In the Court of Hon’ble Civil Judge, District Court

Suit No.___/2019

RES JUDICATA

In the matter of:

SinLatex Pvt. Ltd

Versus

Cyprus International Pvt. Ltd & Anr.

(APPLICATION UNDER SECTION 73 of The Indian Contract Act, 1872)

PROJECT for CIVIL PROCEDURE CODE & LIMITATION ACT II

Submitted by:

ADWITIYA CHAKRABARTI

PRN: 16010223003

GROUP: A

Semester VII

4th Year

Batch: 2016-21

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

Under the guidance of:

Ms. Megha Nagpal

Assistant Professor

Symbiosis Law School, NOIDA

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 DECLARATION
This Research Project based on a hypothetical civil dispute relating to RES JUDICATA,
submitted by the undersigned to Symbiosis Law School, NOIDA, Symbiosis International
(Deemed University), Pune for the course Civil Procedure Code and Limitation Act I as part
of Internal Assessment is based on an imaginary situation which has no relation to any person
living or dead. The research work has not been submitted elsewhere for award of any degree
or any other purpose whatsoever.

The draft portion of the project has been submitted purely for understanding applicability of
provisions of the Code of Civil Procedure, 1908 as part of research project for the aforesaid
course. The designation/s, if any, given in the project are purely hypothetical.

The contents of the project are original and not plagiarised. The material borrowed from other
sources and incorporated in the project has been duly acknowledged.

I have also taken due care that the contents of my project are not similar or same as another
learner‘s project for the aforesaid course.

I understand that I could be held responsible and accountable for plagiarism, if any, even if
detected later.

(Signature of the Learner)

Date: 7th August, 2019

Name of the Learner: Pranav Bhaskar Tiwari

PRN: 1600223003

Batch: 2016-21

Programme- B.A.L.L.B.

Group: A

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University) ,Pune

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 Hypothetical Situation

 Brief of parties:

Plaintiff: SinLatex Pvt. Ltd., is a company incorporated in the year 2000, in West
Bengal where the company initiated its import and export business of rubber latex. In
few years, the company flourished and opened branches in several other states in
India, of which Delhi was one such state.

Defendant No. 1: Cyprus International Pvt. Ltd., is mainly a construction company

that is based in Delhi and has built a reputable strata among one of the best
construction companies in the state.

Defendant No. 2: Brandroot Homes, is a subsidiary branch of defendant no. 1, but it

bases itself on doing interior designing and furnishing work. The business of both the
companies is entirely separate, functioned by different administrators however they
share mutual funding, and in certain cases work in collaboration with each other.
Brandroot Homes also bases itself in Delhi and has no other branch elsewhere, apart
from the state of Delhi.

 Facts of the case:

In the year 2010, the plaintiff signed a contract under which it hired defendant no.1
and defendant no. 2 for the construction and furnishing respectively of its new office
and storage unit in the state of Delhi. Wherein both the defendants were working in
collaboration with each other.

The contract was explicitly a time-honoured kind, wherein both the defendants were
required by a specific clause to complete the entire project by the year 2013, to
provide a fully functional office for the plaintiff to start its business in Delhi.

However, due to the on-going trifle between the workmen union and defendant no. 1,
the construction work of the plaintiff was delayed by an approximate 2 years. In this
scenario, the plaintiff did not have the slightest information of such issues, and
defendant no. 1 being well known establishment did not publicise of such happenings.

The delay of completion of the said project led to the plaintiff temporarily renting an
office space that did not have the required conditions for a suitable storage unit. The
requirements of such were so specific that it had to be built in a certain way for
exclusively storing the raw materials which were essentially the product which based
the business for the plaintiff. Both the defendants were aware of such preconditions
and with full knowledge of such entered into the contract.

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 Further, the delay and the situational remedy of renting an office space caused a
damage of Rs. 2,75,00,000 to the plaintiff, as the lack of an appropriate storage unit
destroyed the raw materials.

In the year 2016, the plaintiff filed a civil suit against defendant no. 1 and defendant
no. 2 for breach of contract under Section 73 of The Indian Contract Act, 1872 in the
Delhi High Court. Claiming the damage of Rs. 2,75,00,000 for their inability to
complete the construction.

After proceeding of the said suit, the Hon’ble Civil Judge passed a preliminary decree
granting the said damage to the plaintiff inclusive of all other damages, in the year
2018.

Further, in the year 2019, the plaintiff filed a fresh suit under Section 73 of the Indian
Contract Act, 1872, under The Hon’ble Civil Judge, District Court claiming an
additional damages of Rs. 80,00,000. The Hon’ble Court dismissed the suit on the
grounds of Section 11 of The Code of Civil Procedure as the matter had already been
dealt with in the preliminary decree passed by the Hon’ble Delhi High Court.

The plaintiff contested that the Hon’ble Court only passed a preliminary decree.

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 Question of Law

Q1. Can preliminary decree be considered final decree?

Disputed Provisions of Law

1. Section 11 of The Code of Civil Procedure

Res Judicata-

No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised' and has been heard and finally decided by such
Court.

Explanation I.—The expression " former suit " shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.—For the purposes of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of
such Court.

Explanation III.—The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by the
other.

Explanation IV.—Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit.

Explanation V.—Any relief claimed in the plaint, which is not expressly granted by
the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a

private right claimed in common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemed to claim under the persons
so litigating.

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 Explanation VII.- The provisions of this section shall apply to a proceeding for the
execution of a decree and references in this section to any suit, issue or former suit
shall be construed as references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former proceeding for the execution
of that decree.

Explanation VIII.- An issue heard and finally decided by a Court of limited

jurisdiction, competent to decide such issue, shall operate as res judicata in a
subsequent suit, notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.

2. Section 73 of The Indian Contract Act, 1872:

Compensation for loss or damage caused by breach of contract.—

When a contract has been broken, the party who suffers by such breach is entitled to
receive, from the party who has broken the contract, compensation for any loss or
damage caused to him thereby, which naturally arose in the usual course of things
from such breach, or which the parties knew, when they made the contract, to be
likely to result from the breach of it. —When a contract has been broken, the party
who suffers by such breach is entitled to receive, from the party who has broken the
contract, compensation for any loss or damage caused to him thereby, which naturally
arose in the usual course of things from such breach, or which the parties knew, when
they made the contract, to be likely to result from the breach of it." Such
compensation is not to be given for any remote and indirect loss or damage sustained
by reason of the breach. Compensation for failure to discharge obligation resembling
those created by contract.—When an obligation resembling those created by contract
has been incurred and has not been discharged, any person injured by the failure to
discharge it is entitled to receive the same compensation from the party in default, as
if such person had contracted to discharge it and had broken his contract. —When an
obligation resembling those created by contract has been incurred and has not been
discharged, any person injured by the failure to discharge it is entitled to receive the
same compensation from the party in default, as if such person had contracted to
discharge it and had broken his contract." Explanation.—In estimating the loss or
damage arising from a breach of contract, the means which existed of remedying the
inconvenience caused by the non-performance of the contract must be taken into
account. Illustrations

(a) A contracts to sell and deliver 50 maunds of saltpetre to B, at a certain price to be paid on
delivery. A breaks his promise. B is entitled to receive from A, by way of compensation, the
sum, if any, by which the contract price falls short of the price for which B might have
obtained 50 maunds of saltpetre of like quality at the time when the saltpetre ought to have
been delivered. (a) A contracts to sell and deliver 50 maunds of saltpetre to B, at a certain

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price to be paid on delivery. A breaks his promise. B is entitled to receive from A, by way of
compensation, the sum, if any, by which the contract price falls short of the price for which B
might have obtained 50 maunds of saltpetre of like quality at the time when the saltpetre
ought to have been delivered."

(b) A hires B’s ship to go to Bombay, and there takes on board, on the first of January, a
cargo, which A is to provide, and to bring it to Calcutta, the freight to be paid when earned.
B’s ship does not go to Bombay, but A has opportunities of procuring suitable conveyance
for the cargo upon terms as advantageous as those on which he had chartered the ship. A
avails himself of those opportunities, but is put to trouble and expense in doing so. A is
entitled to receive compensation from B in respect of such trouble and expense. (b) A hires
B’s ship to go to Bombay, and there takes on board, on the first of January, a cargo, which A
is to provide, and to bring it to Calcutta, the freight to be paid when earned. B’s ship does not
go to Bombay, but A has opportunities of procuring suitable conveyance for the cargo upon
terms as advantageous as those on which he had chartered the ship. A avails himself of those
opportunities, but is put to trouble and expense in doing so. A is entitled to receive
compensation from B in respect of such trouble and expense."

(c) A contracts to buy of B, at a stated price, 50 maunds of rice, no time being fixed for
delivery. A afterwards informs B that he will not accept the rice if tendered to him. B is
entitled to receive from A, by way of compensation, the amount, if any, by which the contract
price exceeds that which B can obtain for the rice at the time when A informs B that he will
not accept it. (c) A contracts to buy of B, at a stated price, 50 maunds of rice, no time being
fixed for delivery. A afterwards informs B that he will not accept the rice if tendered to him.
B is entitled to receive from A, by way of compensation, the amount, if any, by which the
contract price exceeds that which B can obtain for the rice at the time when A informs B that
he will not accept it."

(d) A contracts to buy B’s ship for 60,000 rupees, but breaks his promise. A must pay to B,
by way of compensation, the excess, if any, of the contract price over the price which B can
obtain for the ship at the time of the breach of promise. (d) A contracts to buy B’s ship for
60,000 rupees, but breaks his promise. A must pay to B, by way of compensation, the excess,
if any, of the contract price over the price which B can obtain for the ship at the time of the
breach of promise."

(e) A, the owner of a boat, contracts with B to take a cargo of jute to Mirzapur, for sale at that
place, starting on a specified day. The boat, owing to some avoidable cause, does not start at
the time appointed, whereby the arrival of the cargo at Mirzapur is delayed beyond the time
when it would have arrived if the boat had sailed according to the contract. After that date,
and before the arrival of the cargo, the price of jute falls. The measure of the compensation
payable to B by A is the difference between the price which B could have obtained for the
cargo at Mirzapur at the time when it would have arrived if forwarded in due course, and its
market price at the time when it actually arrived. (e) A, the owner of a boat, contracts with B
to take a cargo of jute to Mirzapur, for sale at that place, starting on a specified day. The boat,
owing to some avoidable cause, does not start at the time appointed, whereby the arrival of

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the cargo at Mirzapur is delayed beyond the time when it would have arrived if the boat had
sailed according to the contract. After that date, and before the arrival of the cargo, the price
of jute falls. The measure of the compensation payable to B by A is the difference between
the price which B could have obtained for the cargo at Mirzapur at the time when it would
have arrived if forwarded in due course, and its market price at the time when it actually
arrived."

(f) A contracts to repair B’s house in a certain manner, and receives payment in advance. A
repairs the house, but not according to contract. B is entitled to recover from A the cost of
making the repairs conform to the contract. (f) A contracts to repair B’s house in a certain
manner, and receives payment in advance. A repairs the house, but not according to contract.
B is entitled to recover from A the cost of making the repairs conform to the contract."

(g) A contracts to let his ship to B for a year, from the first of January, for a certain price.
Freights rise, and, on the first of January, the hire obtainable for the ship is higher than the
contract price. A breaks his promise. He must pay to B, by way of compensation, a sum equal
to the difference between the contract price and the price for which B could hire a similar
ship for a year on and from the first of January. (g) A contracts to let his ship to B for a year,
from the first of January, for a certain price. Freights rise, and, on the first of January, the hire
obtainable for the ship is higher than the contract price. A breaks his promise. He must pay to
B, by way of compensation, a sum equal to the difference between the contract price and the
price for which B could hire a similar ship for a year on and from the first of January."

(h) A contracts to supply B with a certain quantity of iron at a fixed price, being a higher
price than that for which A could procure and deliver the iron. B wrongfully refuses to
receive the iron. B must pay to A, by way of compensation, the difference between the
contract price of the iron and the sum for which A could have obtained and delivered it. (h) A
contracts to supply B with a certain quantity of iron at a fixed price, being a higher price than
that for which A could procure and deliver the iron. B wrongfully refuses to receive the iron.
B must pay to A, by way of compensation, the difference between the contract price of the
iron and the sum for which A could have obtained and delivered it."

(i) A delivers to B, a common carrier, a machine, to be conveyed, without delay, to A’s mill,
informing B that his mill is stopped for want of machine. B unreasonably delays the delivery
of the machine, and A, in consequence, loses a profitable contract with the Government. A is
entitled to receive from B, by way of compensation, the average amount of profit which
would have been made by the working of the mill during the time that delivery of it was
delayed, but not the loss sustained through the loss of the Government contract. (i) A delivers
to B, a common carrier, a machine, to be conveyed, without delay, to A’s mill, informing B
that his mill is stopped for want of machine. B unreasonably delays the delivery of the
machine, and A, in consequence, loses a profitable contract with the Government. A is
entitled to receive from B, by way of compensation, the average amount of profit which
would have been made by the working of the mill during the time that delivery of it was
delayed, but not the loss sustained through the loss of the Government contract."

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(j) A, having contracted with B to supply B with 1,000 tons of iron at 100 rupees a ton, to be
delivered at a stated time, contracts with C for the purchase of 1,000 tons of iron at 80 rupees
a ton, telling C that he does so for the purpose of performing his contract with B. C fails to
perform his contract with A, who cannot procure other iron, and B, in consequence, rescinds
the contract. C must pay to A 20,000 rupees, being the profit which A would have made by
the performance of his contract with B. (j) A, having contracted with B to supply B with
1,000 tons of iron at 100 rupees a ton, to be delivered at a stated time, contracts with C for the
purchase of 1,000 tons of iron at 80 rupees a ton, telling C that he does so for the purpose of
performing his contract with B. C fails to perform his contract with A, who cannot procure
other iron, and B, in consequence, rescinds the contract. C must pay to A 20,000 rupees,
being the profit which A would have made by the performance of his contract with B."

(k) A contracts with B to make and deliver to B, by a fixed day, for a specified price, a
certain piece of machinery. A does not deliver the piece of machinery, at the time specified,
and, in consequence of this, B is obliged to procure another at a higher price than that which
he was to have paid to A, and is prevented from performing a contract which B had made
with a third person at the time of his contract with A (but which had not been communicated
to A), and is compelled to make compensation for breach of that contract. A must pay to B,
by way of compensation, the difference between the contract price of the price of machinery
and the sum paid by B for another, but not the sum paid by B to the third person by way of
compensation. (k) A contracts with B to make and deliver to B, by a fixed day, for a specified
price, a certain piece of machinery. A does not deliver the piece of machinery, at the time
specified, and, in consequence of this, B is obliged to procure another at a higher price than
that which he was to have paid to A, and is prevented from performing a contract which B
had made with a third person at the time of his contract with A (but which had not been
communicated to A), and is compelled to make compensation for breach of that contract. A
must pay to B, by way of compensation, the difference between the contract price of the price
of machinery and the sum paid by B for another, but not the sum paid by B to the third person
by way of compensation."

(l) A, a builder, contracts to erect and finish a house by the first of January, in order that B
may give possession of it at that time to C, to whom B has contracted to let it. A is informed
of the contract between B and C. A builds the house so badly that, before the first of January,
it falls down and has to be re-built by B, who, in consequence, loses the rent which he was to
have received from C, and is obliged to make compensations to C for the breach of his
contract. A must make compensation to B for the cost of rebuilding of the house, for the rent
lost, and for the compensation made to C. (l) A, a builder, contracts to erect and finish a
house by the first of January, in order that B may give possession of it at that time to C, to
whom B has contracted to let it. A is informed of the contract between B and C. A builds the
house so badly that, before the first of January, it falls down and has to be re-built by B, who,
in consequence, loses the rent which he was to have received from C, and is obliged to make
compensations to C for the breach of his contract. A must make compensation to B for the
cost of rebuilding of the house, for the rent lost, and for the compensation made to C."

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(m) A sells certain merchandise to B, warranting it to be of a particular quality, and B, in
reliance upon this warranty, sells it to C with a similar warranty. The goods prove to be not
according to the warranty, and B becomes liable to pay C a sum of money by way of
compensation. B is entitled to be reimbursed this sum by A. (m) A sells certain merchandise
to B, warranting it to be of a particular quality, and B, in reliance upon this warranty, sells it
to C with a similar warranty. The goods prove to be not according to the warranty, and B
becomes liable to pay C a sum of money by way of compensation. B is entitled to be
reimbursed this sum by A."

(n) A contracts to pay a sum of money to B on a day specified. A does not pay the money on
that day. B, in consequence of not receiving the money on that day, is unable to pay his debts,
and is totally ruined. A is not liable to make good to B anything except the principal sum he
contracted to pay, together with interest upto the day of payment. (n) A contracts to pay a
sum of money to B on a day specified. A does not pay the money on that day. B, in
consequence of not receiving the money on that day, is unable to pay his debts, and is totally
ruined. A is not liable to make good to B anything except the principal sum he contracted to
pay, together with interest upto the day of payment."

(o) A contracts to deliver 50 maunds of saltpetre to B on the first of January, at a certain

price, B, afterwards, before the first of January, contracts to sell the saltpetre to C at a price
higher than the market price of the first of January. A breaks his promise. In estimating the
compensation payable by A to B, the market price of the first of January, and not the profit
which would have arisen to B from the sale to C, is to be taken into account. (o) A contracts
to deliver 50 maunds of saltpetre to B on the first of January, at a certain price, B, afterwards,
before the first of January, contracts to sell the saltpetre to C at a price higher than the market
price of the first of January. A breaks his promise. In estimating the compensation payable by
A to B, the market price of the first of January, and not the profit which would have arisen to
B from the sale to C, is to be taken into account."

(p) A contracts to sell and deliver 500 bales of cotton to B on a fixed day. A knows nothing
of B’s mode of conducting his business. A breaks his promise, and B, having no cotton, is
obliged to close his mill. A is not responsible to B for the loss caused to B by closing of the
mill. (p) A contracts to sell and deliver 500 bales of cotton to B on a fixed day. A knows
nothing of B’s mode of conducting his business. A breaks his promise, and B, having no
cotton, is obliged to close his mill. A is not responsible to B for the loss caused to B by
closing of the mill."

(q) A contracts to sell and deliver to B, on the first of January, certain cloth which B intends
to manufacture into caps of a particular kind, for which there is no demand, except at that
season. The cloth is not delivered till after the appointed time, and too late to be used that
year in making caps. B is entitled to receive from A, by way of compensation, the difference
between the contract price of the cloth and its market price at the time of delivery, but not the
profits which he expected to obtain by making caps, nor the expenses which he has been put
to in making preparation for the manufacture. (q) A contracts to sell and deliver to B, on the
first of January, certain cloth which B intends to manufacture into caps of a particular kind,

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for which there is no demand, except at that season. The cloth is not delivered till after the
appointed time, and too late to be used that year in making caps. B is entitled to receive from
A, by way of compensation, the difference between the contract price of the cloth and its
market price at the time of delivery, but not the profits which he expected to obtain by
making caps, nor the expenses which he has been put to in making preparation for the
manufacture."

(r) A, a ship owner, contracts with B to convey him from Calcutta to Sydney in A’s ship,
sailing on the first of January, and B pays to A, by way of deposit, one-half of his passage-
money. The ship does not sail on the first of January, and B, after being, in consequence,
detained in Calcutta for some time, and thereby put to some expense, proceeds to Sydney in
another vessel, and, in consequence, arriving too late in Sydney, loses a sum of money. A is
liable to repay to B his deposit, with interest, and the expense to which he is put by his
detention in Calcutta, and the excess, if any, of the passage-money paid for the second ship
over that agreed upon for the first, but not the sum of money which B lost by arriving in
Sydney too late. (r) A, a ship owner, contracts with B to convey him from Calcutta to Sydney
in A’s ship, sailing on the first of January, and B pays to A, by way of deposit, one-half of his
passage-money. The ship does not sail on the first of January, and B, after being, in
consequence, detained in Calcutta for some time, and thereby put to some expense, proceeds
to Sydney in another vessel, and, in consequence, arriving too late in Sydney, loses a sum of
money. A is liable to repay to B his deposit, with interest, and the expense to which he is put
by his detention in Calcutta, and the excess, if any, of the passage-money paid for the second
ship over that agreed upon for the first, but not the sum of money which B lost by arriving in
Sydney too late."

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 Case Laws

1. ChapsibhaiDhanjibhaiDanad v. Purushottam, AIR 1971 SC 1878.

Issue:Whether the Right to acquire an easement of right to light can be taken away from a
person on the ground that he was or at least considered himself to be jointowner of the
building on such land during the required statutory period of 20 years?

Rule:Per S. 15 of Easementary Act,a personwho is the owner of the building on a land can
claim right of easement by prescription over it so far as the use of light and air or support for
his building is concerned.

Application: The Full Bench of the Apex Court made a distinction between an easementary
right of way and an easementary right of light and air mentioned in the first two paragraphs
of Section 15 of the Easementary Act, and held that though a lessee of land, who is the owner
of the building on such land, cannot acquire by prescription an easement of a right of way or
one to flow water over another land of the lessor but so far as the use of light and air or
support for his building is concerned he is the owner of the building and may under the first
two paragraphs of Section 15 of the said Act acquire such easements as he would not acquire
them for anyone else but only himself under Section 12. In other words, there is a clear cut
distinction between an easementary right of light and air and any other form of easementary
right; given the fact that light and air are essential ingredients to make constructive use of any
property concerned and are in fact the very basic rights attached with the land itself and not
connected with the person of any individual, it is necessary that such an easementary right be
accorded to every individual irrespective of the fact whether he was or claims to be in fact an
owner of the property upon which such an easement has been claimed.

Conclusion: In light of the mandate under Section 15 of the Easementary Act and in light of
justice and reasonability it is pertinent that a Right of easement by prescription in respect of
right to light and air cannot be denied to a person solely on the ground that he had or claimed
ownership over the property upon which the easement is claimed.

2. Shivpyari And Anr. v. Mst. Sardari, AIR 1966 Rai 265.

Issue: Does the mistake of fact of a person that he is/was a joint owner of a property, takes
away from his entitlement of easement by prescription upon such property?

Rule: Per S. 15 of Easementary Act, limited use of another person’s land in the manner
prescribed under the said section for a continuous period of 20 years is sufficient to acquire a

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right of easement by prescription notwithstanding the fact that he mistakenly construed/
construes himself to be the owner of that property.

Application: Per the view of the bench in this case,if a person under a mistaken belief that he
has a higher right of ownership over the land of the other which he has in fact not got, has
been doing for the requisite period of 20 years something which is otherwise sufficient for the
acquisition of the right of easement, he must be deemed to have acquired such right
notwithstanding the fact that in his mind whatever he is doing, he is doing in the belief that he
is the owner of the other land though it turns out that he is not the owner of that other land. In
other words, if the physical acts committed by him are such as to entitle him to acquire the
right of easement, the mere fact that he has performed such acts with the consciousness that
the other land belonged to him and not to the other person should not operate against him in
the matter of acquisition of easement. Such an opinion is in affirmation of the basic principles
of justice and equity wherein a slight misconception of fact or the non fulfilment of the
essentials required for claiming a higher right cannot be allowed to obstruct a person from
claiming a lower right.

Conclusion: The mere fact thata person was under a mistaken belief that he is an owner of an
adjoining plot of land or where he is making an unfounded claim of ownership over it, does
not cease his right to acquire right of light and air or even right of way or if the physical acts
which he does are sufficient in the eye of law to grant him such a right as an easement
acquired by prescription.

Answer:

In any matter of acquisition of an easementary right by prescription, the court only needs to
see that the person acquiring such a right has been using the other land on which such right is
being acquired for the purpose of having access to his land peaceably, open and without
interruption and his animus in the exercise of such right does not come in the picture.

Per Halsbury's Laws of England, Third Edition, Volume 12, (Para 1209 Page 558) the
nature of user, of an owner, occupier of another man's land has been mentioned, as
follows:

"With regard to all forms of easements, the user contemplated by the statute is user sufficient
to indicate, during the whole of the statutory period (and whether acts of user be proved in
each year or not), to a reasonable person in possession of the servient tenement the fact that a
continuous right to enjoyment is being asserted and ought to be resisted, if that right is not to
be recognised, and if resistance to it is intended, and no user can be sufficient which does not
raise a reasonable inference of continuous enjoyment."

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The same principle has also been stated in Articles 457-58 in the Re-statement of the Law
(Property Servitudes), Vol. 5 (1944 Edn.) of the American Law Institute, Publishers St.
Paul (Pages 2923-24):

" Art. 457.-Creation of Easements by prescription. An easement is created by such use of

land, for the period of prescription, as would be privileged if an easement existed, provided
the use is-(a) adverse, and(b) for the period of prescription, continuous and uninterrupted.

Art. 458.- Adverse use A use of land is adverse to the owner of an interest in land which is or
may become possessory when it is(a) not made in subordinate to him, and(b) wrongful, or
may be made by him wrongful, as to him, and(c) open and notorious."

Section 15 of the Easements Act which lays down the law for India is based on the same
principles.

It is true that the owner of one land cannot acquire easement if he is the owner of another
land on which he seeks to acquire easement. Unity of ownership is thus destructive to the
acquisition of the right of easement but the same cannot be said of a person who is making an
unfounded claim on another land if as a matter of fact he is making only a limited use of the
other land. In other words, if a person under a mistaken belief that he has a higher right of
ownership over the land of the other which he has in fact not got, has been doing for the
requisite period of 20 years something which is otherwise sufficient for the acquisition of the
right of easement by prescription, he must be deemed to have acquired such right
notwithstanding the fact that in his mind whatever he was doing, was under the belief that he
is the owner of the other land though it turns out that he is not the owner of that other land.
Therefore, if the physical acts committed by a person are such as to entitle him to acquire the
right of easement, the mere fact that he has performed such acts with the consciousness that
the other land belonged to him and not to the other person should not operate against him in
the matter of acquisition of easement by prescription.

In arguendo, even if in a given fact situation, right of way as an easementary right is denied to
a person, however the right to easement by prescription in respect of light and air can
certainly not be denied to the individual per the opinion of the Hon’ble Supreme Court of
India in the case of ChapsibhaiDhanjibhaiDanad v. Purushottam, AIR 1971 SC 1878
(discussed above), as these are very basic rights attached with the land itself and it is integral
for the person claiming it in order to make meaningful use of his own property.

Remedy

Thereby it is confirmed that the plaintiff has acted per the requirements of Section 25 and
Section 15 of the Limitation Act and Easement Act respectively and thereby has acquired a
right of easement by prescription. Consequently, the suit is allowed and it is held that the
plaintiff is entitled to an uninterrupted easementary right over the passage which is the way of

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light in their house. Hence the respondents are instructed to immediately demolish the wall
constructed by them that has been hampering the plaintiff’s right to exercise his easementary
right over the property and a permanent injunction is placed over the respondents to prevent
them from doing any such obstructive construction in the future.

APPLICATION FOR GRANT OF PRESCRIPTIVE

EASEMENT

In the Court of Hon’ble Civil Judge, District Court

Smt. Sumitra Gupta

Mr. NirvicharVyavasya ...........................................................................Plaintiff

Versus

Mr. Aradhya Aulokik ...................................................................... Defendant

Claim Petition under Section 25 of Limitation Act& Section 15 of Easement Act

SUBJECT: APPLICATION SEEKING RIGHT OF EASEMENT BY PRESCRIPTION

RESPECTFULLY SHOWETH:

1- That the above noted petition is pending in this Hon’ble court and is fixed for hearing on
1st February 2019.

2- That the plaintiff satisfies all the essentials per S. 25 and S. 15 of Limitation Act and
Easementary Act respectively which makes him entitled to the Right of Easement by
prescription and thereby he solicits this court to be granted the same

3- That the wall constructed by the respondent is obstructing the plaintiff in exercising his
legal right of easement of light and thereby he prays for the order of demolition of the same.

4- The plaintiff further prays to be granted a permanent injunction against construction of any
structure that would create an obstruction in his valid exercise of right of easement by
prescription.

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Sd/-

Advocate for the Applicant

BIBLIOGRAPHY

Bare Acts:

1. Civil Procedure Code, 1908

2. The Limitation Act, 1963
3. Easement Act, 1882

Books:
1. B.M Prasad, Mulla‘s Code of Civil Procedure (Lexis Nexis Butterworths: 2017).
2. M.P Jain, Code of Civil Procedure (Lexis Nexis Butterworths: 2013).
3. Sir DinshawFardunji Mulla, The Key to Indian Practice (Lexis Nexis: 2016). 4.
Jatindra Kumar
4. P.K. Majumdar and R.P. Kataria, Commentary on the Code of Civil Procedure, 1908,
(Universal Law Publication, Delhi: 1998).
5. Justice SA Kader, UN Mitra‘s Law of Limitation & Prescription (2 volumes)
(LexisNexis: 2013).
6. Shriniwas Gupta, The Limitation Act (Universal Law Publishing: 2016).

Journals:
1. Boyd, J., Caballero, K. and Simpson, R.D., 2000. The law and economics of habitat
conservation: lessons from an analysis of easement acquisitions. Stan. Envtl. LJ, 19,
p.209.
2. Pomerantz, A.L., 2010. Obtaining Copyright Licenses by Prescriptive Easement: A
Solution to the Orphan Works Problem. Jurimetrics, pp.195-227.
3. Hernandez, M.V., 2005. Restating Implied, Prescriptive, and Statutory
Easements. Real Property, Probate and Trust Journal, pp.75-115.
4. Bissonnette, A.P., 1975. An Overview of the Question of Access across Indian
Lands. Land & Water L. Rev., 10, p.93.
5. Jayaram, P. and Rajagopal, R., 2010. Land reform and housing in India. Centre for
Public Policy Research, Kerala, India.

Online Sources:

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 1. https://www.phillips-angley.com/Articles/Differences-between-adverse-possession-
and-prescriptive-easement.shtml
2. https://www.lawreform.vic.gov.au/sites/default/files/EandC_Final_Report_ch_4.pdf
3. https://www.mplaw.co.uk/news-events/our-news/detail/2017/08/04/acquisition-of-
prescriptive-easements
4. https://www.prepagent.com/article/prescriptive-easement
5. https://realestate.findlaw.com/land-use-laws/prescriptive-easements.html
6. https://civillawyersindia.wordpress.com/2012/12/24/amendment-in-plaint-under-
order-vi-rule-17-of-cpc/
7. http://www.affidavitformhub.com/amendment-of-title-of-petition/

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