Law: Easements Act, 1882

Section: 12,15

Law: Specific Relief Act, 1877

Section: 42,54

Law: Civil Procedure Code (V of 1908)

Section: 9,10

(a) Easements Act (V of 1882)---.--- ---.----Ss. 12 & 15---.---Specific Relief Act (I of 1877), Ss.42 & 54---.---Civil Procedure Code (V of 1908), O.I, R.10 & OXXVI, Rr.9 & 10---.---Easement---.---Right of way---.---Burden of proof---.---Claim of easement of necessity---.---Scope---.---Necessary parties to claim of easement---.---Report of Local Commission---.---Evidentiary value---.---Availability of alternate access way---.---Effect---.---Plaintiff filed suit for declaration and perpetual injunction claiming to be owner on suit property which was shamilat deh and seeking that defendant be restrained from raising construction on path which was being used by him for more than fifty years---.---Trial Court decreed the suit but appellate court dismissed the same---.---Validity---.---Both parties had admittedly constructed their houses on suit property/shamilat deh---.---As per statement of witness, there were more than one access paths to the house of plaintiff---.---Plaintiff alleged that there was no access to his house other than disputed path, but no cogent and independent evidence was produced to that effect---.---Plaintiff did not produce any person of locality to support his claim and based the same on his own statement---.---Plaintiff in plaint gave disputed path on northern side of his house, but bailiff after inspection of spot stated the same to be on eastern side---.---Plaintiff had no prerogative to claim easement of passage on ground of convenience---.---Easement was always claimed on property owned by others which was not the case of plaintiffs---.---Easement of necessity was not to be allowed at wish and whims of plaintiffs if another alternate access was available though inconvenient---.---No claim could be entertained for easement of passage on choice of plaintiff---.---Mere use of path through passing property would not bestow any right upon claimant and owner of property at any stage had right to restrain claimant from using the same---.---All owners of suit property, who had constructed their houses on shamilat deh, were not arrayed as party---.---Huge property of shamilat was in possession of all owners and there were…

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