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05-02-2012, 01:50 AM
Pleadings and proof in easements
Pleadings: It has been held in a case. AIR 1924 Cal 369, that is enough to plead immemorial user and then a lost ancient grant would be inferred. The case of AIR 1933 Cal 215, is an authority for the proposition that pleadings, in this respect as perhaps in other, would be liberally construed in the country and that where user for forty or fifty years is alleged in the plaint, and twenty years user is also separately mentioned, the defendant could not be given a fresh opportunity of meeting the case of immemorial user. The need for liberal construction is greater in a backward state as held in the saurashtra case. AIR 1951 Sau 60. It is difficult to understand the Lahore case of A I R 1923 Lah. 605, wherein it is said that the plea that the defendants had been using a particular kul from time immemorial, does not amount to a plea of easement. Perhaps it is meant here that the defendant did not plead an easement at all. In any case they are obiter dicta. The proper issue to frame when easement claimed under immemorial user was given in the early Calcutta case, I L R 6 Cal. 812, and also in later cases of which the Bombay case, 34 Bom LR. 92, is one. Their lordship put down the issue in the form “whether there is evidence of enjoyment on the part of the plaintiff or those through whom he claims of such a character and duration as to justify the presumption of a grant or other legal origin of the plaintiff’s right independent of the provision of act, XV of 1877, section 26”. In provinces where the easement act is in force, it would be necessary to substitute the words “Act V of 1882, section 15”, in place of “Act XV of 1877, section 26”. The case of, I L R 6 Cal. 812, shows that immemorial user could be pleaded as an alternative to the statutory claim. The cases of 34 Bom L R 92; A I R Bom 430, are further authorities for the same. Inference of a legal origin in the shape of a lost grant is a question of fact according to the Calcutta case. AIR 1929 Cal 542. If the question of immemorial user is regarded as no more than a question of fact, an important consequence would be that the finding on the issue of immemorial user would not be disturbed in second appeal. However it seems more reasonable to regard the question of immemorial user as a mixed question of fact and law, because as soon as an opinion is sought to be framed whether a certain group of facts would constitute immemorial user or which is the same thing would give rise to an inference of a lost grant, there is forthwith involved an application of law and a final legal consequence that the plaintiff’s claim of easement must be decreed. Pleadings in a case dealing with easements have to be very precise. As an easement is not one of the ordinary right of ownership, it is necessary that either party claiming or relying upon an easement should plead the nature of his title thereto so as clearly to show the origin of the right whether it arises by statutory prescription, or express or implied grant, or the old common law method or lost grant. A I R 1953. 205. If the defendants sought to rely upon a presumption of lost grant, it was incumbent incumbent upon them to plead clearly and specifically the origin of the right claimed to have been in a lost grant. Where the defendants pleaded customary right it was not open to the courts to make out a case of easement by lost grant. AIR 1958 Pat. 571. Where no averments are made in the written statement that the defendants have been enjoying peaceably and openly without interruption the right to store water in the lands belonging to the plaintiffs and the right to drain out water through the lands of the plaintiffs, it was held that the defendants had failed to establish that they had acquired any right of easement. AIR 1970 Bom 246. The person who claims an easement by prescription must plead all the ingredients necessary for acquiring the rights as set out in section 15.
Onus and proof: In the case . AIR 1959 Bom 63, it has been held that having regard to the habits of the people of this country, it would not be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England. In a country like Pakistan where the lands are usually unenclosed, before a right of easement could be declared to be established over them, the court must require strict proof that the plaintiff has satisfied the requirements of section 15 of the easement act. Before a right of way can be acquired as an easement it is necessary to prove that (1) there has been actual enjoyment of the right, (2) that the enjoyment has been open (3) that the enjoyment has been peaceable.(4) that the enjoyment has been as of right, (5) that it has been enjoyment as an easement, (6) that it has been enjoyed without interruption, and that (7) it has been enjoyed for 20 years. Unless all these ingredients are proved, no right of easement can accrue to the owner of a dominant heritage. AIR 1951 M Bh 89. It is firmly establish principal that the right to take water along an artificial watercourse running over the land of another is not a natural right of property but could be acquired either under a contract or by prescription which presumes a grant. Where the plaintiff did not found his right on a contract, the only method by which he could establish his right which he asserted was by proof of acquisition by prescription. The employment of the phrase “Mamul rights” in the plaint does not alter the position to any extent since the expression means no more than that for long period of time the plaintiff was receiving water into his land along the artificial watercourse. But in a suit to enforce the right to receive such water, the plaintiff can succeed only if it is proved that the right flows from a contract or from a right acquired by prescription. AIR 1969 Mys 67. Where a party has pleaded ownership and has failed he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter it is necessary to establish that it was exercised on someone else’s property and not as an incident of ownership of that property. AIR 1971 SC 1878. To prove that right of easement claimed by the plaintiff and to make him the dominant owner it is necessary to prove that the plaintiff was in peaceful open and un-interrupted enjoyment of that right for a period of 20 years lasting within two years of the suit. AIR 1957 Punj 238. In order to rebut the legal presumption, from long user, that the enjoyment was as of right the defendant must allege that the user was a permissive one. If he does not set up such a case he cannot be allowed to take up such plea subsequently. AIR 1963 Ori. 155.
Customary right is fundamentally distinct from prescriptive right: A plaintiff setting up in the plaint customary right cannot be allowed to succeed on the basis of prescriptive right. AIR 1972 Pat. 479. A right of way, except by way of easement of necessity, cannot be claimed or enforced in any manner other than as prescriptive right, be it against the owner of the servient tenement or against a trespasser. AIR 1960 Mys. 317. A customary right is a right of a kind which is different from easement acquired by prescription of a lost grant is not available merely upon establishment of user for a period of twenty years or more. The most important thing to be considered is whether the situation itself raises a presumption of grant. To raise the presumption there must have been a grant which is presumed to have been lost in due course of time and such course of time is to be determined in the light of particular facts of each case. PLD 1967 Dacca 135. Where the well in disputed had a superstructure thereon from times immemorial and the superstructure belonged to defendant and his predecessors-in-interest and no objection was even raised by the plaintiff or his predecessors the defendant was held to have acquired a right of support on the wall by prescription. It was further held that whether the defendant utilized such right of support for purposes of a wall or for a lintel made no difference as long as the lintel did not damages the wall underneath and more support was not sought to be extracted than what could be given by the wall. PLD 1975 Pesh. 479.
Limitation: Section 15 being a special provision of a special act prevails over the general provision of the limitation act, 1908. PLD 1977 Dacca 135.