How to prove right of way by easement of prescription ?

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How to prove right of way by easement of prescription ?

A careful perusal of the plaint would show that the plaintiffs
have failed to plead that since what date to which date plaintiffs are
using the land and also failed to plead that they are using the land
for last 30 years against the State/defendant. They have only
pleaded that they are using suit land for last 12 years. The
Supreme Court in the matter of Justiniano Antao and others v.
 Bernadette B. Pereira (Smt.)  (2005) 1 SCC 471S.A. No. 243 of 2016
 , has clearly held that in order to
establish a right by way of prescription, there should be specific
pleading and categorical evidence in general and specifically held
in para 9 of the judgement as under:
“9. We have gone through the three judgments i.e. trial
court, first appellate court and that of the High Court. We
have gone through the evidence adduced. From this, it is

more than clear that there is no specific averment in the
plaint or in the statement of the witnesses showing that this
access from the land of the defendants was used as of right
for the last 20 years. The evidence very categorically shows
that the plaintiff has an access on the south east side and
this was being used by her for a long time. It was pointed
out that only in the year 1984 the plaintiff has started using
the access through the property of the defendants. It is also
admitted that the defendants were during that time on board
of ship and as soon as they came and saw the use of their
land by the plaintiff, they put obstructions to it. Therefore, it
is clear that it is not the case that the plaintiff has been using
the access as of right through the property of the defendants
for more than 20 years. Since the plaintiff has an access
through the southern side of her property we see no reason
why the property of other persons be used as an access to
her house. If the plaintiff had no access to her house except
through that of the property of the defendants then perhaps
we would have considered appreciating as easement of
necessity. But in order to establish a right by way of
prescription one has to show that the incumbent has been
using the land as of right peacefully and openly and without
any interruption for the last 20 years. There should be
categorical pleadings that since what date to which date one
is using the access for the last 20 years. In order to
establish the right of prescription to the detriment of the
other party, one has to aver specific pleadings and
categorical evidence. In the present case, after going
through the pleadings as well as the statement of the
witnesses it is more than clear that the plaintiff has failed to
establish that she has been using the access peacefully,
openly as of right for the last 20 years. More so we find that
material placed on record and especially the photographs
which have been exhibited and marked as Ext. D.W.3/A in
the court that there are two pillars showing the existence of
a gate in southern side but it has been closed down by
rubble stones. The defendants have put up a strong case
that the plaintiff has an opening in the southern side and it is
amply established that there exist two pillars showing the
existence of a gate which has been covered by rubble
stones in the southern side. It was also pleaded that the
plaintiff was using the same and it is only after 1984 she got
the gate constructed through the land of the defendants.
Therefore, on the basis of the evidence and statement of the
witnesses, we are satisfied that the first appellate court has
correctly approached the matter and the view taken by the
High Court as well as the trial court does not appear to be
based on correct appreciation of facts. 
5. In the above referred to decision, their Lordships have held
that there should be categorical pleadings that since what date to
which date one is using the access for the last 20 years. In order
to establish an easement by way of prescription to the detriment of
the other party, one has to aver specific pleadings and lead
categorical evidence.
6. Both the Courts below concurrently held that the plaintiffs
failed to plead and prove the necessary ingredients to establish the
right of easement as required by Section 15 of the Indian
Easement Act and keeping in view the ratio of law laid down by the
Supreme Court in the aforesaid case, the concurrent finding of fact
recorded by both the Courts below is based on evidence available
on record and it is neither perverse nor contrary to the record. No
substantial question of law is involved in this second appeal.
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 243 of 2016
Rajendra Prasad Shukla 
V
 State Of Chhattisgarh 
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 02/09/2016
Citation:AIR 2017(NOC) 70 Chhattisgarh