The relevant provision of Section 15 is extracted thus :
“Section 15 — Acquisition by prescription : and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto as an easement, and as of right, without interruption, and for twenty years, the right to such access……….. easement shall be absolute.”
Easement as defined in Section 4 of the Act, is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.
The land for the beneficial enjoyment of which the right exists, is called the ‘dominant heritage’ and the owner or occupier thereof the ‘dominant owner’; the land on which the liability is imposed is called the ‘servient heritage’, and the owner or occupier there of the ‘servient owner’.
The words “as an easement and as of right” in the afore quoted provision of Section 15 clearly indicates that it is a restriction in favour of the owner or occupier of immovable property of the rights of owner ship of the immovable property of another owner. The restriction cannot be built up or asserted with lout consciousness of the rights which are restricted. If the right that a person is exercising is not with the consciousness that he is restricting another person’s right of ownership, he cannot be said to be enjoying a right of easement. Whether the right claimed “as easement” or as rights of ownership depends upon what the plaintiff intended to do. The question of the animus of plaintiff, therefore, requires, determination in each case.
The Supreme Court in Chapsibhai Dhanjibhai Danad Vs. Purushottam, has observed that to establish a prescriptive acquisition of a right one must prove that the use-was not permissive. That he was exercising that right on a property treating it as someone else’s property. In fact any assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement, the person who asserts the hostile clan n must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved, he cannot establish a prescriptive acquisition of the right.
The prescriptive easement, as opposed to easement by grant is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man’s property and as such it resembles in some respects the claim to ownership by adverse possession of property, Both are of hostile origin, and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement, he must assert limited rights of user on a property and acknowledge its ownership in someone else. See — Full Bench decision of Bombay High Court in Raychand Vanmalidas Vs. Maneklal Mansukhbhai, .
In order to establish the right of pathway that has ripened into right of easement, it must be shown that the enjoyment was as of right peaceable and open without interruption that too over a period of 20 years, attributable to any permission on the owner’s part. According to the conditions in India, there is a presumption that the user is permissible and the person claiming the right must prove the acquisition of such right u/s 25 of the Limitation Act, 1963 or Section 15 of the Act. Then only a plaintiff can obtain a decree. See — Nasiruddin and Another Vs. Deokali and Others, Lambodar Panda and Others Vs. Ramesh Chandra Panda and Others, .
