SHORT NOTES ON LIMITATION ACT PART 4

S 25 Acquisition of easement by prescription

The following conditions must be satisfied for the acquisition of right to easement:

a) In the case of access and use of light or air to and for any building: that they have been enjoyed therewith-

1)Peaceably

2) as an easement,

3) as of right,

4) without interruption,

5) for 20 years(or in case of government property for 30 years).

b) in the case of any way,or watercourse or the use of any water or any other easement: that it has been enjoyed therewith-

1) Peaceably,

2) openly,

3) by any person claiming title thereto,

4)as an easement,

5) of right,

6) without interruption,

7) for 20 years(or in case of government property for 30 years).

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Doctor not writing necessary details in prescription-Whether it amounts to medical negligence?

Arvind Shah (Dr.) v Kamlaben Kushwaha [III (2009) CPJ 121]

Date of Decision: 30.04.2009

The complainant alleged that her deceased son, aged 20 years and otherwise healthy, died as a result of medical 

negligence on the part of the appellant doctor (original opposite party) who administered wrong treatment. The 

State Commission awarded to the complainant a compensation of Rs. 5 lakh with interest and costs. In appeal, 

the National Commission, on consideration of the material on record, came to the conclusion that the two 

medical prescriptions, which the doctor sought to deny, could have been written only by him. It also observed 

that though, in the appeal, the doctor admitted for the first time to having treated the patient; he did not produce 

any prescription on record. More important, the two prescriptions available on record did not mention any of the 

patient's complaints/symptoms, the doctor's clinical observations on examining the patient or his diagnosis of 

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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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