JUDGMENT Sanjay K. Agrawal, J. 1. This appeal has been admitted for final hearing on 23-2-2005 on the following substantial question of law:-- Whether the suit was wrongly dismissed by both the Courts below with the observation that the plaintiffs have not proved that the right was used as an easementary right and this finding is against the record? [For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.] Shorn off unnecessary details, the core facts that would need a recital are enumerated herein below:-- 1.1. Plaintiffs/Bhaiyaram and Ramlal filed a suit for declaration and permanent injunction stating inter alia that they are the owners and title-holders of the land as mentioned in Paragraph 2 of the plaint and they have a right to way on the land bearing Khasra No. 2263/3 area 7 dismil and Khasra No. 2262 area 22 dismil recorded in the names of defendant Nos. 1 and 2, namely, Tulsiram and Tukaram, respectively for approaching their agricultural fields from the main road for the time immemorial, but, defendant Nos. 1 and 2 were entering into an agreement to sell the said land against which notices dated 3-6-1996 and 4-7-1996 raising objections were served by them upon defendant Nos. 1 and 2. Defendant Nos. 1 and 2 were requested to leave 20 feet wide road for use of the plaintiffs as a way to their agricultural fields. The plaintiffs prayed that a decree for declaration be passed holding that the plaintiffs have an easement of right to way on the defendants' land and they are entitled for a permanent injunction. 1.2. Defendant Nos. 1 and 2 remained ex parte before the Trial Court as they did not enter into appearance. Ex parte evidence of the plaintiffs was recorded by the Trial Court. 2. The Trial Court framed the following issue:-- The Trial Court, by judgment and decree dated 6-1-1998, dismissed the suit holding that there is no oral or documentary evidence on record to prove the right to way on the defendants' land claimed by the plaintiffs. 3. On an appeal filed by the plaintiffs, the First Appellate Court, by impugned judgment and decree dated 21-9-2004, dismissed the same holding that the plaintiffs have failed to establish their easement of right to way on the defendants' land. 4. 3. On an appeal filed by the plaintiffs, the First Appellate Court, by impugned judgment and decree dated 21-9-2004, dismissed the same holding that the plaintiffs have failed to establish their easement of right to way on the defendants' land. 4. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (henceforth "the CPC") by the plaintiffs challenging the judgment and decree passed by the two Courts below dismissing the suit. 5. Shri D.N. Prajapati, learned Counsel appearing for the appellants/plaintiffs would submit that both the Courts below have committed a legal error in dismissing the suit of the plaintiffs ignoring the overwhelming evidence available on record to hold that the plaintiffs are enjoying the easement of right to way on the defendants' land for the last 20 years. 6. None appeared on behalf of respondent Nos. 1 and 2/defendant Nos. 1 and 2 though served to support the impugned judgment. Shri Akhil Agrawal, learned Panel Lawyer appeared on behalf of the State. 7. I have heard the arguments and have also perused the record with utmost circumspection. 8. The term "Easement" has been defined in Section 4 of the Indian Easements Act, 1882 (henceforth "the Act of 1882"). The definition runs thus:-- 4. 'Easement' defined.--An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners.--The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation:--In the first and second clauses of this section, the expression 'land' includes also things permanently attached to the earth; the expression 'beneficial enjoyment' includes also possible convenience, remote advantage, and even a mere amenity; and the expression 'to do something' includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon. 9. 9. Section 15 of the Act of 1882 provides for acquisition by prescription as under:-- 15. Acquisition by prescription.--Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. *** *** *** Explanation IV:--In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words 'twenty years' the words 'thirty years' were substituted. 10. A close reading of Section 15 of the Act of 1882 would show that a right to way or any other easement can be acquired by prescription under Section 15 of the Act of 1882 provided the right to access/way has been enjoyed:-- (i) peaceably, (ii) openly, (iii) as an easement, (iv) as of right, (v) without interruption, and (vi) for last 20 years. 11. Section 19 of the Act of 1882 speaks about passing of easement on account of transfer of dominant heritage. Section 19 reads as under:-- 19. Transfer of dominant heritage passes easement.--Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place. 12. Section 19 reads as under:-- 19. Transfer of dominant heritage passes easement.--Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place. 12. The purpose of elucidating the law contemplated in Sections 4, 15 and 19 of the Act of 1882 is that whether in the given case the plaintiffs are having easementary right and whether they have acquired such right by prescription. 13. There cannot be any doubt that easement is a right and the same is not a mercy. If a plaintiff is having an easementary right, certainly he can establish it and continue to exercise it by filing a suit if the defendant obstructs him to exercise it. If an easementary right is in respect of a way on the servient heritage to approach the dominant heritage, the plaintiff is bound to prove his case on the foregoing tests in order to bring his case within the purview of Section 15 of the Act of 1882. 14. It is a well-settled law that a right of easement is a precarious and special right claimed over the land of another. A party claiming or relying on easement should plead the nature of title thereto as to clearly show the origin of right, whether it arises by statutory prescription etc. and whenever a right of easement is claimed, pleading should be precise and clear and it should not be vague, as right of easement is one which a person claims over a land which is not his own. 15. Gale on Easements (15th Edition; Pages 3 and 4) states the precise nature of an easement as under:-- It is of the essence of an easement that, as between two pieces of land, there is a shift in the equilibrium of natural rights incident to their ownership, a diminution in the natural rights of one being accompanied by a corresponding artificial addition to the natural rights of the other; the result being that a conveyance of either operate automatically, and can only operate, as a transfer of natural rights diminished, or of natural rights plus an additionally acquired right. At Page 415 of the book, the learned author states thus:-- Under the present system of pleading, it is conceived that, whether the section be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the Prescription Act, and in many cases it is advisable to plead, alternatively, a title by all three methods. 16. In Justiniano Antao and others Vs. Bernadette B. Pereira (Smt.), (2005) 1 SCC 471 , the Supreme Court held that in order to establish a right by way of prescription, there should be specific pleading and categorical evidence in general and specifically that since what date to which date one is using the access for last 20 years. It held thus:-- 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 am 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. 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 aright 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 Exh. 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. 17. In the above referred to decision, Their Lordships held that there should be categorical pleadings that since what date of which date one is using the access for the last 20 years. 17. In the above referred to decision, Their Lordships held that there should be categorical pleadings that since what date of 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. 18. In Surendra Singh Inder Singh and another Vs. Phirozshah Bairamji and another, AIR 1953 Nagpur 205, a Division Bench of Nagpur High Court held thus:-- (9) It is necessary to point out that pleadings in a case dealing with easement have to be very precise. As has been stated by Peacock in his 'Law Relating to Easements in British India', third Edition at Page 608:-- As an easement is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement should plead the nature of this title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant. 19. Thus, having ascertained the legal position, I shall revert back to the facts of the instant case. A bare perusal of the plaint would show that the plaintiffs have simply stated in the plaint that they are using the defendants' land from the time of their forefathers for the purpose of cultivating their own lands and thereby they have acquired the easement of right to way on the defendants' land. When they came to know about the fact of sale of the said land of defendant Nos. 1 and 2, they issued them notices dated 3-6-1996 and 4-7-1996. A perusal of the notice dated 3-6-1996 (Exh. P-1) would reveal that plaintiff-Bhaiyaram simply stated therein that the defendants' land is being used by the plaintiffs for a long time as a way to their agricultural fields and as such they have acquired easement of right to way on the defendants' land. No particular period of time that since what date to which date the defendants' land had been in use by the plaintiffs for the last 20 years as a way to their agricultural fields has been stated in the plaintiffs' notice (Exh. P-1). Likewise, notice dated 4-7-1996 (Exh. P-10) issued on behalf of plaintiff-Ramlal is also very cryptic. No particular period of time that since what date to which date the defendants' land had been in use by the plaintiffs for the last 20 years as a way to their agricultural fields has been stated in the plaintiffs' notice (Exh. P-1). Likewise, notice dated 4-7-1996 (Exh. P-10) issued on behalf of plaintiff-Ramlal is also very cryptic. In the said notice (Exh. P-10), it is stated that plaintiff-Ramlal is using the defendants' land from his forefathers' time. Even in this notice (Exh. P-10), no period of time is specified for which the plaintiffs have been using the defendants' land for an access to their agricultural fields. In the ex parte evidence recorded before the Trial Court, the plaintiffs stated that they have been using the defendants' land for last 40-45 years to have an approach to their agricultural fields, which is supported by the plaintiffs' witness Ramji (P.W. 2), aged about 75 years. There is no documentary evidence on record, as recorded by both the Courts below, that the defendants' land had been in use by the plaintiffs for the last 20 years. The fact remains that neither there is a precise pleading that since what date to which date for the last 20 years the defendants' land had been in use by the plaintiffs to have an access to their agricultural fields nor any document has been filed by the plaintiffs to establish the plea of exercising the easement of right to way for the last 20 years taken by them in Paragraph 6 of the plaint. Thus, having examined the matter with utmost circumspection in the light of the settled legal position and the evidence available on record, I do not find any infirmity or illegality in the impugned judgment and decree. The substantial question of law is answered accordingly. Consequently, the instant appeal fails and is hereby dismissed. No order as to costs. Appeal dismissed.