Dismissed

Geeta Devi and Another v. Sanjay Jadwani

Chhattisgarh HC13 Jan 2021SA/124/2010

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed a second appeal filed by plaintiffs who claimed an easementary right over defendants' land. The court found no substantial question of law as the plaintiffs failed to prove continuous, peaceful enjoyment of light and air for the mandatory twenty-year period required under Section 15 of the Indian Easements Act, 1882.

What did the court decide?

Second appeal dismissed in limine without notice to the other side.

Geeta Devi and Another Vs Sanjay Jadwani — Property and Title | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Second Appeal No. 124 of 2010

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1. Smt. Geeta Devi Namdeo, W/o Shri Balbahadur Namdeo, Aged about 67 years.

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2. Rajesh Kumar Namdeo, S/o Late Ballu Prasad Namdeo, Aged about 53 years.

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Both are R/o Jawahar Nagar, Raipur, Tahsil and
District Raipur, Chhattisgarh.

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 ---Appellants/Plaintiffs

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Versus

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Sanjay Jadwani S/o Late Manohar Jadwani,
Proprietor M/s Sanjay Auto Mobiles, M.G. Road,
Raipur, Tahsil and District Raipur, Chhattisgarh.

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 --- Respondent/Defendant

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For Appellants :-Mr. Nitesh Jha on behalf of
Mr. R.N. Jha, Advocate
For Respondent:-None

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order on Board

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13/01/2021

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1.Heard on admission and formulation of
substantial question of law in this second
appeal preferred by the appellants/plaintiffs
under Section 100 of the CPC against the

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impugned judgment and decree passed by the first
appellate Court affirming the judgment and

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decree passed by the trial Court dismissing the
suit of the plaintiffs.

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2.Mr. Nitesh Jha on behalf of Mr. R.N. Jha,
learned counsel for the appellants/plaintiffs,
would submit orally as well as in written
submission that both the Courts below are
absolutely unjustified in dismissing the suit by
holding that plaintiffs have failed to prove the
easementary right over the suit land in terms of
Section 15 of the Indian Easement Act, 1882, as
such, the appeal deserves to be admitted by
formulating substantial question of law in this
regard.

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3.Plaintiffs filed a suit for declaration of title
and permanent injunction stating inter alia that
the defendant be restrained from raising
construction and in alternative demolition of
his construction as in the western side of
plaintiffs' house, they have opened 20 windows
through which they enjoy beneficial easementary
rights of light and air and due to the
construction raised by the defendant in his land
which is attached to the western side of the
plaintiffs' land, the plaintiffs are unable to
enjoy the easementary rights of light and air

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which they have been using for the last 20
years. The suit was opposed by the defendant by
filing written statement stating that no such
easementary right was ever available to the
plaintiffs.

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4. Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit of the plaintiffs finding no merit which was affirmed by the first appellate Court in the appeal preferred by them.

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5. The term “Easement” has been defined in Section 4 of the Indian Easements Act, 1882 (henceforth 'the Act of 1882'). The definition runs thus:

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“4. “Easement” definded. - An easement 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.

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Dominant and servient heritages and
owners. - 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 thereof the
servient owner.

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Explanation. - In the first and second
clauses of this section, the expression
“land” includes also things permanently
attached to the earth; the expression
“beneficial enjoyment” includes also

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possible convenience, remote advantage,
and even a mere amenity; and the
expression “to do something” includes
removal and appropriation by the dominant
owner, for the beneficial enjoyment of the
dominant heritage, of any part of the soil
of the servient heritage, or anything
growing or subsisting thereon.”

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6.Section 15 of the Act of 1882 provides for

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acquisition by prescription as under :

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“15. Acquisition by prescription.- Where
the access and use of light or air to and
for any building have been peaceably
enjoyed therewith, as an easement, without
interruption, and for twenty years,

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and where support from one person's
land, or things affixed thereto, has been
peaceably received by another person's land
subjected to artificial pressure, or by
things affixed thereto, as an easement,
without interruption, and for twenty years,

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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,

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the right to such access and use of
light or air, support or other easement
shall be absolute.

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Each of the said periods of twenty
years shall be taken to be a period ending
within two years next before the
institution of the suit wherein the claim
to which such period relates is contested.

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****

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Explanation IV. - In the case of an
easement to pollute water, the said period
of twenty years begins when the pollution
first prejudices percebtibly the servient
heritage.

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When the property over which a right
is claimed under this section belongs to
the Government, this section shall be read
as if, for the words “twenty years” the

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words “thirty years” were substituted.”

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7.A close reading of Section 15 of the Act of 1882
would show that a right to way or any other
easement can be acquired by prescription under
Section 15 of the Act of 1882 provided the right
to access/way has been enjoyed:

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(i) peaceably,

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(ii) openly,

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(iii) as an easement,

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(iv) as of right,

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(v) without interruption, and

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(vi) for last 20 years.

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8.Section 19 of the Act of 1882 speaks about
passing of easement on account of transfer of
dominant heritage. Section 19 reads as under:

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“19. Transfer of dominant heritage passes
easement. - Where the dominant heritage is
transferred or devolves, by act of parties
or by operation of law, the transfer or
devolution shall, unless a contrary
intention appears, be deemed to pass the
easement to the person in whose favour the
transfer or devolution takes place.”

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9. The purpose of elucidating the law contemplated in Sections 4, 15 and 19 of the Act of 1882 is that whether in the given case the plaintiffs are having easementary right and whether they have acquired such right by prescription.

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10. There cannot be any doubt that easement is a

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right and the same is not a mercy. If a
plaintiff is having an easementary right,
certainly he can establish it and continue to
exercise it by filing a suit if the defendant
obstructs him to execute it. If an easementary
right is in respect of a way on the servient
heritage to approach the dominant heritage, the
plaintiff is bound to prove his case on the
foregoing tests in order to bring his case
within the purview of Section 15 of the Act of
1882.

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11.It is a well settled law that a right of
easement is a precarious 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.

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12. Gale on Easements (15^th Edition; Pages 3 and 4) states the precise nature of an easement as under:

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“It is of the essence of an easement that,
as between two pieces of land, there is a
shift in the equilibrium of natural rights
incident to their ownership, a diminution in
the natural rights of one being accompanied
by a corresponding artificial addition to
the natural rights of the other; the result
being that a conveyance of either operate
automatically, and can only operate, as a
transfer of natural rights diminished, or of
natural rights plus an additionally acquired
right.”

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At page 415 of the book, the learned author

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states as thus:

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“Under the present system of pleading, it
is conceived that, whether the section be
brought against the servient owner or a
stranger, a party cannot safely allege his
right to an easement generally, but should
state specifically the manner in which he
claims title to the easement, whether by
grant (actual or lost), prescription at
common law, or under the Prescription Act,
and in many cases it is advisable to plead,
alternatively, a title by all three
methods.”

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13.InJustiniano Antao & Ors. Vs. Bernadette B.

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Pereira (Smt.)1, the Supreme Court held that in
order to establish a right by way of
prescription, there should be specific pleading
and categorical evidence in general and
specifically that since what date to which date
one is using the access for last 20 years. It
held thus :-

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“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

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1(2005) 1 SCC 471

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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

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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.”

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14.In the above referred case, their Lordships held

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that there should be categorical pleadings that
since what date to which date one is using the
access for the last twenty 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.

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15.InSurendra Singh Inder Singh and another v.
Phirozshah Bairamji and another2, a Division
Bench of the Nagpur High Courd held thus:

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“9. It is necessary to point out that
pleadings in a case dealing with easement
have to be very precise. As has been stated
by Peacock in his 'Law Relating to
Easements in British India', Third Edition
at page 608:

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'As an easement is not one of the

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2 AIR 1953 Nagpur 205

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ordinary rights of ownership, it is
necessary that either party claiming or
relying on an easement should plead the
nature of this title thereto so as
clearly to show the origin of the right,
whetheritarisesbystatutory
prescription, or express or implied
grant, or the old common law method of a
lost grant'.”

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16. Reverting to the facts of the present case

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in light of the aforesaid legal position, it is
quite vivid that learned trial Court has clearly
recorded a finding that plaintiffs have failed
to prove that they are using the said easement
for the last 20 years peacably, uninterruptedly
and without interference of the defendant.

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Learned first appellate Court has also recorded
that plaintiffs' witness namely Sanjay Jadwani
(PW -1) has clearly admitted that plaintiffs
have opened the said windows for the last 7-8
years, as such, the said finding recorded by the
trial Court affirmed by the first appellate
Court that plaintiffs have failed to prove the
requirement of Section 15 of the Indian Easement
Act that they have been using the same
easementary right for the last 20 years
peacably, uninterruptedly and without any
interference from the defendant is a finding of
fact based on evidence available on record which

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is neither perverse nor contrary to the record.

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I do not find any substantial question of law.

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17.The second appeal, being devoid of merit,

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deserves to be and is accordingly dismissed in limine without notice to the other side.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Geeta Devi and Another v. Sanjay Jadwani

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Geeta Devi and Another v. Sanjay Jadwani

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