Prescriptive easement of way fails without specific pleadings identifying its ingress, egress, direction, and width.

The plaintiff sought a declaration that he had a right to use an ancestral path passing through the defendants’ land and a permanent prohibitory injunction restraining the defendants from blocking it by construction. He claimed uninterrupted use of the path for more than 20 years and asserted that a prescriptive easement had accrued in his favour. Defendant No. 2 had exchanged part of the land with Defendant No. 1, who thereafter raised a two-storeyed structure over it.

The Trial Court held that the plaintiff had used the path for 20–25 years, relied upon the tatima showing the path, and decreed the suit. On appeal, the Additional District Judge reversed the decree, finding that the path was not reflected in the revenue record, an alternative passage existed, and the Trial Court had not identified the portion requiring demolition. The plaintiff preferred the present second appeal, which was admitted on two substantial questions of law.

Whether the plaintiff pleaded and proved his claim for a right of way by prescription so as to justify the decree passed by the Trial Court?

Whether the First Appellate Court could reverse the entire decree when Defendant No. 2 had not preferred an appeal?

Whether the First Appellate Court’s failure to decide the application for additional evidence invalidated its judgment?

A claim of easementary right by prescription must be supported by specific pleadings and proof identifying the route, including its points of ingress and egress, direction and width, and establishing the requisite period and character of use. The Court relied on Savitri Devi v. Gauri Dutt, 2000(1) S.L.J. 404, which holds that a right of way cannot be claimed where the passage is not properly described.

Under Order XLI Rules 4 and 33 CPC, an appellate court may reverse or vary a decree in favour of all parties having a common interest, even where only one party appeals; this principle was affirmed in Ratan Lal Shah v. Lalmandas Chhadammalal, (1969) 2 SCC 70, and Chandramohan Ramchandra Patil v. Bapu Koyappa Patil, (2003) 3 SCC 552.

An objection based on non-disposal of an application under Order XLI Rule 27 CPC cannot ordinarily be raised in second appeal where no substantial question of law concerning that omission was framed and the party raising the objection was not prejudiced by it.

The plaintiff’s pleadings did not clearly identify the ingress and egress of the alleged path or establish why access through the defendants’ land was necessary.

His own witnesses admitted that the PWD/motorable Devidhar-Badyara road was adjacent to the relevant khasra numbers and that a common public passage existed near the land of PW-3, undermining the assertion that the path passed through the defendants’ land.

The tatima could not reliably establish the path because its maker was deceased and the witness produced to prove it lacked knowledge of the spot position.

Further, the plaintiff admitted that a recent settlement had depicted passages in the revenue record, yet the alleged path was absent from that record, making his claim doubtful.

Consequently, the First Appellate Court correctly found that the essential factual foundation for a prescriptive right of way had not been proved.

The non-appeal by Defendant No. 2 did not restrict the appellate court’s power under Order XLI Rules 4 and 33 CPC to reverse a decree founded on grounds common to the defendants.

The challenge based on non-disposal of the additional-evidence application also failed because no corresponding ground or substantial question of law had been raised, and the appellant was not the party who had filed that application.

The judgment and decree of the First Appellate Court were upheld, the second appeal was dismissed, and all pending applications were disposed of.