MANISHA MAHENDRA GALA & ORS. versus SHALINI BHAGWAN AVATRAMANI & ORS.

Citation: [2024] 4 S.C.R. 357 · Decided: 10-04-2024 · Supreme Court of India · Bench: PANKAJ MITHAL · Disposal: Dismissed

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Judgment (excerpt)

* Author
[2024] 4 S.C.R. 357 : 2024 INSC 293
Manisha Mahendra Gala & Ors. 
v. 
Shalini Bhagwan Avatramani & Ors.
(Civil Appeal No. 9642 of 2010)
10 April 2024
[Pankaj Mithal* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Appellants if had easementary right of the way over the land owned 
by the respondents i.e. the disputed rasta. Appellants’ reliance 
upon the evidence of their Power of Attorney holder/Manager of 
the property (PW-1) to prove their easementary right of way over 
the disputed rasta, if proper.
Headnotes
Easements Act, 1882 – ss.4, 13, 15 – “Easementary right” – 
Easementary right by prescription or necessity – When not 
proved:
Held: ‘Easement’ u/s.4 is a right which the owner or occupier of 
a land possesses for the beneficial enjoyment of his land on the 
other land which is not owned by him, to do and continue to do 
something or to prevent and continue to prevent something being 
done on the said land – In the present case, the Appellants are 
admittedly the owners of Survey No. 48 Hissa No.15 whereas 
the respondents are the owners of Survey No.57 Hissa No.13A/1 
on which the rasta in dispute allegedly exists – Appellants 
claimed that the use of the aforesaid rasta was for the beneficial 
enjoyment of their land as they had no other way of access to 
their land and that they had been enjoying the said easementary 
right for the “last many years” – s.15 provides that for acquiring 
any easementary right by prescription, the said right must have 
been peaceably enjoyed in respect of the servient heritage (the 
land on which the easement is claimed) without any interruption 
for over 20 years – However, neither the original plaintiff nor the 
Appellants specifically claimed that they or their predecessor-
in-interest were enjoying easementary right of use of the said 
rasta for over 20 years – The term “last many years” is not 
sufficient to mean that they have been enjoying the same for the 
358
[2024] 4 S.C.R.
Digital Supreme Court Reports
last 20 years – Therefore, their pleadings fall short of meeting 
the legal requirement of acquiring easementary right through 
prescription – No evidence to prove that the Appellants were in 
use of the said land for the last over 20 years uninterruptedly 
– They entered the scene only on purchasing the said land on 
17.09.1994 after the suit was filed and as such, they could not 
and have not deposed anything about the pre-existing right or 
the easementary right attached with the Dominant Heritage (the 
land which is to be enjoyed by the beneficiary) – The said right 
has to be proved as existing prior to the institution of the suit – 
Neither the Appellants nor their predecessor-in-interest came in 
the witness box – They only relied upon the deposition of their 
Power of Attorney holder/the Manager who was not having any 
authority to act as their Power of Attorney at the time his statement 
was recorded – He was granted Power of Attorney subsequently 
– Further, in the absence of any evidence or material to show 
that original plaintiff had actually acquired any easementary 
right over the rasta in dispute before the institution of the suit, 
he could not have transferred any such right in favour of the 
Appellants – Furthermore, there is an alternative way to access 
the Dominant Heritage, may be a little far away or longer which 
demolishes the easement of necessity u/s.13 – Appellants not 
entitled to any easementary right by necessity either upon the 
disputed rasta – Thus, they have not acquired easementary right 
over the disputed rasta in any manner much less by prescription, 
necessity or under an agreement– Appellate courts and High 
Court right in dismissing the Suit of the plaintiffs/appellants and 
in decreeing the Suit of the defendants/respondents. [Paras 19, 
21, 22, 27, 29, 31-33, 40]
Power of Attorney holder – Appellants relied upon the evidence 
of their Power of Attorney holder/Manager of the property (PW-
1) to prove their easementary right of way over the disputed 
rasta – Propriety:
Held: Power of Attorney holder can only depose about the facts 
within his personal knowledge and not about those facts which are 
not within his knowledge or are within the personal knowledge of 
the person who he represents or about the facts that may have 
transpired much before he entered the scene – PW-1, the Power 
of Attorney holder deposed that he was giving evidence on behalf 
of plaintiff Nos. 2 to 4 i.e. the Appellants – He was not 

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