Gujarat High Court
Badrunnisha Mohmed Sikandar vs Keshilben Jethabhai Parmar (Deleted As ... on 7 November, 2025
NEUTRAL CITATION
C/FA/2084/2007 JUDGMENT DATED: 07/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2084 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
Yes -
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BADRUNNISHA MOHMED SIKANDAR
Versus
KESHILBEN JETHABHAI PARMAR (DELETED AS PER HON'BLE COURT'S
ORDER DTD 09.09.2025) & ORS.
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Appearance:
MR CHINMAY M GANDHI(3979) for the Appellant No. 1
DELETED for the Defendant No. 1
MR ANUJ K TRIVEDI(6251) for the Defendant No. 3
MR PANCHOLI WITH MS TEJAL A VASHI(2704) for the Defendant No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 07/11/2025
ORAL JUDGMENT
1. Present appeal under Section 96 r/w. Order XLI Rule 1 of the Civil Procedure Code is filed by the appellant - against the judgment and decree dated 02.03.2007 passed by the learned City Civil Judge, Court No.4, Ahmedabad [hereinafter be referred to as "the trial Court"] in Civil Suit No. 5205 of 1998 whereby the trial Court has dismissed the suit.
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2. That the property bearing survey No.31 admeasuring 125 square meters, Municipal Census No.18-A, 18-A-1, 18-A-2 of Raikhad Ward No.1, Behind Church, Opposite Jamalpur Mochiole Khanja Darwaja, Ahmedabad originally was purchased by one Fidahussain Abdulrazak Khureshi by registered sale deed dated 10.04.1974. The plaintiff purchased the property from Fidahussain - predecessor in title by registered sale deed No. 4243 dated 11.11.1997, description of which is as under:-
Towards East Survey No.188-11 and 188-19
Towards West Road and at some distance
Survey No. 32 and 30
Towards North Survey No. 30
Towards South Survey No. 34
2.1 It is the case of the appellant that from the said plot of land, he
is using for the purpose of egress and ingress to reach to her house and no other way existed as mentioned in the plaint. It is the case of the appellant that defendant No.1 was the original owner of the property in question. The original defendant No.2 purchased the property bearing survey No. 32, which is adjoining to the property bearing survey No.31 belonging to the original plaintiff. The defendants have put up the construction in such a way that almost the entire street was blocked and the entire construction was completed resulting in the shrinkage of the entire street to the extent and virtually prevented the plaintiff from having ingress and egress to the property to reach to her house and no other pathway except the way. That defendant No.2 purchased the property from defendant No.1 during the pendency of the suit and after purchase of the property by defendant No.2 has obstructed the right of pathway use Page 2 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined by the plaintiff and obstructed the air and ventilation from the western side which she was using from the inception. When defendant No.2 has put up the plan for construction of three storied building before the Corporation and after sanctioned, she has started construction over the property and hence, the plaintiff filed the suit.
2.2 The trial Court, after considering the averments made in the suit, framed the following issues:-
(1) Does the plaintiff prove that the suit disputed construction intended to be carried out by the defendant would violate the easement rights of the plaintiff?
(2) Is it proved that the disputed construction would more particularly, leave no room for air and light as also a passage between the property of the plaintiff and the defendant, if allowed to be carried out in its existing form? (3) Is it proved that the plaintiff himself has encroached on the open plot and has thereby, himself contributed to the State of Affairs?
(4) Is it proved that the suit is not maintainable in its present form?
(5) Is the plaintiff entitled to the reliefs sought for vide para - 6 of the plaintiff?
(5A) Is the plaintiff entitled to the reliefs sought for vide para 6-A of the plaint?
(5B) Is the plaintiff entitled to the reliefs sought for vide para - 6- A.A of the plaint?
(5C) Is the plaintiff entitled to the reliefs sought for vide para -
6.A.A.A. of the plaint?
(6) What Judgment and What decree?
2.3 The trial Court has answered the aforesaid issues accordingly.
2.4 The trial Court, after considering the submissions and oral as
well as documentary evidence, has dismissed the suit.
3. Being aggrieved and dissatisfied with the impugned judgment and decree, the appellant has filed the present appeal.
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4. On 23.04.2007, this Court, while admitting the appeal, has passed the following order:-
"1. Mr. Chinmay Gandhi, learned Advocate appearing on behalf of the appellant has submitted that the learned Judge who has decided the suit had no jurisdiction to deal with the matter once he is designated as a Special Judge, C.B.I. Court. Mr. Gandhi, learned Advocate appearing for the appellant is not in a position to satisfy this Court how the learned trial Court has no jurisdiction. The concerned learned Judge though was appointed as Special Judge of C.B.I. Court continued to be Judge, City Civil Court and it might be that he has been given additional power or even power of Special Judge, C.B.I. Thus, prima- facie said submission has no substance. Even otherwise, Mr. Gandhi, learned Advocate appearing for the appellant is not in a position to satisfy the Court how the concerned learned Judge has no jurisdiction. Mr. Gandhi, learned Advocate appearing for the appellant has relied upon some sentence of the first paragraph of the impugned judgment by which the learned Judge has observed that the parties have agreed to submit to the jurisdiction of that Court. The question of submitting the jurisdiction and the question of consent may arise only in a case where there is doubt with regard to jurisdiction. In the present case learned Advocate appearing on behalf of the appellant has failed to satisfy the Court as to how the concerned learned Judge has no jurisdiction. It is also further submitted by the learned Advocate appearing on behalf of the appellant submitted that there has no such consent given with regard to submitting jurisdiction. There is specific observation of the learned trial Court with regard to submitting jurisdiction and as held by the Hon'ble Supreme Court, the observation of the learned trial Court is required to be considered true and the only remedy available to the appellant would have been to submit an appropriate review application before the concerned learned Judge who has made the aforesaid observations and only he can consider the said submission. Mr. Gandhi, learned Advocate appearing on behalf of the appellant has further submitted that an application for breach of injunction by the defendants was pending since 1988 and the learned trial Court has not decided the same and delivered the judgment in the main suit. Considering the decision of the learned Single Judge in the case of Page 4 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined Shrimant Sangramsinh Pratapsinhrao Gaekwad v/s. Smt. Shantadevi Pratapsinh Gaekwad & Ors. reported in 1995 (2) GLH 850 it is submitted that before dismissing the suit and/or finally deciding and disposing the suit, the learned trial Court ought to have first decided the contempt application and thereafter the suit ought to have been decided by him. It is required to be noted that such plea and/or objection is never taken by the appellant. Not only that but in the appeal memo also, it is not the case on behalf of the appellant that though such objection was taken by the appellant - original plaintiff, still the learned trial Court has not dealt with and/or considered the same and has proceeded further with the aforesaid suit. When the appellant has not taken such objection at the relevant time and has allowed the trial Court to proceed further with the suit, how far the appellant is justified now taking such objection is required to be considered by this Court.
Office is directed to call for Record and Proceedings of Civil Suit No. 5205 of 1998 from the learned City Civil Court at Ahmedabad, Court No.4 decided on 02.03.2007 so as to reach this Court on or before 8th May, 2007. Stand over to 9th May, 2007."
5. It appears that during the pendency of the appeal, original defendant No.1 has expired and, therefore, the present appeal is remained against original defendant No.2 only.
6. Heard learned counsel for the appellant and learned counsel for the respondent No.2 at length. Perused the material placed on record.
SUBMISSIONS ON BEHALF OF THE APPELLANT :
7. It is contended that the appellant had purchased the suit property on 11.11.1997 and after purchase of the said property, he was/is using the disputed portion of survey No.32 and enjoying of easementary right without any obstruction or any hindrance and the said right is even mentioned in the sale deed at Exhibit 123 and 124, but after purchase of the property by respondent No.2 from Page 5 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined respondent No.1 somewhere in 2006, they are causing hindrance and obstruction to easementary right, even it is used prior to the date of purchase by the plaintiff from earlier owner since he has purchased the said property. A reliance is placed upon the decision of the Madras High Court in the case of Damodara Vs. Thirupurasundari reported in AIR 1972 Mad 386 wherein the Court had to deal with the right of owners of land adjoining the highway to go upon the highway from any point on their land. In the case of Damodara (supra), the Madras High Court has observed in para-7 as under:-
"The plaintiffs being owners of land abutting the highway have an undoubted right of access to the street from any part of their premises. In Mackenzie's Law of Highways, 21st Edn. at page 58 it is stated as follows:-
The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access. Just as the right of access is subject to the right of the public, an must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public and the owner of the 2nd whose access to the highway is obstructed may maintain an action for the injury whether the obstruction does or does not also constitute a public nuisance".
7.1 It is contended that because of the construction put up on survey No.32, the easementary right of the plaintiff is obstructed and, therefore, without considering all these facts and pleadings, the trial Court has committed serious error in passing the impugned judgment Page 6 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined and decree. It is contended that the plaintiff has purchased the subject partial of land somewhere in 1997 and from 1997, he is continuously using the said pathway and enjoying the easementary right over the property, which came to be first time objected by respondent No.2 after purchase of property in question from respondent No.1. It is also contended that the trial Court has not justified in passing the judgment and decree and completely ignored and misinterpreted the documents. It is contended that the trial Court has not properly appreciated the facts and law and the decisions of this Court and the Hon'ble Supreme Court in passing the judgment and decree.
7.2 It is contended that appellant - original plaintiff has filed Civil Suit No.5205 of 1998 for declaration and permanent injunction restraining the defendants, their agents and servants from carrying out any construction in their property in such a manner as would violate the easement right of the plaintiff.
7.3 It is contended that the property in question was originally owned by one Fidahussain Abdulrazak Khureshi, who purchased the same vide registered sale deed dated 10.04.1974 and, thereafter, the plaintiff purchased the property from Fidahussain Abdulrazak Khureshi predecessor in title.
7.4 It is contended that defendant No.2 has purchased the property bearing survey No.32, which is adjoining to the property belonging to the plaintiff. It is contended that thereafter the defendants started putting up the construction on their property in such a manner as would violate the easementary right of the plaintiff. It is contended that the construction put up by the defendants is of such a nature as Page 7 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined would completely and effectively block light and air to a large portion of the plaintiff's property and also block the plaintiff's ingress and egress to her property.
7.5 It is respectfully contended that as per sale deed dated 11.11.1997, the boundary of the survey No.31 owned by the plaintiff wherein the western side is shown to have been the road, which gives the access of ingress and egress to the plaintiff's property bearing survey No.31.
7.6 It is contended that on the western side, survey No.32 purchased by the respondents is situated where they have put up construction and there was a road in the street when the suit was filed and during the pendency of the suit, the same was removed and a structure has been put up by the defendants. While referring the report of the Court Commissioner, it is contended that the space shown between survey No.31 of the plaintiff and survey No.32 of the defendants, is being used as a road. It is contended that the defendants have put up the construction in such a way that almost the entire street was blocked by the defendants. It is contended that during the pendency of the present appeal, the defendants were permitted to put up the construction subject to the outcome of the present appeal and resultantly the entire construction was completed resulting in the shrinkage of the entire street to the extent that and had also virtually prevented the plaintiffs from having ingress and egress to their property.
7.7 It is contended that on assuming that the plaintiff has an alternate access to their property, which does not mean that the plaintiff can be deprived of her right to use a public street for ingress Page 8 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined and egress to her property. In this regard, a reliance is placed upon the decision of the Madras High Court in the case of K. Sudarsan and others Vs. The Commissioner, Corporation of Madras and others reported in AIR 1984 Madras 292.
7.8 It is contended that it is the contention on the part of the respondents that they have got their plans sanctioned by the Municipal Corporation and put up the construction in accordance with such approved plans and, therefore, there is no illegality in such construction. It is also contended that in the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.
7.9 It is contended that when there was a open road existing between the property of the plaintiff and the defendants since time immemorial, it is evident that the defendants have not only caused huge damage to the private right of the plaintiff in enjoying the light and air, but, in fact also has encroached upon the public street, which belongs to the Municipal Corporation. It is the contention on the part of the appellant that the right of the public to pass and repass extends over every inch of the street and the defendant cannot restrict the right and compel the plaintiff to confine herself to a part of the street of the choice of the defendants.
7.10 It support of the submissions, a reliance is placed upon the decision of the Hon'ble Madras High Court in the case of Damodara Vs. Thirupurasundari reported in AIR 1972 Mad 386 wherein the Hon'ble Madras High Court had to deal with the right of owners of land adjoining the highway to go upon the highway from any point on their Page 9 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined land. The relevant observation made in para - 7 reads as under:-
"The plaintiffs being owners of land abutting the highway have an undoubted right of access to the street from any part of their premises. In Mackenzie's Law of Highways, 21st Edn. at page 58 it is stated as follows:-
"The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access. Just as the right of access is subject to the right of the public, an must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public and the owner of the 2nd whose access to the highway is obstructed may maintain an action for the injury whether the obstruction does or does not also constitute a public nuisance".
7.11 It is contended that the defendants ought not to have been permitted to put up their construction which would obstruct such right of the plaintiff and it is nothing but public nuisance. It is contended that such ratio has also been followed by the Hon'ble Madras High Court, in the case of Arulmighu Muthukumarasamy Thirukoil Versus Land Acquisition Officer-cum- Revenue Divisional Officer : Tamil Nadu State Transport Corporation Ltd., reported in 2012 (0) JX(Mad) 99.
7.12 It is contended that that a Municipal Corporation has sanctioned plan does not automatically mean that plaintiff's right to enjoy light and air is unaffected by a four-foot distance construction and a Municipal Corporation's approval of a plan is an administrative Page 10 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined function based on by-laws and the same does not override or adjudicate a private property dispute, such as an easementary right. It is contended that a sanction is not a valid defense against a claim of actionable nuisance оr interference with a neighbour's easementary right. It is contended that Section 15 of the Indian Easements Act, 1882 prescribes the easement right of the plaintiff. It is contended that since 1966, the predecessors in title of the plaintiff were continuously and uninterruptedly enjoying the right and even the plaintiff has been enjoying the right since 11.11.1997, when she actually purchased the property and therefore, when there is continuous and uninterrupted enjoyment of light and air in the property, the same cannot be infringed by defendants. It is also contended that what constitutes is actionable nuisance.
7.13 This principle has been upheld in the case of Sree Swayam Prakash Ashramam Vs. G. Anandavally Amma reported in AIR 2010 SC 622. It is contended that the Indian Easements Act recognises customary casements, which are expressly discerned in Section 18 of the Act. This principle has been upheld in several decisions, including Lachhi Vs. Ghansara Singh reported in AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty reported in AIR 1981 Cal 325; and Yohannan v. Mathai, 1991 (1) Ker LJ 605, reported in 1991 KHC 571.
7.14 It is contended that the aforesaid position has been reaffirmed by the Hon'ble Supreme Court in the case of Sree Swayam Prakash Ashramam (supra), wherein the Hon'ble Supreme Court used the term implied-grant to refer to an easement of grant 'arising by implication'. The relevant observation of the said case reads as under:
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762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff.
Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the 'B' schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified."
7.15 It is contended that since 1966, the road which lies between the survey No.31 and survey No.32 was being used as a road to access survey No.31 and, therefore, it can be said that there is a grant of customary casement right in favour of the plaintiff, which ought to have been protected by the trial Court.
7.16 It is contended that in the present case, since the easement is granted to the plaintiff, the same cannot be said to have been extinguished even if at all it is believed that there is an alternate pathway as contended by the defendants. It is contended that from the sale deed dated 11.11.1997, it appears that the suit property bearing survey No.31 is described to have been bounded on its four sides and on the western side of the survey No.31, there is a road and therefore, it is nothing but an implied grant in favour of the plaintiff appellant herein.
7.17 It is also contended that the defendants ought not to have put up construction in such a manner that it shrunk the pathway and thereby caused substantial privation against the plaintiff, however, trial Court has not examined the valid proof and rejected the same by Page 12 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined holding that the plaintiff has failed to establish the existence of valuable easement right attached to the property of her ownership. It is contended that the present appeal deserves to be allowed and the impugned judgment and decree deserves to be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
8. It is contended that the appellant has failed to prove that she is using the subject partial of property since last more than 20 years without there being any hindrance or obstruction as she has purchased the property on 11.11.1997 and after purchase of the property, respondent No.2 sought permission from the Corporation for construction and obtaining sanctioned plan, however, the appellant has not raised any objection before the concerned authority at the time of sanctioning the plan for putting up the construction by respondent No.2, which shows that with an ulterior and mala fide intention, the suit was filed by the plaintiff and after considering the relevant materials, the trial Court has rightly dismissed the suit. It is contended that from the oral evidence of the witnesses of the plaintiff, it appears that the plaintiff has failed to establish that she is using easementary right as described in the plaint since more than 20 years without any interruption. It is further contended that at the time of admission of the appeal, this Court has noted that the appellant has failed to prove or make out a case then the appeal would not be entertained. It is contended that the appeal being meritless deserves to be dismissed and the impugned judgment and decree deserves to be confirmed.
8.1 It is contended that the appellant had preferred the present
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NEUTRAL CITATION
C/FA/2084/2007 JUDGMENT DATED: 07/11/2025
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appeal in the year 2007 against the judgment and decree passed by the trial Court whereby the suit was dismissed which was originally instituted by the appellant in the year 1998 and since 2007, no interim relief/stay has been granted by this Court. It is contended that the appellant has continued to survive without the easementary right as claimed in the suit and therefore, the appellant does not fall within the definition of "easement" as per section 4 of the Act, since the very essence of an easement is its continuous, uninterrupted and legally enforceable enjoyment, which is absent in the appellant's case.
8.2 It is contended that the appellant has been enjoying and using her property since 1998 without the benefit of any claimed easementary right and it is evident that the appellant had been in beneficial and enjoyment of her property for all these years which demonstrates that the claim of easementary rights is neither genuine nor essential for the enjoyment of the property.
8.3 It is also contended that the predecessor in title from whom the appellant purchased the property was allegedly enjoying easementary right for last 20 years and there is no whisper of any such easementary right having been transferred by the predecessor in title in favour of plaintiff vide sale deed dated 11.11.1997. It is contended that in absence of any recital in the sale deed, the appellant cannot claim to have acquired any easementary right through the predecessor in title and therefore, the appellant's claim under Section 15 of the Indian Easements Act is not tenable in the eyes of law.
8.4 It is contended that the contention raised by the appellant that the trial Judge had no jurisdiction to decide the matter as he was transferred from the City Civil Court to act as Special Judge of C.B.I. Page 14 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined Court does not acceptable. It is further contended that as per the order dated 23.04.2007 passed by this Court, while hearing the appeal by the Coordinate Bench of this Court concluded that the specific submission regarding lack of jurisdiction has no substance. It was further recorded that the advocate appearing on behalf of the appellant was unable to satisfy the Court and has failed to demonstrate as to how the concerned trial Court had no jurisdiction.
8.5 It is contended that the construction carried out by the respondent is strictly in accordance with law and development plans were duly sanctioned by the corporation, which can be seen from the reply filed by the Corporation in which the Corporation is relying upon GDCR prevailing at the relevant time. It is also contended that under the said GDCR, the Corporation was permitted to sanction construction plan without leaving any margin land and the Corporation while sanctioning the plans would have considered the valuable easemenatry right of adjoining property holders. It is further contended that the appellant in her cross examination has admitted that the appellant had never raised any written objections before the competent authority at the time when the construction plans of the respondent were approved.
8.6 It is contended that the trial Court has rightly accepted the claim of the respondent by observing that the plaintiff herself has creted the problem. That the plaintiff has encroached upon the open plot and the construction of the Otta was carried out by the plaintiff subsequent to the purchase of the suit property. Owing to the said construction, the plaintiff is being deprived of ingress and egress to the suit property from that direction. Therefore, the trial Court has rightly concluded that the alleged deprivation is a consequence of the Page 15 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined plaintiff's own actions.
8.7 It is contended that the claim of the appellant for easementary right cannot be granted as when the respondent purchased the property, there was no construction in existence. It is only after the respondent commenced construction pursuant to development plans being sanctioned by the corporation, the appellant instituted the suit, with the sole intent of obstructing the respondent from carrying out the construction.
8.8 Relying upon the decision of the Hon'ble Supreme Court in the case of Manisha Mahendra Gala & Ors. Vs. Shalini Bhagwan Avatramani & Others reported in 2024 6 SCC 130, it is contended that for acquiring an easementary right by prescription under Section 15 of the Indian Easement Act the claimant must specifically plead and prove peaceful, open, and uninterrupted enjoyment of the said right for a continuous of not less than 20 years, and that vague expressions such as "many years" are insufficient to satisfy the statutory requirement. It is contended that in the present case, although the plaintiff claims to have enjoyed the alleged easementary right for 27 years, no credible evidence has been produced to establish continuous and uninterrupted enjoyment for the said period. It is also contended that the trial Court has rightly rejected the claim of the plaintiff noting the absence of material evidence demonstrating uninterrupted enjoyment of the easement rights for twenty years or more. It is contended that the claim of the plaintiff falls short of the evidentiary standard laid down by the Hon'ble Supreme Court in the aforesaid decision and the same is liable to be rejected. It is contended that the appellant has failed to prove that she is using easementary right of the property as described in the plaint Page 16 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined uninterruptedly and within the knowledge of nearby more than last 20 years as prescribed under Section 15 of the Easement Act. It is contended that the appeal being meritless deserves to be dismissed.
9. In the case of Manisha Mahendra Gala (supra), the Hon'ble Supreme Cour has held and observed in para - 19, 22 and 32 as under:-
"19. 'Easement' is defined under Section 4 of the Indian Easements Act, 1882 to mean 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. It may be pertinent to mention here that the land which is to be enjoyed by the beneficiary is called 'Dominant Heritage' and the land on which the easement is claimed is called 'Servient Heritage'. The easementary right, therefore, is essentially a right claimed by the owner of a land upon another land owned by someone else so that he may enjoy his property in the most beneficial manner.
22. Section 15 of the Act categorically provides that for acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage without any interruption for over 20 years. In the plaint, neither the original plaintiff Joki Woler Ruzer nor the Gala's have specifically claimed that they or their predecessor-ininterest were enjoying easementary right of use of the said rasta for over 20 years. They simply alleged that they have been using and managing the same since "last many years". The use of the term "last many years" is not sufficient to mean that they have been enjoying the same for the last 20 years. Last many years would indicate use of the said rasta for more than a year prior to the suit or for some years but certainly would not mean a period of 20 or more years. Therefore, their pleadings fall short of meeting out the legal requirement of acquiring easementary right through prescription.
32. The easementary right by necessity could be acquired only in accordance with Section 13 of the Act which provides that such easementary right would arise if it is Page 17 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined necessary for enjoying the Dominant Heritage. In the instant case, findings have been returned not only by the appellate courts but even by the trial court that there is an alternative way to access the Dominant Heritage, which may be a little far away or longer which demolishes the easement of necessity. There is no justification to go into those findings of fact returned by the courts below."
10. On perusal of the material available on record, the issue involved in the present case for determination by this Court are that whether the trial Court has committed an error while dismissing the suit and/or failed to grant relief as sought for by the plaintiff in the plaint; whether the trial Court has committed an error or illegality in appreciating the evidence led by the appellant while coming to the conclusion that the plaintiff was not entitled for the relief as sought for in the plaint; whether the trial Court has committed an error in interpreting the evidence in passing the impugned judgment and decree; whether the trial Court has justified in dismissing the suit of the plaintiff.
11. For the foregoing reasons, it is worthwhile to refer the oral evidence of the witnesses.
11.1 From the evidence of P.W.1 Mohammad Sikandar examined at Exhibit 112, it appears that in his cross-examination, he has deposed that he came to reside in his property in the year 1997, specifically in the month of November. Prior to this, he was residing in Jamalpur Sindhhiwad. he had known the previous owner of the house for some time before he purchased the house. He has deposed that it is true that he did not have any information as to when they purchased this house or when they started using the house. In response to the question of whether they have any family members, he stated that he Page 18 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined knew the original owner - Fida Husain. He did not know his family members besides him, nor do he has details of how many members there are in his family. As Fida Husain's brother, Akbarali, is his friend, we became acquainted. He knew that Fida Husain used to run his shop. When he became acquainted with Fida Husain, he was residing in the disputed house and was also residing in Indore. He did not know with certainity as to when he starting residing in Indore. However, he knew that he was residing at both places, Ahmedabad and Indore. He knew that Fida Husain was running his business in both places, Indore and Ahmedabad.
In Indore, he was running a spare parts business. Now, he stated that he was running scrap business of old spare parts. He had a shop in Ahmedabad at the Kabadi Market. He cannot provide any more details regarding the business. His family was also residing with him at Ahmedabad and Indore. It is not true that, Fida Husain's children were studying in Indore. He has personal knowledge that they were studying in Ahmedabad. He did not know in which school they were studying. He did not know how many children were studying in Ahmedabad.
It is not true that Fida Husain and his family went to reside permanently in Indore since 1989. It is also not true that at the same time, his children were taken out of school and put to study in Indore. Fida Husain is to be cross-examined in this matter.
It is not true that he did not know in which year the construction of the disputed property, which he purchased from Fida Husain, was carried out. He stated that Fida Husain carried out the construction of the said property in 1979. It is not true that no person was residing Page 19 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined there in the 1979. A person named Fatima Bibi was residing there. Fatima Bibi is not alive today, and if necessary, her relatives shall be examined. It is not true that Fida Husain brought his family members to reside in Ahmedabad only after 1979. The witness stated that Fida Husain and his family were residing in Ahmedabad even before that. The witness stated that Fida Husain and his family members were residing at Suda Khan ni Chali in Jamalpur.
If the defendant sold his property today, he was not interested in purchasing that property. He never had any interest in buying this house previously. It is not true that since the defendant purchased this property, he was pressurizing him to sell this property. It is not true that this map is only for the opinion regarding the road line. The mention of a place with north to south length measurement in the City Survey Map is correct. But, he stated that the same was under
his ownership. The witness further stated that a platform was situated at the said place. It is not true that the both the main roads can be accessed through this place.
It is not true that, he was falsely stating that we have no other path to access the main road except through the property of the Defendant. It is true that he has never raised any written objection regarding the construction plan of the defendant before any authority. It is not true that he was falsely stating about having raised an oral objection. It is not true that the defendant has not done anything obstructing or hindering the said procedure for accessing the main road through his property. It is not true that he has dictated false facts written in Para No.3-A of the plaint. It is not true that he was falsely stating that he or the previous owner were making movement through the property of the defendant twenty years prior to the date Page 20 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined of the suit.
It is not true that he has filed a false suit to create pressure with the intention of usurping the disputed property from the defendant at a lower price.
11.2 From the evidence of P.W.3 Mohammad Khalid, who examined at Exhibit 145, it appears that this witness has deposed in his cross-
examination that it is not true that Faruk Bhai and Fida Husain share a good relationship with him even today. He has not been in contact with them for the last five to seven years. He recalled that currently Faruk and Fida Husain reside in Indore. As far as he can recall, they started residing permanently in Indore since 1997, and even before this, they were commuting between Indore and Ahmedabad. I have known Mohammad Faruk since he came to reside in the house he currently live in. It is true that there is no other plot between the plots where his house and the defendant's plot are situated. The witness stated that there was a road between these two.
As far as he can recall, Faruk and Fida Husain had approximately four sisters. He did not recall where these four sisters were studying. He did not recall until which year they were studying in Ahmedabad. As far as he can recall, entire family of Faruk went together to reside in Indore.
11.3 On perusal of the evidence of P.W.4 Inayatali Fidahussain Kureshi, it appears that this witness has deposed in his cross- examination that his birth took place in the Khanpur area, Ahmedabad, in 1966. He has evidence showing that he is Inayat Ali son of Fida Husain. The witness has his driving license with him, which Page 21 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined he shown. He has three brothers and four sisters. Among these, one of his sisters is older than him in age. The rest are younger than him. He has studied up to standard seven. Currently, he used a crane to run the "Break On Service" business in Indore. He has been running this business for approximately the last fifteen years, and he has been doing this kind of work since the 1986. The main operator of this business is his father, and we, the family members, run the business together. All three of my brothers are with him in the business. In this manner, my brothers have been with him in the business for approximately the last ten years. he was not doing any other business before he joined the business with his father. Now he stated that, after leaving school, during the period of 1986, we had a shop in Ahmedabad Kabadi Bazar (Scrap Market) which he used to look after. For the last many years, we are using the said shop as a godown. The witness further clarified that in the said shop, he used to keep goods related to the crane business and whenever required, he would take the goods from there.
He has deposed that his brother Farooq is younger than him. He has studied up to class 9. He studied up to class 8 at Raipur Mission School and pursued his education for one more year at Indore. His other brother, Mohammad Rafiq, has studied up to class 12. He studied up to class 5 at I. P. Mission School in Ahmedabad and continued the rest of his education at Indore. My youngest brother is Zakir Hussain. He has studied up to class 2 and pursued his education in Ahmedabad.
He has deposed that his sisters studied at Urdu Primary School situated near Gaekwad Haveli. However, none of my sisters have pursued much education. he cannot state with certainty how much Page 22 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined they have studied. He reiterated that all four of his sisters studied at Urdu Primary School located near Gaekwad Haveli at Raikhad. He was unable to state up to which class my sisters pursued their education in that manner.
He knew the defendant No.2 - Jaitunbibi. he knew her because she resided in the street situated behind the house where he used to live. He has known her for about 20 years. He was not aware that Jaitunbibi was a teacher in a school. He did not know that Jaitunbibi used to come home to give tuition to his sisters, because he used to leave for our shop at 8 o'clock in the morning and would return home only after 7 o'clock at night. The witness stated this voluntarily.
He started residing in the suit property in the year 1974. At that time, he was about eight years old. Prior to that, we used to reside in Khan Saheb Ni Gali near the Jamalpur Pagathiya.
This witness has deposed that it is true that in the third photograph, two steps are visible after the platform of Survey No. 31. In the same photograph, the ramp mentioned earlier is also visible.
11.4 On perusal of the evidence of Jaitunbibi Mahmad Hanif Maniyar examined at Exhibit 172, it appears that in her cross-examination, this witness has deposed that it is true that she was serving as a teacher in a school managed by the Ahmedabad Municipal Corporation. The witness voluntarily stated that, at present she was retired. She retired on 30/10/2004. She has served in this post for about 33 years. It is true that during her service as a teacher, she used to have occasions to visit the office of the Ahmedabad Municipal Corporation. It cannot be said that she had good relations with the officers there. The Page 23 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined witness voluntarily stated that if any officer called her for work, she was required to go there. It is not true that because she had good relations with the employees of the Corporation, she wrongfully obtained from the Corporation the building use permission and plan of her house in such a manner as to cause harm to the house of the plaintiff, particularly to its ventilation, light and right of way. It is not true that what she has stated in her examination-in-chief that, in the gap area situated on the northern side between her property and that of the plaintiff, she has made the construction leaving an additional space of three feet, is false. It is not true that his statement that, she has left four feet of space on the east-west side of her property, is false. It is not true that she falsely stated that the plaintiff has created an encroachment. It is also not true that the question of removing such encroachment does not arise at all. It is not true that her construction is illegal. It is not true that whatever construction she has made so far has been carried out by obstructing the plaintiff's rights of air, light and way. It is not true that the plans of her house approved by the Municipal Corporation were sanctioned without inspecting the site. The witness voluntarily stated that the officers of the Corporation had visited the site for inspection. She cannot say whether the owners of the adjoining properties were given any notice or opportunity of hearing by the Municipal Corporation regarding the construction of her house. She has no knowledge about it. She cannot say whether the objection application filed by the plaintiff before the Ahmedabad Municipal Corporation concerning his house was decided by the Corporation officers without hearing the plaintiff. It is not true that the plaintiff or his previous owners have been using, for the past twenty years, the roads in front of their house for movement, or have been exercising easementary rights regarding air and light. The Page 24 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined witness voluntarily stated that the previous owner of the disputed property, Fida Hussain, did not hold ownership of the said property for twenty years. She did not know whether the owner prior to Fida Hussain also possessed similar rights. In reply to the statement that the previous owners had been exercising and enjoying such rights and that no one had ever interfered or obstructed them, she stated that she has no information regarding that. She cannot state whether, even during the two years prior to the filing of the present suit, the previous owner and the plaintiff had exercised their easementary rights of air, light and way without any obstruction or hindrance. It is not true that the plaintiff has any right to use, exercise or enjoy such easementary rights. It is not true that she falsely stated that Fida Hussain was residing in Rajasthan before and after purchasing the property. It is not true that she falsely stated that when Fida Hussain had the plan of the first floor of his house sanctioned, there existed a courtyard in his house. It is not true that no such courtyard existed on the ground floor. It is not true that because of the construction made by him, the plaintiff's passage towards the west in his house has been blocked. It is not true that due to the construction of his house, the air and light from the west side of the plaintiff's house have been obstructed and it is also not true that because of his construction, the plaintiff's house has become very dark. It is not true that as a result thereof, the plaintiff feels suffocation and that the health of the plaintiff and his family members has been adversely affected. It is not true that he falsely stated that Fida Hussain, along with his children and wife, came to reside in the said house after 15/02/1979. It is not true that, he falsely stated in his examination-in-chief, the details regarding the admission of Fida Hussain's children in school on 10/07/1979 and subsequently thereafter transferred to Indore on Page 25 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined 21/07/1989. It is not true that there is no passage for movement in the plaintiff's house except towards the west direction. The witness voluntarily stated that there is a road towards the north direction. It is not true that there are properties belonging to others adjoining the plaintiff's house on the north-east and south sides. The witness stated that there is no house situated on the east side of the plaintiff's house, whereas, there are properties situated on the north and south sides and his own house is situated on the west side of the plaintiff's house. It is true that on the east side of the plaintiff's house, there is a society. It is true that the land situated beyond the plaintiff's property, i.e., on the east side, belongs to the society. The witness stated that the plaintiff has right to use the place for passage. It is true that in the plaintiff's property there is a continuous wall on the eastern side and there is no door in it. She did not know that in the space belonging to the society situated on the eastern side of the plaintiff's house, the plaintiff has no right or entitlement. It is true that the main entrance to the plaintiff's house is situated on the western side. It is true that on the western side of the plaintiff's house, apart from the entrance door, there is one window and three large grills. It is true that on the first floor of the plaintiff's house, on the western side, there is a lobby. It is true that there are three doors and one window in that lobby on the first floor. It is true that from the doors and windows situated on the western side of his own property, the plaintiff was getting air and light. The witness stated that the plaintiff was also getting air and light from the doors and windows situated on the southern side of his property. It is true that the main entrance situated on the western side of the plaintiff's house was being used as such even by the owner prior to Fida Hussain. It is true that Fida Hussain's previous owner, Fatimabibi, was also enjoying air and light through the said main Page 26 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined entrance and the windows situated in the same direction. The witness voluntarily clarified that the present plaintiff has changed the situation the existence when Fatimabibi used the said main entrance; that is to say, after the main door of Fatimabibi's time, there used to be an open platform, but the present plaintiff has fixed a grill there, built a wall around the platform, placed a grill over it and constructed an additional platform ahead of it. It is not true that the platform presently existing was in existence since the time of Fida Hussain and Fatimabibi. It is not true that the plaintiff has not made any alteration in the condition of the platform. It is not true that Fida Hussain had constructed the first floor upon the existing ground floor as per the same situation. The witness states that Fida Hussain had demolished his house and reconstructed it anew. The witness admits that such construction was carried out after getting the plan legally sanctioned.
It is not true that Fida Hussain had got the plan sanctioned only for the first-floor construction and not for the ground floor. It is not true that since the time of Fatimabibi there existed two steps after the platform situated on the western side. It is not true that the plaintiff used to come out of his western door, step onto the platform, descend the steps and pass through Survey No. 32 for movement to the road. The witness states that the plaintiff used to pass through the northern side of his house. It is not true that since the time of Fatimabibi, the said steps of 10 feet in length and 2 feet in width have been in existence. The witness states that the said steps were constructed by the plaintiff.
It is true that when he purchased the land of Survey No. 32, it was an open plot and no construction existed upon it. It is not true that the land of Survey No. 32 had remained open and without Page 27 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined construction for 50 years prior to his purchase. The witness stated that to his knowledge, the plot was open, but he cannot say for how many years it had remained so. It is true that since the time Fatimabibi owned the disputed property, the plot of Survey No. 32 was an open plot. It is true that in this case, a Court Commissioner was appointed to examine the site conditions of the properties of the plaintiff and the defendant and it is also true that the Court Commissioner has submitted his report in this case vide Exhibit 156. The report of the Court Commissioner in this case is correct. The water tap and wash area (chowkdi) mentioned in the said report are situated within the property belonging to the plaintiff. She did not know whether the portion lying towards the southern side in Survey No. 34, as mentioned in the same report, belongs to the owner of the property of Survey No. 34. She did not know whether the plaintiff has any right or entitlement of passage through Survey No. 34 property. The witness voluntarily stated that the plaintiff used the passage for movement. It is true that at the place where the platform portion of the plaintiff's property is visible on the southern side, there is a wall of two feet in height. The witness voluntarily stated that such a wall was constructed by the plaintiff himself. He agreed that if the plaintiff intended to pass through the western side, it would be difficult for him to do so because of the wash area and water tap, as the passage measures three feet and five inches in width. The witness voluntarily stated that out of the said passage of three feet and five inches, five inches belonged to him. The witness further stated that the plaintiff can presently move conveniently through the passage. It is not true that she falsely stated that the five-inch portion belongs to him. It is true that it is difficult for vehicles to pass through the said passage of three feet and five inches. It is not true that in the space measuring Page 28 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined four feet and one inch, it is difficult for the plaintiff to move his vehicle. It is true that except for a scooter and bicycle, no other vehicle can pass through such a space. It is true that on the southern side of the plaintiff's property, the plaintiff had constructed a ramp for taking vehicles, particularly for parking a scooter on the platform. It is not true that such a ramp had existed since the time of Fatimabibi.
It is true that there is no space between the platform and the building. It is not true that in his construction we have built walls up to three storied. It is true that in the construction made by her, there are three RCC pillars. His wall has been built up to the height of the ground floor and half of the first floor. She intended to construct walls up to three storied. It is not true that the walls constructed by him so far have obstructed the air and light in the plaintiff's house. It is also not true that by making further construction, the air and light in the plaintiff's house would be completely blocked. It is also not true that because of his construction, the passage of the plaintiff has been obstructed. It is not true that she has not acted in accordance with the Court's order dated 13/11/1998 and that she has not left a space of four feet between the two properties. She has left a space of four feet and one inch between the two houses. It is not true that she was falsely stating that she has left a space of four feet and one inch between the two properties. It is true that after completing the construction of the ground and first floors, she has carried out the slab work of the second floor. But it is not true that he has not done any centering work for the third floor. To her knowledge, she did not know whether the Court had passed any order on 12/01/1999 regarding leaving a space of 10 feet between the two properties. She stated that he has no knowledge of any such order. It is not true that Page 29 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined she has disobeyed any order dated 12/01/1999. It is not true that she has not complied with the order directing maintenance of status quo. It is true that on 23/01/1999, an injunction order was served upon me through the Court Bailiff. It is not true that he has disobeyed or breached any such order. She did not know whether the plaintiff has filed an application for breach of injunction in this regard.
12. On perusal of the evidence, prima facie it appears that the plaintiff had purchased the suit property somewhere in 1997 and the suit was instituted in 1998 immediately after one year on the ground that she had purchased the property from one Fidahussain Abdulrazak Khureshi by registered sale deed seeking easementary right and, therefore, from the date of purchase i.e. 11.11.1997, she was/is using the easementary right without any hindrance and interruption and, therefore, under such circumstances, she has acquired easementary right by prescription. Looking to the pleadings, it appears that Fidahussain Abdulrazak Khureshi has purchased the property somewhere in 1973 and from whom, the plaintiff has purchased the property in 1997 and thereafter the suit was filed in 1998. With regard to the enjoyment of easementary right of the property for more than 20 years by the plaintiff, the same is rightly disbelieved by the trial Court.
13. It is profitable to refer to the provision of Section 15 of the Easement Act, which reads thus:-
15. Acquisition by prescription.--Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or Page 30 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined by things affixed thereto as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I.--Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II.--Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
Explanation III.--Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV.--In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to [Government] this section shall be read as if, for the words "twenty years", the words " [thirty years]" were substituted.
14. It is required to be proved that since the appellant is using the easementary right for more than 20 years without there being any interruption and hindrance and consciously in the knowledge of the Page 31 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined others. From bare reading of the evidence of the plaintiff, it appears that the plaintiff is unable to prove such fact and, therefore, the trial Court, while deciding issue Nos. 1 and 2, has given reasons.
CONCLUSION:-
15. On perusal of the oral as well as documentary evidence and on examination of the provision of Section 4 of the Easement Act, it appears that the plaintiff has purchased the property in 1997 and the suit was instituted in 1998 meaning thereby that after one year and, therefore, the trial Court has rightly dismissed the suit observing that the plaintiff was using the property and continued an easementary right for a period of twenty years that too without any interruption, which itself is contrary to the contentions and submissions made on behalf of the plaintiff. In view of the said fact, I am of the opinion that the plaintiff has failed to establish primary requirement. On perusal of the evidence available on record and on scrutiny of sale deed dated 11.11.1997 at Exhibit 124 of property which was purchased from owner namely Fidahussain Abdulrazak Khureshi, who had purchased the property from erstwhile owner on 10.04.1074 by registered sale deed at Exhibit 125, it appears that nothing was mentioned with regard to the easementary right as sought for in the plaint and when the plaintiff prima facie failed to establish the primary facts before the trial Court with regard to easementary right, the trial Court has rightly disbelieved and discarded the evidence led by the plaintiff. Prima facie it appears that when respondent No.2 had purchased the plot No.32 and has put up the construction as per the sanctioned plan, the plaintiff has filed the suit alleging that because of the construction made by respondent No.2, her easementary right was interrupted, for which the plaintiff has never raised any objection before the Page 32 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined Competent Authority at the time of sanctioning plan either orally or in written and after the plan was sanctioned, respondent No.2 had started construction over survey No.32. It emerges that the plaintiff has failed to establish her right with regard to the ingress or egress or even light and air. On perusal of the plan at Exhibit 130, it appears that in the plan, the situation of both the plots of plaintiff and defendant No.2 was mentioned. It is evident from the documentary evidence that none of the right as sought by the plaintiff said to be in any manner prejudiced by the construction put up by the defendant No.2 and, therefore, while deciding the issues No.1, 2 and 4, the trial Court has rightly dealt with such contention raised by the plaintiff. In my view, there is no any illegality and irregularity in the impugned judgment and decree and, therefore, the appeal deserves to be dismissed.
16. That requirement of Section 15 of the Easement Act that the person claiming an easement by prescription over the property of another should have been established that he or her predecessor had been peaceably and openly enjoying the right of the property and without interruption for twenty years. In the present case, the plaintiff failed to establish primary requirement to come across and establish that the use of pathway and air and ventilation from the western side. Therefore, under such circumstances, the trial Court has rightly not considered the contention raised by the plaintiff. The panchnama at Exhibit 156 carried out by the Court Commissioner wherein it is stated that "on the first floor of the plaintiff's house, there is an extended section on the right side of the main entrance. This area, designed like a small lobby, projects about 2 feet 8 inches beyond the main wall of the house. The lobby is roughly 10 feet 7 inches long and 6 feet 11 Page 33 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined inches high, and it contains a toilet. Along the northern wall of the house runs a staircase, which provides access to premises bearing Survey No. 22-F. On the northern side of the disputed site, there is a two-story building, while a window is located on the southern wall of the plaintiff's house. At present, the disputed area remains open to the sky, with no construction except for four dug-out foundation pits". On perusal of the report of the Court Commissioner, it appears that there is nothing to be established and no proof that the appellant was using the pathway. On the contrary, by constructing Otta, the plaintiff herself has blocked the pathway and, therefore, the observation made by the trial Court is just and proper and not committed any error of facts and law in passing the impugned judgment and decree.
17. Even to establish the fact that the plaintiff having any right to excess from survey No.32, there was no sufficient proof or evidence produced by the plaintiff. For that purpose, consciousness that she was exercising that right on the property, treated it as somebody else's property is necessary ingredients to establish that the right has easement and all the proof or evidence produced before the Court is inconsistent pleadings and evidence and therefore the claim of right of excess was rightly dismissed by the trial Court. On perusal of the decision cited by learned counsel for the respondent viz-a-viz provision of Section 15, I am of the opinion that the appellant has failed to establish her case before the trial Court that she is having uninterrupted and enjoying easementary right since more than twenty years. Considering the overall facts of the case and the decisions relied upon by the respective parties and perusing the impugned judgment and decree, I am of the opinion that the trial Court has not committed any error of facts and law in passing the impugned Page 34 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025 NEUTRAL CITATION C/FA/2084/2007 JUDGMENT DATED: 07/11/2025 undefined judgment and decree and hence, appeal being meritless deserves to be dismissed.
18. In the result, the appeal is dismissed. The judgment and decree dated 02.03.2007 passed by the learned City Civil Judge, Court No.4, Ahmedabad in Civil Suit No. 5205 of 1998 is hereby confirmed. Decree be drawn accordingly. Registry is directed to send back the record and proceedings to the concerned trial Court forthwith. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 35 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:16:34 IST 2025