Case Note & Summary
The case involves a second appeal filed by the original plaintiffs, Wasudeo and Leeladhar Kale, against the judgment of the first appellate court which reversed the trial court's decree in their favor. The plaintiffs had filed a suit for mandatory injunction seeking removal of a thorny compound installed by the defendant, Ashok Pidurkar, on the Dhura (dyke) of land Gat No. 117, and for a permanent injunction restraining the defendant from interfering with their right to use the Dhura for ingress and egress to their agricultural lands. The plaintiffs claimed a right of way by prescription over the Dhura, asserting that it had been used since the time of the original owners, Zitaji and Madhav, and their successors. The land originally comprised Survey No. 39, which was partitioned among successors and later consolidated into various Gat numbers. The plaintiffs' lands were Gat Nos. 121/1 and 121/2, while the defendant's land was Gat No. 117. The plaintiffs alleged that the defendant installed a thorny compound on the Dhura in 2005, obstructing their access. The trial court decreed the suit, but the first appellate court reversed it, holding that the plaintiffs failed to prove the right of way. The High Court admitted the second appeal on the substantial question of law whether the first appellate court's finding was perverse. The High Court analyzed the evidence, including the testimony of witnesses and the spot panchnama, and found that the plaintiffs had established continuous and uninterrupted user of the Dhura for over 20 years, and that the defendant's predecessor had acquiesced. The court held that the first appellate court's finding was perverse and not based on evidence. Consequently, the High Court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decree, directing the defendant to remove the thorny compound and restraining him from interfering with the plaintiffs' right of way.
Headnote
A) Easement - Right of Way by Prescription - Section 15 of the Indian Easements Act, 1882 - The plaintiffs claimed a right of way over the Dhura of Gat No. 117 for agricultural access, asserting use since the time of original owners. The court held that long, continuous, and uninterrupted user for over 20 years, coupled with the defendant's predecessor's acquiescence, established the right by prescription. The defendant's installation of a thorny compound was an obstruction that warranted removal. (Paras 2-10) B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 of the Code of Civil Procedure, 1908 - The appeal was admitted on the substantial question of law regarding the finding of the first appellate court that the plaintiffs failed to prove the right of way. The High Court reversed the first appellate court's decision, holding that the evidence clearly established the right of way by prescription and that the first appellate court's finding was perverse. (Paras 1, 11-12) C) Property - Easement - Acquiescence - The court noted that the defendant's predecessor-in-title had not objected to the plaintiffs' use of the Dhura for many years, indicating acquiescence. This supported the claim of prescriptive easement. (Paras 8-10)
Issue of Consideration
Whether the plaintiffs have acquired a right of way by prescription over the Dhura (dyke) of Gat No. 117 for ingress and egress to their agricultural lands, and whether the defendant's installation of a thorny compound obstructing such right is liable to be removed.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court, and restored the trial court's decree. The defendant was directed to remove the thorny compound from the Dhura of Gat No. 117 and was restrained from interfering with the plaintiffs' right to use the Dhura for ingress and egress.
Law Points
- Easement by prescription
- Right of way
- Mandatory injunction
- Adverse possession
- Acquiescence
- Section 15 of the Indian Easements Act
- 1882
