Whether court can register civil suit if delay condonation application is not allowed?

The word "institute" as per Black's Law Dictionary means "to begin or start; commence." Thus, the bar under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal or revision under the provisions of the Maharashtra Land Revenue Code would apply only if the civil suit has been "instituted" under Section 143(4) of the Maharashtra Land Revenue Code which means that if the civil suit is filed. In the present case, the civil suit having been filed after the period of limitation, the application praying for condonation of delay was filed. It is established practice that until the delay is condoned, the civil suit is not registered and the civil Court cannot look into the civil suit. In these facts, it cannot be said that the civil suit was "instituted" by the respondent no.5 and his wife as per Section 143(5) of the Maharashtra Land Revenue Code. Consequentially, the bar created by Section 143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision to challenge the decision of the Tahsildar will not apply. In these facts, it cannot be said that the civil suit was instituted as per Section 143(4) of the Maharashtra Land Revenue Code, 1966.

10. Shri Mirza, the learned advocate for the petitioners submits that the application filed by the respondent no.5 and his wife under Section 5 of the Limitation Act is a part and parcel of the civil suit and therefore, it has to be treated that the civil suit was instituted as contemplated by Section 143(4) of the Maharashtra Land Revenue Code. The submission as made on behalf of the petitioners is misconceived and contrary to the established principles of law. The application praying for condonation of delay can never be part and parcel of the civil suit and the civil suit is not registered until and unless the delay is condoned. It is the settled law that Court gets its jurisdiction to entertain and decide the proceedings before it, only after the delay is condoned and till that time the Court does not get the jurisdiction to entertain the proceedings.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2977/2012

Decided On: 17.11.2014

 Nago Hari Zangte Vs. State of Maharashtra

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2015(5) ALLMR 279

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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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Whether right of way can be transferred by unregistered document?

In the present petition the question relevant to be considered and
decided is not whether possession of the land comprising in the form of nine feet
wide way was delivered by the respondent to the petitioners or not or whether the
respondent is creating hindrance in the peaceful use of the same by petitioners or
not but the question to be addressed is whether conferment of right upon the
petitioners over the other land of the respondent to use it as a way to have access
to the land sold to them by way of the document in question amounts to creation,
declaration, assignment, limitation or extinguishment of a right, title or interest to
or in an immovable property within the meaning of Section 17 (1)(b) of the Act.
This provision provides that any instrument which purports or operates to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title
or interest, whether vested or contingent, of the value and of one hundred
rupees, upwards to or in immovable property is compulsorily registrable. In the
present case, the petitioners are claiming that land measuring 599 square yards
was sold by the respondent to them by way of document dated 15.12.2000. A
reading of this document clearly shows that the land described therein was sold
by respondent to the petitioners in lieu of sale consideration of Rs.1,07,820/- and
possession of it was also delivered to them and from the date of its execution all
rights stood transferred in favour of the petitioners and that of the respondent got
extinguished. Thus, the document in question is an instrument requiring
compulsorily registration as per the requirement of Section 17(1)(b) of the Act.
Although, by way of document in question the respondent further agreed to
provide the petitioners right of way to have access to the land so sold over his
other land, but conferment of that right cannot be said to be a right separate and
independent from the land so sold and the same cannot be considered in isolation.
The respondent agreed to provide the petitioners right to way over his other land
only by the reason that the land described in the document was sold by him to the
petitioners. Thus, the right so conferred is part and parcel of the sale of land, and
the same has been conferred by the same document and, therefore, it also
required compulsory registration.
Apart from that, even if for the sake of arguments, it is admitted that
conferment of right of way is a separate right independent of the sale of land,
even then, in my considered opinion, such right of way can be conferred by a
registered document only. As per the document in question and as per the claim
of the petitioners themselves, the respondent agreed to provide them a nine feet
wide way over his other land. What are the consequences of such conferment ? In
my opinion as a result of such conferment right, title or interest in the land
comprising in the way which was vested in respondent, got extinguished and
limited and right to use it as a way got created and declared in favour of the
petitioners. Thus, as per the requirement of Section 17(1)(b) of the Act as a result
of conferment of right of way on the petitioners right, title and interest of the
respondent extinguished and limited and right was created and declared in favour
of the petitioners and any document conferring any such right is compulsorily
registrable. It is also to be noted that as per the definition of the term 'immovable
property' as provided under Section 2(6) of the Act, the term 'immovable property'
includes rights to ways also. In the light of the provisions of Section 17(1)(b) of
the Act, if the term 'immovable property' is considered, it becomes manifest that a
right of way can be created or conferred by a person over his land in favour of
any other person by a registered document only. In the present case also the
respondent could have conferred upon the petitioners right of way over his land
by executing a registered document only. In the case in hand although there is no
transfer of ownership in the land over which the right of way is being claimed by
the petitioners and which has been denied by the respondent but right of way is
included in the definition of immovable property as defined under Section 2 (6) of
the Act. Thus, the document which creates, declares, assigns, limits or
extinguishes a right of way in or over a land is required to be registered.
Effect of non-registration of documents required to be registered is
provided in Section 49 of the Act. It provides that no document required by
Section 17 of the Act to be registered shall affect any immovable property
comprised therein or shall be received as evidence of any transaction affecting
such property or conferring such rights unless it is registered. It is well settled
legal position that a document required to be registered, if unregistered, is not
admissible in evidence under Section 49 of the Act. In the present case,
conferment of right of way by respondent over his other land in favour of the
petitioners but transfer of immovable property as per the definition of the term as
provided under Section 2 (6) and it is not less than creation, declaration and
assignment of property rights in favour of the petitioners and extinguishing of
right, interest and title of the respondent in his land, it could be effected by a
registered document only and the document in question being unregistered is not
admissible in evidence.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL WRIT PETITION No.18594/2011.

Shree Chand & Ors. Vs. Civil Judge (Sr.Div.) & Anr.

Date of Order : 25.5.2016
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL

Citation:AIR 2016 Raj 191

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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 plead and prove easement of right of way?

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,

(since deceased)

Versus

Shri Augusto Fernandes,

Coram

: U. V. BAKRE, J.

PRONOUNCED ON: 15th September, 2012.
Citation: AIR2012Bom182,2012(6)ALLMR649, 
2013(1)MhLj259

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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 remedy of civil suit is available to raise dispute regarding right of way from boundary of other field?

The   contention   of   Shri   Ghuge,   the   learned 
counsel for the applicants is that, there is no right of way 
available to the respondent nos. 3 to 10 from the Dhura of 
Gat No. 62.   Shri Ghare, the learned counsel appearing for 
the respondent nos. 3 to 10 invited my attention to Section 
22 of the Mamlatdar's Courts Act,   and submitted that the 
remedy of civil suit is available to raise a dispute regarding 
right of way over the boundary of Gat No. 62 and he submits 
that any observation regarding right of way by the authorities 

below in the impugned order would naturally not come in 
the way of the Civil Court in dealing with the aspect of the 
matter. 
In view of this, it is open for the applicants to file 
a civil suit raising all disputes regarding the right of way or 
the alternate way and claim appropriate decree or the orders 
and no interference is called for in the orders impugned in 
this   civil   revision   application. 

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


CIVIL REVISION APPLICATION NO. 140/2011
Shankar Govindrao Sarnaik, V Sub Divisional Officer,
CORAM: R. K. DESHPANDE, J.

DATE    : 17   JANUARY, 2012
Citation; 2012(3) ALLMR669

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