 1963, the claimant not only would have to lay down factual foundations in the pleadings but would also have to lead evidence so as to establish the peaceful, open and uninterrupted usage of the said right continuously for a period of 20 years. In the present case the defendant himself has admitted in his evidence that Derrila Lingdoh had been using the Schedule –B strip of land during her life time till her death i.e. prior to the year 1982. The defendant/ respondent has stated in his evidence that he has seen Derrila in the schedule-A land around 1950 and that she was in use of the passage shown in Schedule-B land. It is also admitted by the defendant/ respondent that the Schedule –B land is the only path way to access the Schedule-A land.
19. It is settled law that facts admitted need not be proved. An admission of fact is the best evidence that can be gainfully pressed into service by the opposite side. From the material evidence
available on record it is found that an easement by prescription within the meaning of section 25 of the Limitation Act 1963 had clearly accrued in favour of Derrilla Lingdoh over Schedule-B land during her life time. Such right having been accrued upon the predecessor-in-interest of the plaintiff’s vendor by operation of law, the said right devolved upon her successors-in-interest after death of Derrilla and eventually stood transferred in favour of the plaintiff on his stepping into the shoes of his vendor upon purchase of the Schedule-A land by means of a registered deed of sale. The right to use the passage in Schedule –B is a bare necessity for the Plaintiff since there is no other access to the Schedule-A land belonging to him. The Plaintiff would, therefore, be entitled to enjoy such easement over Schedule-B passage until his right ,title and interest over the suit land stands extinguished under due process of law .
IN THE GAUHATI HIGH CORT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 139 of 2001

Shri Dwaraka Prasad Agarwalla, 
V 
On the death of sole respondent
Sri Nil Kamal Bezbarua, his legal heirs :-
1. (a) Smti. Sarada Bezbarua (wife)
(b) Sri Prabhat Bezbarua (son)
(c) Sri Kamal Kishore Bezbarua (son)

BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
Dated;20-1-2015
Read original judgment here;click here
Citation;AIR2015 Gauhati High court33

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When easementary right by prescription can be acquired?

Prescriptive right is founded on utility rather than on equity. In the above provisions of Section 15 of the Act period of 20 years is mentioned in respect of private persons while period of 30 year sis mentioned in respect of Government properties. The time necessary for giving rise to the presumption has been different in different nations and even different at different periods in the history of the same nation. Among Romans at one time possession once obtained nec vi, nec clam, nec precario could not be disturbed by force. This was changed by Justinian to twenty years in the case of those present. Justinian was emperor and had gained fame as Legislator.

17. Combined reading of Sections 13 and 15 of the Act shows that they are independent provisions providing for easementary rights on different nature of rights. To repeat, Section 13 of the Act provides for easements of necessity and quasi-easements, while Section 15 of the Act provides for easements by prescription. These are thus clearly independent provisions and there is no overlapping of exercise of easementary rights falling under Sections 13 and 15of the Act. If the parties are legally entitled to exercise easementary right under both these provisions, it is open for them to do so. In other words, if a party has easementary right under Section 13 of the Act and also under Section 15 of the Act, it can claim such parallel rights. The appellate Court however recorded a finding in the instant case that for exercising right of prescription under Section 15 of the Act availability of the alternate way clearly ruled out the easements of necessity and therefore, right by way of prescription could not be granted to the Plaintiffs which is wrong. Rights created under Section 13 of the Act have nothing to do with the prescriptive rights under Section 15 of the Act. Even if easement of necessity was not available in law to the Plaintiffs as held by me earlier, it is not necessary that the Plaintiffs also must fail for claiming right under Section 15 of the Act. Therefore, it will have to be held that Sections 13 and 15 of the Act are the provisions independent of each other and there is no overlapping of rights created therein. Now examining the right under Section 15 of the Act, it is clear that the following ingredients are required to be satisfied to claim right of way by easement of prescription.

(a) right must be certain,

(b) it must have been enjoyed,

(c) the enjoyment must be independent, and

(d) it must be peaceably and openly as of right without any interruption for more than 20 years.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55/1995

Decided On: 30.06.2011

Appellants: Manikrao S/o Narayanrao Bhoge and Ors.
Vs.
Respondent: Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale

Hon'ble Judges/Coram:
A.B. Chaudhari, J.

Citation: 2011(6)BomCR66, 2011(5)MhLj345

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Easement by prescription and easement by necessity whether both can be acquired by plaintiff ?

Learned   Counsel   for   the   appellant   referred   to   the 
ruling   in   the   case   of  Manikrao   Narayanrao   Bhoge   and 
Others vs. Maheshkumar s/o. Bansilal Vyas and another 
reported in 2011 (5) Mh.L.J. 345 to argue that Sections 13 
and   15   of   the   Easements   Act   need   to   be   read   together. 
Section 13 of the Easements Act provides for easement of 
necessity and quasi­ easement, while Section 15 of the Act 

provides   for   easement   by   prescription   which   are 
independent provisions.  If the parties are legally entitled to 
exercise easementary right under both the provisions, it is 
open for them to do so.  Thus, when the plaintiff produced 
evidence in the present case in the trial Court regarding his 
right of way enjoyed by him and his predecessor in respect 
of   the   approach   way   to   the   suit   land   for   carrying 

agricultural   implements,   bullockcarts   etc.   and   when   the 
trial Court found the evidence sufficient so as to pass decree 
in favour of the plaintiff after recording conclusion that the 
defendant had obstructed right of way pleaded and proved 
by the plaintiff, the first Appellate Court was unnecessarily 
swayed away by argument on behalf of the defendant to 
deny legal right declared by the trial Court in favour of the 
plaintiff   on   the   basis   of   prescriptive   easementary   right. 


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.9 OF 2007
Uttamrao Tulshiramji Madghe

 V
Shrawan Natthuji Bagul (Pagtil),

      CORAM     :  A.P.BHANGALE,  J.
      DATE         :  19.4.2014.

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Pleading necessary for claiming Easement by prescription

A perusal of the plaint reveals that the plaintiff
has not identified and described the suit access in the
manner it was necessary. The point of ingress and
egress; length and width of the suit access and exact
location thereon has not been stated nor has been shown
by way of sketch. It has been alleged that the suit access
is the only access available to the plaintiff to go to the
public road and that there is no other access. It is further
alleged that the suit access is a traditional access. It is
also stated that the suit access is a customary access. It
is further alleged that the property of the plaintiffs is
landlocked and that the plaintiffs have right to have an
access as provided under Article 2309(1) of the
Portuguese Civil Code. But no prayer in respect of such
a right has been made. Lastly, it has been claimed that
the suit access has been used by them for the last 50
years openly, peacefully and without interference from
any one. However, there is no pleading that the suit
access has been so used “as of right”. Part of section 15
of the Easements Act reads:- “..... and where a right of
way or easement has been peaceably and openly
enjoyed by any persons claiming title therein as an
easement as and of right without interruption for 20
years.” In view of the above, I am of the view that the
First Appellate Court cannot be said to have erred in
holding that a case of easement was not properly
pleaded in the plaint. The substantial question at serial
no.7 is therefore answered against the plaintiffs


IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 59 OF 2003

 Shri Pundalik Narayan Xet Pednekar, V  Shri Augusto Fernandes,

CORAM : U. V. BAKRE, J.
Citation;2013(1) MH L J 259
PRONOUNCED ON: 15th September, 2012.

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What is duty of person claiming 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.

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

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