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
