- (1.) The appellant herein had filed a suit for injunction against the respondent for restraining the respondent from using a pathway over the appellant's land. The respondent, in turn, had filed a suit for declaration and injunction against the appellant claiming the easement right to use the said pathway.
(2.) The trial court on the basis of the evidence before it came to the conclusion that the easement of necessity which had been pleaded by the respondent herein had come to an end prior to the filing of the suits inasmuch as the pathway had been constructed which abutted on the respondent's land. The trial court also found that the respondent was using the pathway over the appellant's land only since 1963 and the 20 years' period had not yet expired. This suit of the appellant was decreed and that of the respondent was dismissed.
(3.) In appeal, the lower appellate court affirmed the decision of the trial court. It held that easement of necessity had come to an end and the respondent herein had "failed to prove the case of the user of the way for the statutory period of 20 years so as to enable him to claim the easementary right". In second appeal, the High Court upheld the concurrent finding of the courts below to the effect that the easement of necessity had extinguished with a new pathway having come into existence. It, however, reversed the decision of the courts below by holding that the respondent herein had enjoyed and exercised quasi-easement falling under Section 13 (f) of the indian Easements Act. In coming to this conclusion the High Court observed as follows: "The requirements of Section 15 are that the person claiming an easement by prescription over the property of another should have established that he or his predecessor has been peaceably and openly enjoying the right of way claiming a title thereto and without interruption for twenty years. This was precisely the contention of the appellant. Both the courts having accepted that contention, albeit to conclude that the appellant or his predecessor enjoyed an easement of necessity since before 1953 until years prior to the date of the suit and the only reason for finding that he lost that right being the misinterpretation of Section 41, the appellant, in my judgment, was in law and on the determined facts entitled to a finding that he also obtained an easement by prescription over the pathway in terms of Section 15. ";