IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 100/2002 Reserved on: 12.7.2011 Decided on:27.7. 2011 ___________________________________________________ Sarwan Singh. …Appellant. Versus Chanan Singh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. K.S. Kanwar, Advocate. For the Respondents : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 31.12.2001 rendered by the learned Additional District Judge, Sirmaur at Nahan in Civil Appeal No.40-N/13 of 2001/2000 and in Cross- Objections No. 41-N/13 of 2000. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 instituted a suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as ‘defendants’ for convenience sake) on the ground that he was exclusive owner in possession of the land comprised in Khasra No.201/91, Khata Khatauni No. 5 min/14 measuring 6-7 bighas vide jamabandi for the year 1991-92. He has purchased the land from Sh. Gian Singh vide registered sale deed dated 16.6.1994. The land of the defendants was adjoining to the suit land and they often trespass into the suit land by removing fence put up by the plaintiff around the suit land. The defendants had openly threatened the plaintiff that they would dispossess him from the suit land forcibly. It is in these circumstances that the suit was filed by the plaintiff. 3. The suit was contested by the defendants by filing written statement. They denied that they have trespassed on the suit land by removing the fence. According to the defendants, no barbed wire was existing in April, 1994 and the same was fixed by the plaintiff in the second week of May, 1994. Defendants also filed counter claim by pleading that they were owners in possession of the land comprised in Khasra No.103 measuring 17 bighas 6 biswas adjoining to the land of the plaintiff. They had been using the path, which starts from 3 P.W.D. Road and passes through Khasra No. 201/151 and 205/191/176 for the last 100 years, which leading to their land in Khasra No. 103. The width of the path was also given in the counter claim. They had taken the plea of right by way of prescription by using the said path. There was no alternative path. They have also pleaded that the path was otherwise necessary for ingress and outgress for using their land. The plea was also taken that the path was a customary path. The defendants have also filed amended counter claim and in alternative they have pleaded that they have customary easement for using the said path for reaching their fields in Khasra No.103. 4. The plaintiff filed reply to the counter claim. Trial Court dismissed the suit as well as counter claim on 21.12.1999. The plaintiff filed appeal bearing Civil Appeal No. 40-N/13 of 2001/2000 assailing the judgment dated 21.12.1999 whereby the suit preferred by him was dismissed. The defendants also filed cross-objections bearing No.41-N/13 of 2000 against the judgment dated 21.12.1999. The learned Additional District Judge, Sirmaur dismissed Civil Appeal No. 40-N/13 of 2001/2000, however, he has partly decreed the counter- claim and the plaintiff was permanently restrained from obstructing the defendants from using the ‘douls (ridges) 4 of the suit land as passage to their land comprised in Khasra No. 103. It is in these circumstances that the plaintiff has filed the present Regular Second Appeal against the judgment and decree dated 31.12.2001 rendered in Civil Appeal No.40-N/13 of 2001/2000 and in Cross-Objections No. 41-N/13 of 2000. It was admitted on the following substantial questions of law: 1. Whether the learned first appellate court was right in decreeing the counter claim of the defendants for permanent prohibitory injunction on the basis of customary right, whereas the plea set up by the defendants was of customary easement? 2. Whether the learned first Appellate Court could have granted permanent injunction of right of passage through the land of the appellant without indentifying the passage? 3. Whether no meend/doul exists on the land of plaintiff when the suit was filled and no decree permitting the defendants for customary right of passage could have been granted through the meend/doul? 4. Whether the impugned judgment and decree of the first appellate court is result of misreading and mis- appreciation of the evidence on record and the view taken by the first Appellate Court is perverse? 5. the courts below have committed illegality by considering Ex.DW-1/B which has not been proved in accordance with law? 5. Mr. K. S. Kanwar has strenuously argued that both the courts below have misconstrued and misread the evidence. He then argued on the basis of substantial questions of law framed that the cross-objections could 5 not be allowed since the defendants have based their case on customary easement and not on customary right. He then argued that the defendants have failed to identify the passage and in view of this the cross-objections could not be allowed. He further argued that since there was no maind/doul existing on the suit land, customary right of passage could not be allowed. He finally argued that the Additional District Judge has not at all discussed the evidence led by the parties while allowing the cross- objections. 6. Mr. Rajnish K. Lal has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have perused the records carefully. 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Initially, the suit was disposed of vide judgment and decree dated 31.12.1997, however, the same was remanded back by the learned District Judge on 8.10.1998 after framing additional issues. 10. Plaintiff has appeared as PW-1. According to him, he was owner in possession of the suit land 6 measuring 6 bighas 7 biswas. He has purchased it from Gian Singh. He had fenced the suit land but the defendants wanted to uproot the same. However, it is not evident from the plaint or from the statement of PW-1 when the defendants started interfering in the suit land whether it was March or April, 1994. 11. DW-3 is Chanan Singh. He was examined initially on 12.11.1997 and thereafter on 13.4.1999. He has denied that the defendants started interfering with the suit land and have tried to remove the fence. The defendants have claimed the right to path to reach Khasra No.103 existing on the douls of Khasra No.201/191/176 passing through Khasra No. 205/191/176. They have claimed their right to use the path by way of easement of necessity and by way of prescription of customary easement. 12. Now, as far as the right to use the path under section 13 is concerned, suffice it to say that it has come in the statement of DW-1 Chanan Singh that if they approach their field from the house of Kartari and Milkhi, the path is lengthy and if they go through the field of plaintiff, their land is at a short distance. 13. DW-5 Resham Singh has stated in his cross- examination that apart from the Douls on the suit land, 7 the passage to approach the fields exists through the fields of different owners. Since the alternative path is in existence, it is not a case of easement by necessity. 14. As far as passage by way of easement under sections 15 and 18 of the Act is concerned, the defendants have not proved the same. They were required to prove both the tenement. It is settled law that for easementary right there must be in existence dominant and servient tenements. The defendants were required to prove both the tenements. It has come in the evidence of plaintiff that the Douls have been dismantled and he has also explained that no such path existed on the spot. It was necessary for the defendants to prove that they had been using the passage actually, openly, peacefully and had right without interruption for 20 years. 15. Site plan Ex.DW-1/A prepared by DW-1 Rama Nand is concerned, suffice it to say that he did not know, who was the owner of the suit land and to whom the land belonged or what rights were involved. He had not consulted the Patwari. Though in his statement, he has deposed that he had seen the tatima, but the same was not produced. 16. Sanjeev Rana has submitted his report Ex.DW-2/A. He has proved site plan Ex.DW-2/B. He did 8 not call the Patwari at the spot nor consulted any revenue record or tatima. He has also not recorded the statements of the parties or Nambardar at the spot. It has not come in the report of DW-2 Sanjeev Rana or in the statement of DW-1 Rama Nand that the Douls were in existence on the spot. Thus, it cannot be said that the defendants had been using the path for generation as claimed by them. 17. The learned Additional District Judge has allowed the cross-objections partly by allowing that the defendants were entitled to use the passage on the basis of agriculture custom. Wajib-Ul-Urj was not proved on record. There is a difference between customary right and customary easement. Defendant Chanan Singh while appearing as DW-1 on 13.4.1999 has deposed that the agriculturists in village use the passage through the fields to approach their adjoining land. The right to passage through the field has never been recognized as customary easement. He has not explained what was the necessity to prepare the site plan marked ‘A’ when site plan Ex.DW- 1/A had already been prepared by PW-1 Rama Nand. Ex.DW-2/A and DW-2/B could not advance the case of the defendants. It was a pleaded case in counter claim that the plaintiff has dismantled the douls on the spot and started cultivating the suit land and sown sugarcane. 9 Thus, the douls could not be referred in the report of DW- 2. DW-3 Bagicha Singh has deposed that the mainds or douls can be used by the villagers only on the basis of easement. DW-5 Resham Singh has admitted in his cross-examination that neither in his village nor in their adjoining villages, agriculturists use the passage from the fields. He volunteered that they use the douls. He has also admitted that there is no passage of the length of 60- 70 feet and 9-10 feet wide as stated by DW-1 Chanan Singh while appearing on 13.4.1999. The witnesses produced by defendants have not deposed that the plaintiff had damaged or dismantled the douls, which according to the defendants were being used by them to reach Khasra No. 103. It was necessary for them to say so to bring the case within the ambit of section 18 of the Act. 18. The defendants have failed to prove customary easement as well. As noticed above, Wajiv-Ul-Urj has not been brought on record with tatima to show the existence of the path. Ex.DW-3/A is only consolidation scheme which could not be looked to determine the present controversy. Moreover, the pleaded case of the defendants was customary easement and not customary right. 19. In Harisadhan De and others versus Badhika Prosad Pandit and others, AIR 1938, Calcutta 10 202, learned Single Judge of Kolkata High Court has explained that there are three kinds of right way. The learned Single Judge has held the distinction between easements proper and customary rights as under: “As I have already indicated, a customary right such as the plaintiffs' claim is not an easement properly so called. An easement proper belongs to a determinate person or persons in respect of his or their land. A congeries of persons, such as the inhabitants of a locality, unless incorporated as a determinate judicial person, cannot claim an easement. A customary right belongs to no individual in particular. It may be enjoyed by anyone who inhabits a particular locality for the time being, or who belongs to the particular class entitled to the benefit of the custom. Easements are, so to speak, private rights belonging to particular persons, while customary rights are public rights annexed to the place in general.” 20. Learned Single Judge of Patna High Court in Parbhawati Devi and others versus Mahendra narain Singh and others, AIR 1981 Patna 133 has held that customary rights and customary easement are distinct. Learned Single Judge has also held that customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights 11 belonging to particular persons while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. Learned Single Judge has held as under: “2. Mr. K.D.Chatterji appearing for the appellants contended that the courts below have erred in granting a decree for easement to the plaintiffs because such a right can never be granted in favour of fluctuating body of persons. In my opinion, he is right. The man characteristics of easement are: (i) There must be dominant and a servient tenament: (ii) The easement must accommodate the dominant tenement. This is clear from the definition of easement given in Section 4 of the Indian Easements Act, 1882. The relevant portion of that section runs as under: “4. An easement is a right which the owner of 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. The land for the beneficial enjoyment of which the right exists is called the dominant heritage and, the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.” It is clear from the above that an easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from, it. There can be no easement without dominant 12 tenement and a servient tenement. Rights which are by a community or class of persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenament. Indeterminate and fluctuating body of persons such as the public or the community cannot have an easement. In the present case the easement was claimed by the plaintiffs as being the representatives of the villagers. It was not claimed by any particular person in respect of any particular and belonging and nothing was laid in the plaint as to for which dominant tenement easement was claimed. The courts below have made a mistake. I would like to refer to an expression 'customary easement' mentioned in Section 18 of the said Act. Section 18 of the Act says that an easement may be acquired by virtue of local custom and such easements are called customary easement. In the first place I would like to say that no such case was made out in the plaint. The plaintiffs did not allege anywhere in the plaint that they had acquired customary right or customary easement. It is well settled that the decision of a case cannot be based on grounds outside the pleadings and it is the case pleased that has to be found. What the courts have required of a custom, if the law is to uphold it as a right it should be immemorial in origin, certain and reasonable in nature, and continuous in use. All these tests have to be pleaded and proved. There is no such pleading in the plaint. The lower appellate court at several places in its judgment has mentioned as whether the plaintiffs had acquired easement. It formulated such questions in paragraph 9(ii) and again mentioned it at several places and ultimately it gave a finding at page 30 in paragraph 33 holding that the plaintiffs had acquired easement over the suit plot which was water reservoir subject to the ownership of the State of Bihar. Curiously enough it also observed at page 28 in paragraph 27 that the right of the villagers 13 to take water from the Houj for irrigation purposes was customary right that it was certain and ancient and that it was exercised continuously for more than 20 years with full consciousness. In the same paragraph it again held that the plaintiffs successfully proved that they had acquired right of easement over the Houj in question for the purpose of irrigation and they could not be deprived of that right. It is quite clear that the court below did not at all understand the distinction between customary right and easement. A customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body of persons like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general. I have already said that customary right was not pleaded in the plaint and the lower appellate court was not entitled to give the finding aforesaid. So far as customary easement is concerned that also is different from customary right. The Indian Easements Act, 1882 deals in Section 18 with customary easement while Section 4 of the Act defines an easement as a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment or 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. Section 18 of the Act, deals with customary easement and provides that it may be acquired in virtue of a local custom, Section 2(b) of that Act refers to a customary right in the following manner. “2. Nothing herein contained shall be deemed to affect any law not hereby expressly repealed: or to derogate from-- (a) …… 14 (b) any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property or (c)**** It would thus appear that a customary right is different from a customary easement and the Easements Act does not at all deal with it. On the other hand it expressly excludes it from its scope and purview. The real distinction between the two has been ably set forth in Perick Peackok's well known treatise on the law relating to Easements in British India, at page 205 of the second edition, as follows” “Customary easements, as they are called in Section 18 of the Indian Easements Act, should be distinguished from the customary rights referred to in Section 2, clause (b), of the same Act. The latter are rights arising by custom, by unappurtenant to a dominant tenement. No fixed period of enjoyment is necessary to establish these rights, but the custom must be reasonable and certain.” As a matter of fact, the distinction was clearly brought out as far back as 1895 in Kuar Sen Vs. Mamman ILR 17 All 87, when it was observed that there could be no right of easement, where there was no dominant tenement or heritage. The same distinction was pointed out in Palaniadi Tevan Vs. Puthirangonda Nadan, (1898) ILR 20 Mad 389. Then in Ganpat V. Narayan, Air 1933 Nag 74, it was observed by Pollock A.J.C. That a customary easement can exist “only for the beneficial enjoyment of other land” and that it is “merely appurtenant to the dominant heritage and cannot exist in gross”, whereas “a right over property that exists in gross and not for the beneficial enjoyment of other property is not an easement though it may be a customary right.” 15 The same view was reiterated by that learned Judge in Sabasha v. Bab Narayan Lokras. AIR 1938 Nag 177.Then there is the judgment in Harisadhan De. v. Radhika Prosad, AIR 1938 Cal 202 which brings out the same main point of distinction. It is thus quite clear that easement, customary easement and customary right have to be understood properly and all these three rights are different from one another. In the present case neither customary easement nor customary right has been pleaded in the plaint. There is no finding by any of the two courts below as to which was the dominant tenement for enjoyment of which the right was claimed. As already stated that the right was claimed by fluctuating body of persons, namely, the villagers. No decree, therefore declaring easement could be granted in their favour. The suit was liable to be dismissed solely upon this ground. But there is something more in this case against the plaintiffs.” 21. Learned Single Judge of Bombay High Court in Smt. Radha Krishna Kandolkar and others versus Tukaram Pundalik Homkhandi, AIR 1991 Bombay 119 has also explained the customary rights as under: “6. Difference between customary right and Customary easement-There is a world of difference between a customary right and customary easement. In fact easement is not a word even as much as whispered in the Plaint. An easement is required to be acquired by particular modalities. But the easement goes with the land or, rather with the lands : the land which claims the easement (dominant tenement) and the land which is subjected to easement (servient tenement). 16 As regards the modalities of acquisition of easement, none has been either pleaded or proved. Customary easement vests in the dominant tenement: not in the particular person or a group of persons (unless they are rightfully in possession of the dominant tenement in question). A customary right, on the other hand, is claimed by a person or by a group of persons on the basis of the custom recognized by the community as a whole. From the very nature of things, a customary right is the one which results from a custom and hence, the custom has got to be pleaded and proved in the usual manner, indicated by the Evidence Act. The object of proof and the mode of proof are entirely different in the two case. Failure to appreciate this distinction has resulted in a thoroughly illegal decree of injunction being passed by the Court below. 8. Essentials of proof of customary right.-- This brings me to the question as to what is required to be proved by the plaintiff when he claims a customary right to draw water from the defendant's pond. A customary right is recognized even by the Easement Act (Sec. S. 2). But can be claimed not as a mere personal right of the plaintiff vis-a-vis the particular defendant. It is the right of the community or the right recognized by the community as a whole. Normally, a custom has got to be immemorial, in the sense that its origin may not be traceable. In any event, it has got to be of very long duration, and of very remote and distant origin. It may be that it is not strictly speaking immemorial on certain occasions because the courts may come across witnesses sufficiently old to remember that during some time in the past in their childhood, such a custom did not prevail. But to prove the custom the long uninterrupted practice recognized by the community as a whole has to be established. Law on this point is to be found in