Saji Koduvath, Advocate, Kottayam

Abstract

• It may not be legitimate to insist on to ‘specify the date of beginning’ in the claims on easement by prescription – in the same manner it is insisted in adverse possession claims.
• The concept of easement is appreciated in law as a benevolent right for the beneficial enjoyment of the dominant tenement; whereas ‘adverse possession’ curtails the rights of a true owner applying strict legal principles.

There should be specific pleadings

In Justiniano Antao v. Bernadette B. Pereira, (2005) 1 SCC 471, it was pointed out as follows:

• “In order to establish a right by way of prescription to the detriment of the other party, 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 specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years.”

Justiniano Antao v. Bernadette B. Pereira distinguished

Kerala High Court, in Soman Nair v. Manoj Kumar, 2014 (P. Bhavadasan, J.) distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

• “12. A reading of the decision reported in Justiniano Antao’s case (cited supra) would reveal that the dictum has to be read in the context of facts of the case. That was a case where the Apex Court found that till 1984, the claimant was using another way and only thereafter the claim over the way through servient tenement was made. A vague assertion had been made in the said case that the pathway has been used for a long time. It was under those circumstances, the Apex Court had occasion to hold as mentioned above.
• 13. In the case on hand, the definite pleading as could be culled out from the written statement and counter claim is that defendants as well as their predecessors-in-interest have been using the pathway in question for a long time in fact for more than 30 years and this is only means of access  to their property.”

Pappachan v. Alex, ILR 2023-3 Ker 523; 2023-5 KHC 10, distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

• “24. In Justiniano Antao (supra) there was no pleading by the plaintiff that she used the pathway in question for a period of 20 years. Holding that in the absence of such a pleading which is elementary and essential to claim a prescriptive easement right, the Apex Court held that the date from which the right of way was started to use should have been pleaded.
• The pleadings set forth by the appellants in this case certainly constitute sufficient pleadings to claim easement by prescription. It is true that they did not plead as to from which date they started using that pathway. They, however, pleaded that for the last more than 35 years they have been using that pathway. In the light of such a specific pleadings the law laid down in Justiniano Antao [(2005) 1 SCC 471] does not disentitle the appellants from claiming the relief.”

Importance of ‘Date of Beginning’ in Adverse Possession

Easement right is recognised in law for the ‘beneficial enjoyment’ of the dominant tenement; whereas ‘adverse possession’ curtails and defeats the rights of a true owner, applying strict legal principles. Therefore, the requirement to plead the “date of beginning” holds significant in the claim of adverse possession.

In Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779, it was specifically held, as regards claims adverse possession, as under:

• “Therefore, a person who claims adverse possession should show
  • (a) on what date he came into possession,
  • (b) what was the nature of his possession,
  • (c) whether the factum of possession was known to the other party,
  • (d) how long his possession has continued, and
  • (e) his possession was open and undisturbed.
• A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

Read Blogs:

• Easement Simplified
• Adverse Possession: An Evolving Concept
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Easement of Necessity and Prescriptive Easement are Mutually Destructive; But, Easement of Necessity and Implied Grant Can be Claimed Alternatively
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law
• Right of Private Way Beyond (Other Than) Easement