IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.444 of 1999 ----------- 1. Arun Kumar Mishra, son of late Dina Nath Mishra 2. Kamala Devi 3. Ramavati Devi Both daughters of late Dina Nath Mishra 4. Din Deyal Mishra 5. Ishwar Deyal Mishra Both sons of Ramanand Mishra 6. Ajit Mishra Ajit Kumar Mishra 7. Ranjit Mishra @ Ranjit Kr. Mishra Both sons of Din Deyal Mishra All residents of village Raghopur, P.S. Rivilganj, District Saran. …Defendants-appellants-appellants. Versus 1(b)(i). Most. Shanti Devi,w/o late Parshottam Mishra. 1(b)(ii). Pankaj Mishra 1(b(iii) .Pawan Mishra . 1(b)(iv).Praveen Mishra All sons of late Parshottam Mishra 1(b)(v) Manish Mishra, d/o late Parshottam Mishra. 1(c). Tuntun Mishra 1(d). Vyas Mishra 1(e). Parmatma Mishra 1(e). Pramod Mishra (Nos. 1(b) to 1(e) all sons of late Brahamadutta Mishra 2. Laljhari Devi, wife of late Chandra Shekhar Mishra 3. Devanti Devi All residents of village Raghopur, P.S. and P.O. Rivilganj, District Saran. 4(i). Kumari Rubi 4(ii) Kumari Guddi, Both minor daughters of Birendra Pandey, Residents of village Jaichhapra, P.S. and District Siwan. 5. Shail Kumari 6. Prem Kumari 7. Jagdish Narain Mishra, son of late Rama Mishra All residents of village Raghopur, P.S. and P.O. Rivilganj, District Saran. ….. Plaintiffs-Respondents-Respondents. …….. For the Appellants : Mr. Uma Shankar Singh No.2, Advocate. For respondent no.1(b) : Mr. Narmadeshwar Jha, Advocate. ------ 2 16/ 23.02.2010 Herd learned counsel for the appellants and learned counsel for some of the respondents. 2. This second appeal has been filed on behalf of defendants-appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 43 of 1981 (56/1982), which was filed by plaintiffs-respondents-respondents for declaration of their easementary right of way over an area measuring 15 links east to west and 65 links north to south of plot no. 578 of village Raghopur in the district of Saran. The said suit was decreed on contest by the learned Additional Munsif-II, Saran vide his judgment and decree dated 23.12.1982. 4. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No. 15 of 1983, which was dismissed on contest by the learned Additional District Judge VII, Saran vide his judgment and decree dated 07.07.1999. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for defendants-appellants vehemently challenges the judgments and decree of the learned courts below stating that the claim of the plaintiffs was absolutely vague as no period of use was given and it was merely stated that easementary right was exercised since time of his ancestors. It is also claimed that easementary right has to be proved as per the provision of section 15 of the Indian Easements Act, 1882 3 (hereinafter referred to as `the Act’ for the sake of brevity) , but in the instant case neither any such issue has been framed nor any finding was arrived at by the learned courts below. 6. From the arguments of the parties as well as the materials on record, including the impugned judgments and decree of the learned courts below, it is quite apparent that admittedly the plaintiffs are in occupation of their ancestral house and hence the suit land was being used for access to their house since the time of their ancestors. Furthermore, the provision of section 15 of the Act also provides that the acquisition by prescription can be upheld where access to any building has been peaceably enjoyed therewith, as an easement, without interruption for 20 years. It also transpires that the plaintiffs had been able to prove by evidence that the suit land was being used for access since the time of their ancestors, which was much more than 20 years. 7. Moreover, specific issue no. (iv) had been framed by the trial court for deciding the question as to whether the plaintiffs got easementary right over the suit land as way and passage. Since word `easementary right’ has been used in the said issue, all the ingredients as provided under the aforesaid section of the Act will naturally come to effect and there was no occasion for the courts below to frame a separate issue with respect to question of use of the suit land as an access for 20 years as it was clearly indicated in the aforesaid issue. 8. Furthermore, the learned courts below have 4 considered the evidence of the parties in detail and only thereafter had come to the conclusion that the house was constructed over the plaintiffs’ land, whereas, the suit land was used for access much more than 20 years prior to the filing of the suit. The learned courts below had also come to the conclusion that the plaintiffs had no other passage for access to their house. In the said circumstances, all the ingredients of easement having been found in the case, the learned courts below were quite justified in allowing the claim of the plaintiffs. 9. Furthermore, the aforesaid findings of the learned courts below are concurrent findings of facts based on pleadings and materials, which were duly considered by the learned courts below at the time of deciding the suit and the appeal. 10. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )