DURYODHAN SAMAL Vs. PADMA CHARAN BISWAL

JUDGEMENT

(1.) The sole point for decision in this appeal is, whether the respondent No. 1 has acquired a prescriptive right of easement of way over the disputed plots, morefully described in the schedules to the plaint as Ka, Kha, Ga and Gha, the same being the front courtyard (Danda) lying to the East of the respective residential houses of the plaintiff-appellants. The sole defendant claims that he has been using the disputed land as a passage from his house to the village road on the south. It is the concurrent finding of both the Courts below that the plaintiffs have title to the disputed lands in question. But the defendant having acquired easementary right of using the disputed lands as path, the plaintiffs' suit has been dismissed by the Courts below and therefore, the plaintiffs are in appeal before this Court.

(2.) Mr. P. Kar, learned counsel for the appellants strenuously urged that the Courts below committed gross error in not considering the absence of materials with regard to user of the land as of right. It was further submitted that the defendant having not pleaded and proved such user as of right the Courts below should not have given a finding to that effect in his favour. Mr. Kar has relied on certain decisions which will be discussed in due course.Mr. S. Mishra (1), learned counsel for the respondents, on the other hand, supported the judgments of the Courts below.The rival contentions need examination.

(3.) Though it is concurrently found by both the Courts below that the defendant has been using the disputed lands as a path, yet it has to be examined whether such user was as of right as has been held by the Courts below. The findings of the Courts below that the defendants have been using the land openly without interruption for more than twenty years should not be disturbed having been based on duly considered evidence on record and the admission of the plaintiffs in their evidence. But as rightly submitted by Mr. Kar, the essential element of acquiring the prescriptive right of easement is that the user must be as of right. The learned lower appellate Court has not discussed whether the defendants have been using the disputed lands as of right though it gave a finding of user only basing on the evidence that the same has been used openly without interruption and for more than the statutory period. It would be apposite at this stage to examine the significance of the evidence of the defendant who has been examined as D.W. 1.