TRIPTA SHARMA Vs. STATE OF H P

JUDGEMENT

(1.) This appeal is directed against judgment, decree dated 26.6.2013 passed by learned District Judge, Mandi, in Civil Appeal No. 28 of 2012 affirming judgment, decree dated 26.3.2012 passed by learned Civil Judge, (Senior Division), Court No.1, Sundernagar, District Mandi, in Civil Suit No. 207 of 2005.

(2.) The suit has been filed by the appellant on the grounds of easement by way of prescription and easement of necessity. In the plaint, it has been pleaded that the appellant had purchased the land in the year 1981 vide sale deed dated 5.3.1981 and after the purchase of the land, the appellant had constructed a house after demolishing the old house and path in question is being used by the appellant since 1981 peacefully, continuously and without any obstruction. The suit was filed on 14.12.2005. The Explanation IV to Section 15 of the Indian Easements Act, 1882 (for short 'Act') provides when the property over which a right is claimed belongs to the Government, the section shall be read as if, for the words "twenty years" "thirty years". In other words for claiming easement by way of prescription over Government land, thirty years period is required. The appellant in the plaint has pleaded that after purchasing the land in the year 1981, she constructed the house and since then she is using the land over which she has claimed easement by way of prescription which is admittedly owned by the Government. In view of Explanation IV to Section 15 of the Act, the appellant is not entitled to claim easement by way of prescription over the government land.

(3.) The appellant has also claimed easement of necessity over the land in question. It has been submitted that the appellant has no alternative passage for approaching her house. PW-2 Lekh Ram in his cross-examination has admitted that path through khasra No. 420 touches the land and house of the plaintiff. This statement of the witness of the appellant demolishes the case of the appellant so far easement of necessity is concerned. The two Courts below have recorded a finding of fact after appreciation of evidence on easement of necessity as well as easement by way of prescription and negatived the case of the appellant.