The prescriptive easement as opposed to easement by grant is always hostile

Whereas suit was filed for recognition of right of easement and later on amendment sought in the plaint for introducing essential ingredients of easement – The amendment, if allowed at the appellate stage, found to have caused delay and prolongation of litigation and therefore, the amendment not allowed.

MADHYA PRADESH HIGH COURT (GWALIOR BENCH)

SINGLE BENCH

( Before : S.K. Dubey, J )

HEERA BAI AND OTHERS — Appellant

Vs.

THAKURI (DECEASED BY L.RS.) — Respondent

Civil Second Appeal No. 93 of 1994

Decided on : 26-03-1998

Civil Procedure Code, 1908 (CPC) – Order 6 Rule 17
Easements Act, 1882 – Section 15
Civil Procedure Code, 1908 (CPC) – Order 6, Rule 17

Cases Referred

Chapsibhai Dhanjibhai Danad Vs. Purushottam, AIR 1971 SC 1878 : (1971) 2 SCC 205 : (1971) SCR 335 Supp
Lambodar Panda and Others Vs. Ramesh Chandra Panda and Others, AIR 1958 Ori 248 : (1958) 24 CLT 117
Raychand Vanmalidas Vs. Maneklal Mansukhbhai, AIR 1946 Bom 266 : (1946) 48 BOMLR 25
Nasiruddin and Another Vs. Deokali and Others, AIR 1929 Patna 124

JUDGMENT

S.K. Dubey, J.

This is a plaintiffs second appeal against the judgment and decree dated 2nd February, 1994, passed by the District Judge, Guna in Civil Appeal No. 6-A/80 reversing the judgment and decree dated 31st August, 1980, passed in Civil Suit No. 27-A/80 by the Civil Judge, Class 1, Guna.

The appeal was admitted by this Court on 8-8-1994 on the following substantial question of law:

“Whether the suit was wrongly dismissed by the appellate Court with the observation that the plaintiffs have not proved that the right was used as an easementary right and this finding is against the record.”

Facts giving rise to this appeal are thus: The plaintiffs instituted a Civil Suit on 9-4-1979 for declaration and permanent injunction to restrain the defendant-Thakuri (since deceased) from interfering with their right of way from the ancient door which opens on the agricultural field on the East side of the defendant and joins the thoroughfare which is at a distance of about 10 to 15 feet, shown in the map annexed with the plaint. The plaintiffs averred that they are using the way from their door to go to main pathway as an easement. The defendant by raising the construction is obstructing the right of way of the plaintiffs. Therefore, the defendant be permanently restrained from raising the construction.

The defendant denied the right of way from his land and contended that the land is open agricultural land which he used to cultivate by putting Bagad. There is no right of way nor the land is used as Nistar. Plaintiffs have their main gate which opens on the thoroughfare.

The trial Court, after appreciation of evidence adduced by the parties, decreed the suit.

The Lower Appellate Court, in appeal, dismissed the suit, holding, that the plaintiffs have failed to establish their easementary right of way by prescription.

Aggrieved of this judgment and decree, the plaintiffs filed Second Appeal No. 166/81, which was allowed on 77-8-1982 and the case was remitted to the Lower Appellate Court for rendering a fresh decision after hearing parties and proper marshalling of the evidence.

The Lower Appellate Court, after reappraisal and marshalling of evidence, observed that though the plaintiffs were using the way since more than 20 years; but the land is open agricultural land over which the defendant used to cultivate every year. From the door, the distance to the main thoroughfare is about 10 hands, that is, in between 10 to 15 feet. Therefore, the total area of open land of the defendant cannot be used as casement. Ordinarily 5 feet wide area of the land would be sufficient for use of the way for pedestrian, cycle or scooter etc. The plaintiffs have their main gale/door which opens on the main thoroughfare. The plaintiffs’ case is not of easement of necessity foul of acquisition of right by prescription. In order to establish the right of pathway by the plaintiffs, it must be shown that the enjoyment of such right by the plaintiffs was peaceable and open and that the pathway was being used as of right as an easement without interruption over a period of 20 years. The use of the land during the period when there is no agriculture, was mere permissive looking to relations between the parties. The plaintiffs have failed to plead and prove the user of the way that has ripened into right of easement by prescription. Therefore, the Lower Appellate Court dismissed the suit.

After the close of hearing of this appeal, the appellants filed an application, on 20-2-1998, under Order 6, Rule 17 of the Code of Civil Procedure, to amend the plaint of which reply was filed by the respondent to oppose the amendment.

The plaintiffs in their suit seek a declaration and permanent injunction to restrain the defendant from interfering with their right of way through the door on Eastern side of their house which they were using for over 20 years. The claim is based on acquisition of easementary right by prescription u/s 15 of the Indian Easements Act, 1882 (for short ‘the Act’). 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, .

In the present case, a perusal of the plaint as it stands, clearly indicates that the plaintiffs’ suit is not based on the right of easement, as the essential ingredients for basing the claim of right of easement is the consciousness that the plaintiffs were exercising that right for using the right of way from the door which opens on Eastern side on the property of the defendant Therefore, without pleading and proof, the plaintiffs cannot obtain the decree. See — the decision in Second Appeal No. 134of 1980 (J) ; decided on 1-7-1985, Ram Krishna Singh v. Ram Sunder, 1987 (2) MPWN Note 56.

Learned counsel for the appellants referred to para 1 of the plaint and submitted that the averments are sufficient for basing the right of easement. But in the opinion of this Court, the averments in para 1 of the plaint are not sufficient as necessary ingredients pointed out by the Supreme Court, that is, consciousness of right being exercised on someone else’s property has not been suggested in para 1 of the plaint. It is also not mentioned that the defendant was well aware of that the plaintiffs a re using the right adverse to the rights of the defendant, nor there is evidence of the plaintiffs to that effect. Gulabchand (P. W. 1), plaintiff merely stated that the defendant never objected the use of the right of way from the door of the plaintiffs house. In the circumstances, when there is neither essential ingredients placed nor the evidence led to establish the right of easement. Mere user of the way, for over prescribed period is not enough, a title of easement is not complete unless it is adjudicated against a servient owner. See – a decision of this Court in Second Appeal No. 194 of 1967, decided on 20-2-1973 at Bench at Gwalior reported as a short noted decision in Phoduram v. Bhagwandas 1974 MPLJ 4.

Coming to the application for amendment, true the amendment can be allowed at the appellate stage and has to be refused in rare cases, where a new case is proposed to be raised or is not bona fide or may cause irreparable injury to the other side. In the suit instituted in the year 1979, the appellants have come up in second round before this Court; but the appellants did not take care even after remand of the case to amend the plaint so as to incorporate the essential ingredients of Section 15 of the Act which are required for establishing the right of easement by prescription. The plaintiffs have not even led evidence to that effect though the trial Court framed issue No. 1. If the amendment is permitted that will necessitate remand and re-trial. The application, in the circumstances, is nothing but to prolong the litigation. After all there should be an end and finality to litigation. Therefore, in the circumstances of the case, the application under Order 6. Rule 17 of the Code of Civil Procedure, cannot be allowed and is dismissed.

In the result, the appeal fails and is dismissed with no order as to costs.

(1998) AIR(MP) 273 : (1998) 4 CivilLJ 715 : (1998) 2 JabLJ 89 : (1998) 2 MPLJ 225 : (1998) 2 RCR(Rent) 251