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Maniyam Krishnan and anr. Vs. Maniyam Nanukuttan

Court : Kerala

Reported in : AIR1986Ker75

..... court after considering the evidence adduced in the case held that the plaintiff failed to prove the acquisition of right of way by prescription and also that the plaintiff was not able to establish his claim of right of way on the basis of an easement of ..... consent or acquiescence on the part of the servient owner lies at the root of prescription, and a grant cannot be presumed from long use without his having had knowledge or at least the ..... without formulating, even mentally, a legal claim, and in my opinion a right to an easement by prescription cannot be defeated merely by showing that during the whole or part of the period of prescription the plaintiff was not consciously claiming an easement.'16. ..... period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he' was consciously asserting a right to an easement. ..... statutory recognition of the principle of english common law relating to acquisition of easement by prescription with some modifications. ..... , the learned counsel submitted that since there is no clear proof regarding the user as of right, the plaintiffs claim for easement by prescription has to be rejected.14. ..... plaintiff was not using any portion of their property as a pathway and that the plaintiff has not acquired any right of way as an easement over any portion of defendants' property by prescription. .....

Ganesh Kesha Hanath Vs. Kantaben Lakhman Hanath

Court : Gujarat

Reported in : AIR2007Guj165

..... more than 20 years and once the petitioner/original plaintiff proved prima facie case and the (act as averred in the plaint and in the injunction application that suit way used by way of prescription easementary right for more than 20 years, uninterruptedly and without obstruction for at least a period of more than 20 years and though the petitioner-original plaintiff has alleged, averred and proved that ..... has further submitted that once the plaintiff/petitioner proved prima facie case and the fact as averred in the plaint and the injunction application that the suit way was used by way of prescriptive easementary right for more than 20 years, uninterruptedly and without obstruction for at least a period of more than 20 years and though the plaintiff-petitioner had alleged, averred and proved that ..... suit, since the petitioner-plaintiff has not sought for declaration that he has acquired prescriptive right of easement with regard to the inflow of air and light through the ..... wherein it is held that the question when what might be called an easement by statutory prescription is claimed by the plaintiff, is whether under section 15 of the easements act, the prescriptive right by enjoyment for 20 years has been acquired by the plaintiff. ..... gordhan das reported in , wherein it is held that to prove the right of easement acquired by prescription it should be shown that the person claiming the right was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years .....

Vaniyankandi Thazha Kuniparambil Parkum Ponmani Chintagath Koyyomma an ...

Court : Chennai

Reported in : 50Ind.Cas.291; (1919)37MLJ28

..... and in ray opinion without the intention of the legislature being in this connection expressed in so many words or capable of being inferred from any plain indications in the act we should not be justified in recognising a prescriptive right to light and air by way of easement for a limited period, such as during the occupation of the servient heritage by a lessee, when it is clear that no such right has ever been recognised by ..... that view, as i understand it, is that the act has not created a class of easements which could not be gained by prescription at common law, or in other words, has not created an easement for a limited time only, or available only against particular owners or occupiers ..... is one of greater difficulty, the contention for the appellants being that no easement right can be acquired by prescription against a tenant and this appears to be the principle recognized by the common law of england vide wheaton ..... there are no express words in the act providing for the acquisition of an easement for a limited time by prescription by the owner or occupier of the dominant heritage though the act in various places deals with the imposition of an easement by the owner or ..... two questions arise for consideration in this appeal; (1) whether an easement right can be acquired by prescription against a tenant for the term of his tenancy, and (2) whether by virtue of section 16 of the easements act the owner of the land is prevented from disputing the easement claimed, because he .....

The Dalhi and London Bank, Ld. Vs. Hem Lall Dutt

Court : Kolkata

Reported in : (1887)ILR14Cal839

..... act, unlike the english act, places light and air upon the same footing, and if the english cases show that the effect of these words (which are similar to the words in the english prescription act) is to enlarge the right of the dominant tenement as far as light is concerned, it follows that they also extend the right of air.25. ..... the right to light is in bagram's case at page 46 put by sir barnes peacock as follows: 'but the only amount of light for a dwelling-house which in my opinion can be claimed by prescription, or by length of enjoyment without an actual grant, is such an amount as is reasonably necessary for the convenient and comfortable habitation of the house.'22. ..... such a right may be acquired by express grant, but it cannot be acquired merely by prescription arising from user, whether the presumption is a presumption of prescription or not,' and this alleged right to the south wind is also repudiated by mr. ..... on the sixth issue i find that the plaintiffs have acquired by prescription the access of the amount of air mentioned in my answer to the third and fourth issues.52. ..... on the fifth issue i find that the plaintiffs have acquired by prescription the access of the amount of light mentioned in my answer to the first and second issues.51. .....

Macario Antonio Francisco De Cunha and Anr. Vs. Alex Fred D'Souza and ...

Court : Mumbai

Reported in : 1993(1)BomCR465

..... kakodkar now says that in fact there is no cause of action in the suit for there is no foundation laid for any acquisition of the easement by prescription by the plaintiffs for it is nowhere pleaded that the plaintiffs were making use of the servient property as easement and as of right, so as to crystallize an easement in favour of the original plaintiffs.17. ..... this connection, in the first place, i would like to remind myself that section 15 of the easement act makes it amply clear that to acquire an easement by prescription in respect of right of way it must not only be peaceably and openly enjoyed but as an easement and as of right without interruption for 20 years. ..... having surveyed these provisions of the indian easements act what therefore stands out is that when a party claims acquisition of an easement by prescription, qua a right of way, he must have not only enjoyed it peaceably and openly but as an easement as and of right without interruption for 20 ..... of easement under the civil code (portuguese) is on the same principles, but however to invoke the acquisition by prescription the period stipulated is 30 years, unlike 20 years under the easement act.8. ..... takes care of a situation when one person transfers or bequeaths immoveable property to another and secondly where there has been partition of a joint property between several persons.acquisition of easement by prescription is spoken to in section 15 thereof.what is relevant for our purpose is what is sought i.e. .....

Vani Pati Tripathi Vs. Director General, Medical Education and Trainin ...

Court : Allahabad

Reported in : AIR2003All164; (2003)1UPLBEC427

..... ' it is, therefore, clear that technicality of non-compliance of section 28 (5) in issuing the letter dated february 20, 1990 was nailed past and approved the prescription of 50 per cent cut-off minimum marks as eligibility for admission into p.g. ..... learned counsel contended that since for dental course there is no requirement of prescription of 50% marks in the qualifying examination hence the state cannot insist for aforesaid requirements. ..... the third submission of learned counsel for appellant is that the prescription of 50% marks as eligibility condition for appearing in entrance examination is ultra vires.13. ..... further looking to everyday increasing number of candidates seeking admission, prescription of reasonable cut of marks cannot be said to be arbitrary. ..... the high court upheld prescription of 50% marks but find-ing that the vacant seats were available for admission directed for giving admission to the writ petitioner. ..... the respondent filed writ petition in the high court challenging the prescription of 50% of minimum marks as eligibility criteria. ..... accordingly we uphold the prescription of 50 per cent cut-off marks for general candidates and 40 per cent for scs and sts together with 1.65 per cent weightage of total marks i.e. ..... 'in the aforesaid judgment the division bench upheld the prescription of 50% of aggregate marks in qualifying examination on the basis of regulation framed by medical council of india, even though in the advertisement there was no such prescription. .....

Mehmood Alam Tariq and ors. Vs. State of Rajasthan and ors.

Court : Supreme Court of India

Reported in : AIR1988SC1451; JT1988(2)SC417; 1988LabIC1665; 1988(1)SCALE1150; (1988)3SCC241; [1988]Supp1SCR379; 1988(2)LC217(SC); 1988(2)WLN21

..... branches of the civil services under the state, certain minimum qualifying marks in the viva-voce test were prescribed.the division bench, by its judgment under appeal, declared as arbitrary and unconstitutional this prescription in the rules which required that the candidates for selection to administrative service, the police service, and the forest service of the state should secure a minimum of 33% of the marks prescribed for ..... learned counsel further submitted that reliance by the high court on the report of the kothari commission on the basis of which the prescription of minimum qualifying marks for the viva-voce was done away with in the competitive examinations for the indian administrative service, police service and other central-services was ..... both, is a well recognised aspect of recruitment procedures and that a prescription of a maximum of 11.9% of the total marks for the viva-voce examination, with a condition that the candidate must get at least, 33% out of these marks for selection to the three key-services would not violate any constitutional principle or limitation; but on the contrary would, indeed, be a salutary and desirable prescription, particularly having regard to the nature of the services to which ..... , judgments today 1987 (4) sc 257 where this court considered the permissibility of the prescription of minimum qualifying or cut-off marks in viva-voce examination, while dealing with clause (ii) of the proviso to rule 19 (as it stood prior to the 1972 .....

J. Chandrasekaran and Others Vs. V.D. Kesavan

Court : Chennai

..... it is not necessary to prove an actual continuous user of the way by day and night for the full prescriptive period without any cessation provided the elements essential to an easement by prescription are present, and under such circumstances as exclude the presumption of a voluntary abandonment on the part of the party claiming the ..... put up a gate at the entrance of the lane on the southern side and they had also put up another gate at the 'eb' portion found set out in the suit schedule plan and as such, they acquired prescriptive title over the suit lane and at no point of time, the plaintiff had been using the said lane. ..... in such a case, simply by uttering out by word of mouth that the defendants acquired prescriptive title over the suit lane is quite untenable and antithetical to the well established principles of law. ..... plain running of the eye over the precedent as well as section 15 of the easements act would unambiguously and unequivocally point up and show up the fact that the plea of prescription as sought to be pressed into service by the defendants cannot be countenanced and up held. ..... . substantial question of law (v) is decided to the effect thatthe plea of acquiescence or prescription as pleaded by the defendants relating to their attempt to retain their three electric meters on the wall of the plaintiff, ..... . if really the defendants are held to be having such right of prescription over the said portion of the wall, then the plaintiff cannot be precluded from demolishing .....

Raychand Vanmalidas Vs. Maneklal Mansukhbhai

Court : Mumbai

Reported in : AIR1946Bom266; (1946)48BOMLR25

..... of a hostile claim of certain rights over another man's property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights ..... the question which arises for our consideration may, i think, be put in these terms:--' whether a person can be said to establish a right of easement, when it is shown that during part of the prescriptive period this person has exercised the right he now claims as easement, not as a right over the property of another, but as a right over property which at the time he considered to belong to himself ' ..... 's' observations went too far and it was held that it was not the law that a person cannot acquire an easement unless during the whole prescriptive period he acts with the conscious knowledge that it is a case of dominant tenement and servient tenement and that he is exercising a right over ..... i think therefore that there can be no doubt that in this country if the owner of the dominant tenement has during part of the period of prescription exercised the rights which he now claims as an easement, under the assertion or belief that he was the owner of the servient tenement, then his exercise of those rights is not exercise ' as easement', and .....

P.P. Chaami Vs. State of Karnataka Represented by Its Principal Secret ...

Court : Karnataka

Reported in : ILR2008KAR2832; 2009(2)KarLJ335; 2008(4)KCCR2703; 2008(4)AIRKarR354; AIR2008NOC2558

..... 1 shall unerringly fix the number of councilors strictly in accordance with the prescription contained in section 11(i)(a) of the said act, whenever the next elections to the madikeri c.m.c. ..... even when the petitioner has taken part in the elections he cannot be estopped from challenging the notification which is issued in violation of the statutory prescription contained in section 11(i)(a) of the said act. ..... as per the afore extracted legislative prescription, the number of councilors for madikeri city municipal council ['madikeri c.m.c. ..... the legislative prescription is such that it cannot be wished away as directory.21. ..... the executive action is not in keeping with the legislative prescription. ..... the fixation has to be strictly as per the legislative prescription. .....