Easements Act, 1882 – ss. 4, 13, 15 – “Easementary right” – Easementary right by prescription or necessity – When not proved:

Held: ‘Easement’ u/s.4 is a right which the owner or occupier of a land possesses for the beneficial enjoyment of his land on the other land which is not owned by him, to do and continue to do something or to prevent and continue to prevent something being done on the said land – In the present case, the Appellants are admittedly the owners of Survey No. 48 Hissa No.15 whereas the respondents are the owners of Survey No.57 Hissa No. 13A/1 on which the rasta in dispute allegedly exists – Appellants claimed that the use of the aforesaid rasta was for the beneficial enjoyment of their land as they had no other way of access to their land and that they had been enjoying the said easementary right for the “last many years” – s.15 provides that for acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage (the land on which the easement is claimed) without any interruption for over 20 years – However, neither the original plaintiff nor the Appellants specifically claimed that they or their predecessor-in-interest were enjoying easementary right of use of the said rasta for over 20 years – The term “last many years” is not sufficient to mean that they have been enjoying the same for the last 20 years – Therefore, their pleadings fall short of meeting the legal requirement of acquiring easementary right through prescription – No evidence to prove that the Appellants were in use of the said land for the last over 20 years uninterruptedly – They entered the scene only on purchasing the said land on 17.09.1994 after the suit was filed and as such, they could not and have not deposed anything about the pre-existing right or the easementary right attached with the Dominant Heritage (the land which is to be enjoyed by the beneficiary) – The said right has to be proved as existing prior to the institution of the suit – Neither the Appellants nor their predecessor-in-interest came in the witness box – They only relied upon the deposition of their Power of Attorney holder/the Manager who was not having any authority to act as their Power of Attorney at the time his statement was recorded – He was granted Power of Attorney subsequently – Further, in the absence of any evidence or material to show that original plaintiff had actually acquired any easementary right over the rasta in dispute before the institution of the suit, he could not have transferred any such right in favour of the Appellants – Furthermore, there is an alternative way to access the Dominant Heritage, may be a little far away or longer which demolishes the easement of necessity u/s.13 – Appellants not entitled to any easementary right by necessity either upon the disputed rasta – Thus, they have not acquired easementary right over the disputed rasta in any manner much less by prescription, necessity or under an agreement– Appellate courts and High Court right in dismissing the Suit of the plaintiffs/appellants and in decreeing the Suit of the defendants/respondents. [Paras 19, 21, 22, 27, 29, 31-33, 40]

Power of Attorney holder – Appellants relied upon the evidence of their Power of Attorney holder/Manager of the property (PW1) to prove their easementary right of way over the disputed rasta – Propriety:

Held: Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene – PW-1, the Power of Attorney holder deposed that he was giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Appellants – He was not having any authority to act as the Power of Attorney of the Appellants at the time his statement was recorded – He was granted Power of Attorney subsequently as accepted by the parties – Therefore, his evidence was completely meaningless to establish that Appellants have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted. [Para 29]

Pleadings – Consideration of:

Held: Pleadings should be liberally construed and need not contain the exact language used in the statutory provision but it does not mean that the pleadings even if fails to plead the essential legal requirement for establishing a right, the same be so construed so as to impliedly include what actually has not been pleaded more particularly when it happens to be an essential ingredient for establishing a right – In the present case, the pleadings of the plaintiffs/appellants fall short of meeting the legal requirement of acquiring easementary right through prescription and cannot be treated to be of sufficient compliance of the statutory requirement – A fact which is not specifically pleaded cannot be proved by evidence as evidence cannot travel beyond the pleadings. [Para 23]

Easementary right – Claimed under the Sale Deed – Propriety – Appellants claimed that they acquired easementary right under the Sale Deed dated 17.09.1994 (photocopy produced) and that it would not stand extinguished even if the necessity has ceased to exist:

Held: Property owned and possessed by the Appellants was originally the property of one ‘RB’ which was acquired by the government – It was purchased by ‘WF’ in public auction from the government – Thereafter, it devolved upon his legal heir ‘JWR’ who sold it to the predecessor-in-interest of the Appellants vide Sale Deed dated 17.09.1994 – There is no evidence on record to establish that the government ever transferred any easementary right over the rasta in question to ‘WF’ or that his legal heir ‘JWR’ ever acquired or perfected any easementary right over it – Therefore, the right which was not possessed by them could not have been transferred to the Appellants under the Sale Deed dated 17.09.1994 – Further, the said Sale Deed dated 17.09.1994 in original was not produced in evidence – It was only the photocopy of the same which was brought on record – Photocopy of a document is inadmissible in evidence – Moreover, the said sale deed was executed by predecessor-in-interest i.e. ‘JWR’ in favour of predecessor-in-interest of the present appellants – The said sale deed would not bind the third parties who are not signatories or parties to the said sale deed – No evidence adduced to prove that ‘JWR’, predecessor-in-interest of the Appellants, had perfected easementary rights over the disputed rasta and thus was legally entitled to transfer the same. [Paras 35, 36]

Code of Civil Procedure, 1908 – s.107 – Powers of the appellate court in disturbing the findings recorded by the court of first instance:

Held: First appellate court is empowered to exercise powers and to perform nearly the same duties as of the courts of original jurisdiction – Therefore, the first appellate court has the power to return findings of fact and law both and in so returning the finding, it can impliedly overturn the findings of the court of first instance if it is against the evidence on record or is otherwise based upon incorrect interpretation of any document or misconstruction of any evidence adduced before the court of first instance. [Para 39]