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Ganga Sahai and ors. Vs. Shib Charan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All407(2); 25Ind.Cas.499
AppellantGanga Sahai and ors.
RespondentShib Charan
Cases ReferredSheikh Khoda Bux v. Sheikh Tajuddin
Excerpt:
easements act (v of 1882), section 15 - right of easement, acquisition of--burden of proof. - - 'with reference to the chabutra that court found that both the kuchha portion and the masonry portion of the chabutra stands on the plaintiff's land and the defendants have failed to prove that they have acquired title therein. the right the appellants claimed was founded upon section 15 of act v of 1882. that section in paragraph 3 lays down that where a right of way has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for 20 years, the right to such easement shall be absolute. the whole question really in dispute between the parties now is whether this right of way has been peaceably and openly enjoyed by the..........one foot north was concerned, the chabutra was on their land. with reference to the rest of the land they claimed a right of way over the land. in their written statement they speak about this portion as having been used as a passage to the house of the defendants for more than 20 years. there is no other passage except the said passage for the egress and ingress of the defendants nor can there be any. the court of first instance gave a decree for the removal of a certain portion of the chabutra, which was made of earth and which adjoined the pucca chabutra, but dismissed the claim so far as the pucca chabutra was concerned. it passed no orders regarding the relief of a perpetual injunction except by saying that the rest of the plaintiff's claim was dismissed.2. the lower appellate.....
Judgment:

George Knox, J.

1. Pundit Sheo Charan, respondent in this second appeal, was plaintiff in the Court of first instance. He there sued for the removal of a chabutra which, he said, had been made by the defendants on his land and also for an injunction on the defendants forbidding them to pass over the land covered by the chabutra. The chabutra in dispute will be found set out on a map which is on the record. It is that portion which is coloured pink. It will be observed from the map that the portion coloured pink stands in front of the house of the plaintiff. The boundary line separating the plaintiff's house from the defendants' house cuts right along the limit of the chabutra marked A B. The defendants, now appellants, have a similar chabutra running along the front of their house and it is coloured yellow. The defendants allege that their boundary extended one foot north of the house and that so far as that one foot north was concerned, the chabutra was on their land. With reference to the rest of the land they claimed a right of way over the land. In their written statement they speak about this portion as having been used as a passage to the house of the defendants for more than 20 years. There is no other passage except the said passage for the egress and ingress of the defendants nor can there be any. The Court of first instance gave a decree for the removal of a certain portion of the chabutra, which was made of earth and which adjoined the pucca chabutra, but dismissed the claim so far as the pucca chabutra was concerned. It passed no orders regarding the relief of a perpetual injunction except by saying that the rest of the plaintiff's claim was dismissed.

2. The lower Appellate Court granted the plaintiff's claim in full. 'With reference to the chabutra that Court found that both the kuchha portion and the masonry portion of the chabutra stands on the plaintiff's land and the defendants have failed to prove that they have acquired title therein. With reference to the right of way claimed to the north over the lands in dispute, the lower Appellate Court held that the appellants had not proved that, they acquired any such right. It discussed the evidence bearing upon the point and particularly the Municipal Board's order of 1893, upon which the appellants appear to have laid much stress. The right the appellants claimed was founded upon Section 15 of Act V of 1882. That section in paragraph 3 lays down that where a right of way has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for 20 years, the right to such easement shall be absolute. The whole question really in dispute between the parties now is whether this right of way has been peaceably and openly enjoyed by the appellants as an easement and as of right without interruption and for 20 years. The burden of proving that they are entitled to such an easement lies upon the appellants and after careful consideration, I find myself in accord with the lower Appellate Court that they have not proved their claim. There is no evidence on the side of the appellants, which has been believed, for any period prior to May 20th, 1893, and as regards the whole period I do not find myself in a position to say that this so-called easement has been enjoyed as of right and without interruption. In connection with this I would refer to what Mr. Justice Markby said in the case of Modhoosoodun Dey v. Bissonath Dey 15 B.L.R. 361 and to the case of Sheikh Khoda Bux v. Sheikh Tajuddin 8 C.W.N. 359.

3. The appeal fails and is dismissed with costs.


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