Ashutosh Agrawal Vs Union Of India

Ashutosh Agrawal S/o Matadin Agrawal, aged about 43 years, R/o Near Railway Station Champa, Tahsil Champa, Police Station & Post Champa, District Janjgir-Champa, Chhattisgarh.

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... Appellant/Plaintiff

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versus

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Union of India through Its General Manager, South East Central Railway, Bilapsur, Chhattisgarh, District Bilaspur, Chhattisgarh.

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General Manager, South East Central Railway, Bilaspur, Chhattisgarh, District Bilaspur, Chhattisgarh.

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A.E.N., South East Central Railway, Champa, Tahsil Champa, District Janjgir – Champa, Chhattisgarh.

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Divisional Railway Manager, South East Central Railway, Bilaspur, District Bilaspur, Chhattisgarh.

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... Respondents/Defendants

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For Appellant :- Mr. Manoj Paranjpe, Advocate.

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For Respondent-UOI :- Mr. Ramakant Mishra, Deputy Solicitor General of India.

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Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board

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10/07/2025

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The appellant/plaintiff preferred this appeal under Section 96 of

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the Code of Civil Procedure calling in question legality, validity

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and correctness of the judgment and decree dated 12.07.2016 by which suit filed by the plaintiff/appellant herein for declaration of title and permanent injunction has been dismissed finding that he has failed to establish his easementary right over the suit.

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(For the sake of convenience, parties would be referred hereinafter as per their status shown in the suit before the trial Court.)

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The case of the plaintiff projected before the trial Court states as under:-

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(i) Vide memo dated 18.02.2004, Ex.P/1, the land in question 3’x31’ = 93 square-meter, railway land was allotted to the plaintiff to use the said land for right of way on the license fee of ₹ 86,053/- and Rs. 5,000/- for 10 years and ultimately, that license was revoked by order dated 22.02.2013 vide Ex.P/6, finding that the plaintiff has shifted his accommodation to the other place and he is using the land in question for the nonresidential purpose as the residential premises of the plaintiff is being used for lodge/non-residential purpose leading to the filing of the suit by the plaintiff for the permanent injunction that he is entitled to use uninterruptedly land in question pursuant to permission letter dated 18.02.2004 .

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(ii) The defendants filed their written statement stating inter-alia that the permission granted to the plaintiff vide memo dated 18.02.2004 (Ex.P/1) has already been revoked vide order dated 22.02.2013 (Ex.P/6), therefore, he has no right to continue to use the land in question and even the agreement was not executed by the plaintiff and, as such, the plaintiff is not entitled to continue to use the suit land and the suit deserves to be dismissed as the plaintiff is using the residence land for nonresidential purpose, therefore, right of way by memo dated 18.02.2004 (Ex.P/1) has rightly been revoked vide order dated 22.02.2013 (Ex.P/6) and the suit deserves to be dismissed.

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(iii) The trial Court after framing the issues has recorded the finding that the plaintiff has no right to easement over the suit land and proceeded to dismiss the suit against which the instant appeal has been preferred by the plaintiff.

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Mr. Manoj Paranjpe, learned counsel for the plaintiff/appellant, would submit that the trial Court is absolutely unjustified in dismissing the suit of the plaintiff by recording the findings which are perverse to the records. He would also submit that the trial Court ought to have seen that the plaintiff/appellant was

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using the land in question, which is a way to his residence, since 10 years pursuant to permission granted by the defendants/respondents herein, therefore, there is no reason for not granting decree for declaration of title and permanent injunction in favour of the plaintiff. As such, the impugned judgment and decree deserve to be set aside and the instant appeal deserves to be allowed.

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Mr. Ramakant Mishra, learned DSG appearing for the respondents/defendants, would support the impugned judgment and submit that the plaintiff was granted right of way for a period of 10 years by memo dated 18.02.2004 (Ex.P/1) which he has misused by changing his residence for nonresidential purpose and, therefore, the same has rightly been revoked by order dated 22.02.2013. As such, the instant appeal deserves to be dismissed.

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I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously.

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The plaintiff, in the suit, is claiming easementary right of way in land in question for which permission was granted by memo

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dated 18.02.2004 vide Ex.P/1 by the Competent Authority/respondents to use the suit land for approaching his residence, which has been revoked on 22.02.2013 vide Ex.P/6, finding that the residence of the plaintiff is being used for the lodge, therefore, the purpose for which the permission was granted has come to an end. However, the plaintiff has invoked Section 15 of the Indian Easements Act, 1882 (for short “the Act of 1882”).

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At this stage, it would be appropriate to notice Section 15 of the

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Act of 1882 which provides for acquisition by prescription and which states 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

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the institution of the suit wherein the claim to which such period relates is contested.

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Explanation I .- ***** Explanation II. - ***** Explanation III .- *****

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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 perceptibly 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 words "thirty years" were substituted."

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A close reading of Section 15 of the Act of 1882 would show, that under Section 15 of the Act of 1882, by prescription a right of easement of way can be acquired provided following conditions are fulfilled :-

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(i) the right to access has been peaceably enjoyed; (ii) openly; (iii) as an easement; (iv) as of right; (v) without interruption; and (vi) for last 20 years.

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Section 19 of the Act of 1882 speaks about passing of easement

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on account of transfer of dominant heritage. Under this section if dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer of 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. The illustration to this section makes the provision more clear.

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The purpose of elucidating the law as of contemplated under Sections 4, 15 and 19 of the Act of 1882 is that whether in the given case in hand, the plaintiff is having easementary right over the suit land and whether he has acquired right of way by acquisition on the land in question.

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There cannot be any doubt that easement is a right and the same is not a mercy. If plaintiff is having easementary right, certainly he can establish it and exercise that right by filing suit if defendant obstruct him to exercise the said right. If the easementary right is in respect of way on the servient heritage to approach dominant heritage, plaintiff is bound to prove his case on the above said tests in order to bring his case under Section 15 of the Act of 1882.

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12.It is well settled law that right of easement is 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 and whenever a right of easement is claimed, pleading should be precise and clear and it should not be vague

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as right of easement is one which a person claims over a land which is not his own.

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Gale on Easements (15^th Edn.) (Pages 3 and 4) states the precise nature of the right of 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 dimunition 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 same book, the learned author states 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, 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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14.The Supreme Court in case of Justiniano Antao and others v. Bernadette B. Pereira (Smt.)1 , has held that in order to establish a

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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. The report status as under:-

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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 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 an 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

1 (2005) 1 SCC 471

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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 marked and court as Ext.D.W.3/A in the 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."

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15.In above stated decision the Supreme Court has 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 the right of prescription to the detriment of the other party, one has to aver specific pleading and categorical evidence has to be adduced.

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16.Coming to the facts of the present case, it is quite vivid that there is no precise and clear pleading with regard to the nature of easement claimed by the plaintiff and even the date of grant of

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permission to use the suit land is 18.02.2004 vide Ex.P/1, and the date of revocation is 22.03.2004 vide Ex.P/6 and the suit was filed on 25.02.2013 and the period of 10 years has not expired and 20 years as mentioned on Section 15 of the Act of 1882 has not completed and, as such, the plaintiff has failed to establish that he was enjoying the Government land as a right of way for last 20 years without interruption. In absence of necessary averments and further proof of evidence, the right of easement under Section 15 of the Act of 1882, is not established entitling the plaintiff to decree for declaration and permanent injunction. As such, the trial Court is absolutely justified in not granting decree for declaration and permanent injunction in favour of the plainttiff, accordingly, the first appeal is dismissed . No order as to cost(s). Decree be drawn up accordingly.

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/ -

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Sd/- (Sanjay K. Agrawal) Judge

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Ankit

Ashutosh Agrawal v. Union Of India

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Ashutosh Agrawal v. Union Of India

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