Case Note & Summary
The appellant, original plaintiff, filed a suit seeking a declaration of easement of way by prescription over a motorable access running through the defendants' property bearing survey no.360/18 of Calangute village, Goa. The plaintiff claimed that she, her family members, and the public had used the access peaceably and openly as of right for over 20 years. The defendants denied the claim. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The plaintiff then filed a second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court examined the concurrent findings of fact and found that the plaintiff had failed to prove the essential ingredients of a prescriptive easement, particularly user as of right, peaceably, openly, and without interruption for the statutory period of 20 years as required under Section 15 of the Easements Act, 1882. The court noted that the plaintiff's own evidence showed that the user was permissive or by acquiescence, not as of right. The High Court held that no substantial question of law arose and dismissed the appeal, affirming the concurrent findings.
Headnote
A) Easement Law - Prescriptive Easement of Way - Section 15 Easements Act, 1882 - Burden of Proof - The plaintiff claimed a prescriptive right of way over the defendants' property. The courts below concurrently held that the plaintiff failed to prove user as of right, peaceably, openly, and without interruption for 20 years. The High Court in second appeal declined to interfere, holding that the findings of fact were not perverse and no substantial question of law arose. (Paras 1-10) B) Civil Procedure - Second Appeal - Section 100 Code of Civil Procedure, 1908 - Interference with Concurrent Findings - The High Court reiterated that in a second appeal, interference with concurrent findings of fact is permissible only if the findings are perverse or based on no evidence. The court found no such infirmity and dismissed the appeal. (Paras 1-10)
Issue of Consideration
Whether the plaintiff has acquired an easement of way by prescription over the defendants' property and whether the concurrent findings of fact recorded by the courts below are perverse or suffer from any error of law warranting interference in second appeal.
Final Decision
The High Court dismissed the second appeal, affirming the concurrent findings of the courts below that the plaintiff failed to prove a prescriptive easement of way.
Law Points
- Easement of way by prescription
- Section 15 Easements Act 1882
- Concurrent findings of fact
- Second appeal limited to substantial question of law
- Section 100 CPC
- User as of right
- Acquiescence
- Burden of proof
