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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“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
