This second appeal was filed for declaration of title and permanent injunction regarding easement rights. The High Court held that the plaintiff failed to prove easementary rights due to defective pleading and evidence. The appeal was dismissed summarily without notice.
Second appeal dismissed in limine without notice to the other side; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 312 of 2007
Bedram S/o Naharlal, Aged about 60 years, R/o Tulsipur, Rajnandgaon, Distt. Rajnandgaon, Chhattisgarh.
---- Appellant
Versus
----Respondents
For Appellant : Mr. Ajit Singh, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal Order On Board
08.08.2019
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Court, in the matter of Hero Vinoth (Minor) Vs. Seshammal1 to demonstrate that the legal effect of the terms or a term of a document would give rise to substantial question of law for determination in this second appeal.
1 2007 (1) MPLJ 17
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and special right claimed over the land of another. A party claiming or relying on easement should plead the nature of title thereto as to clearly show the origin of right, whether it arises by statutory prescription etc. and whenever a right of easement is claimed pleading should be precise and clear and it should not be vague, as right of easement is one which a person claims over a land which is not his own.
“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
2 (2005) 1 SCC 471
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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
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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.”
Sd/(Sanjay K. Agrawal) Judge
Harneet
2 issues framed by the court
Whether the findings of lower courts dismissing the plaintiff's claim to easementary right over the suit pathway are perverse or warrant a second appeal.
Whether the demarcation report (Exhibit P/5) establishes a right of easement over the suit pathway.
Colour shows how this judgement treated each authority
Hero Vinoth (Minor) Vs. SeshammalReferred¶18
_Hero Vinoth (Minor) Vs. Seshammal_
Justiniano Antao & Ors. Vs. Bernadette B. Pereira (Smt.)Referred¶27
_Justiniano Antao & Ors. Vs. Bernadette B. Pereira (Smt.)_
1 provisions across 1 enactments
Bedram S/o Naharlal
Mohanlal S/o Sufal Kalar
Ashok Kumar S/o Jhumuklal Barai
Ku. Rajnibai W/o Brijlal Soni
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
