IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 104 of 2000. Judgment reserved on : 29.3.2010 Date of decision : 26.4.2010. Laxmi Devi ..Appellant. Vs Rattan Chand ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Bhuvnesh Sharma with Mr. Ramakant Sharma, Advocates. For the respondent : Mr. Deepak Kaushal, Advocate. Kuldip Singh, Judge The defendant has come in appeal against the judgment, decree dated 24.2.1999 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 89-D/XIII-1998 reversing the judgment, decree dated 12.8.1998 passed by the learned Sub Judge 1st Class, Court No.1, Dharamshala in Civil Suit No. 237/1990. 2. The facts, in brief, are that respondent had filed a suit for declaration that he has acquired right of easement by prescription qua the land of appellant comprised in khasra Nos. 157/1 and 158 Kita 2 measuring 0-10-97 Hectares, situate at Mohal Chelian, Mauza Mant, Tehsil Dharamshala, District Kangra vide jamabandi for the year 1984-85 for the discharge of natural water as well as other water from 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondent’s land and premises comprised in khasra Nos. 153 and 157 Kita 2, situate at Mohal Chelian, Mauza Mant, Tehsil Dharamshala vide jamabandi 1984-85 through a drain-cum-water channel located along the western boundary of the land of appellant along with pathway 90 cms. wide running along the edge of the said drain-cum-water channel connecting with the public path known as ‘Dari-Chelian-Sakoh path for the enjoyment of his tenement as per the site plan. It has also been prayed that above easement of path way and discharge of water are easements of necessity as well as natural easements by implied grant. The respondent has prayed consequential relief of permanent injunction against the appellant not to disturb the right of easement of respondent by blocking the flow of water and the path with mandatory injunction to restore the drain- cum-channel and path to its original shape was also prayed. 3. The further case of the respondent is that appellant had purchased the land comprised in Khasra Nos. 157/1 and 158 from one Hari Singh one month prior to the purchase of the land comprised in Khasra Nos. 153 & 157 by respondent from same Hari Singh in the year 1968. It is the case of the respondent that there are two sets of land adjacent to each other, the land of respondent is at higher level and the land of appellant is at lower level. The user of path and discharge of water in the drain-cum-channel has been claimed by way of prescription whereas the right to discharge the water has been additionally claimed as easement of necessity, but again in the plaint the respondent has claimed user of path and right to throw water in the drain-cum-channel on the basis of easement of necessity and implied grant. 3 4. The suit was contested by the appellant wherein preliminary objections of cause of action, necessary parties, estoppel, maintainability and valuation were taken. On merits, it has been admitted that the two sets of land are adjacent to each other. The land of the respondent is at higher level. The appellant had constructed two buildings on her land in the year 1970. It has been stated that the appellant had purchased the land in the year 1968. It has been denied that no water kuhl was in existence when the land was purchased by the parties. It has been denied that there was no channel in existence and the lands of the parties were never irrigated by kuhl. The appellant had constructed a boundary wall. The appellant has denied the site plan annexed with the plaint. The existence of the path has also been denied. The respondent has his own path but not through the land of the appellant. The respondent had never used the land of the appellant for passage. The respondent has constructed a latrine, septic tank, a bath room last year and he intends to throw the dirty water of his latrine, bath and kitchen and, therefore, he has filed the suit. It has been denied that the respondent has acquired any right of easement. The plea of implied grant raised by the respondent was also denied. The appellant has ultimately prayed for dismissal of the suit. The respondent has filed replication and reasserted his pleas in the written statement. 5. The learned Sub Judge dismissed the suit on 12.8.1998. In appeal the judgment, decree dated 12.8.1998 was set-aside and learned District Judge decreed the suit of the respondent on 24.2.1999. It was declared that the respondent has acquired right of easement by prescription for the discharge of water, natural as well 4 as artificial, from his land through a drain-cum-water channel as shown in Ex.P-1, as well as of a pathway 90 cms. wide along the edge of the drain-cum-water channel and that the above said easements of pathway and discharge of water are easements of necessity as well as natural easements by implied grant. The defendant has assailed the judgment, decree dated 24.2.1999 in the second appeal which has been admitted on following substantial questions of law:- 1. Whether the easementary rights (sic can) be claimed by a co- owner in respect of the land held by him in co-ownership with others? 2. Whether the plaintiff could claim the right to path over the land of the defendant by way of easement when the alternate path is in existence and is being used by him? 6. I have heard the learned counsel for the parties and have also gone through the record. Mr. Bhuvnesh Sharma, learned counsel for the appellant has submitted that the learned District Judge has erred in holding that the respondent has acquired right by way of easement to throw water from his land over the land of the appellant through a drain-cum-water channel. He has also submitted that similarly the learned District Judge has erred in holding that respondent has acquired right of easement over pathway 90 cms. wide. The learned District Judge has erred in holding that respondent has acquired easement of pathway and discharge of water by way of easement of necessity as well as natural easements by implied grant. The submission has been made that a co-owner cannot acquire easement over the property of another co-owner. The learned counsel for the respondent has supported the impugned judgment, decree. 5 7. The aforesaid two substantial questions of law are inter- connected, therefore, both are taken up together for consideration. The easement has been defined in Section 4 of the Indian Easements Act, 1882 (for short ‘Act’) which provides that an easement is a right which the owner or occupier of certain land possesses, such as, 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 dominant and servient heritages and owners have also been defined in Section 4. The Section 8 provides who may impose easements. According to Section 8, an easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. The illustration (c) of Section 8 further provides that a co-owner cannot, without the consent of other co-owners impose an easement on the land or on any part thereof. The respondent in plaint has pleaded that appellant had purchased the land one month prior to respondent from common vendor Hari Singh. It is admitted case of the respondent that both appellant and respondent have purchased land from common owner Hari Singh. 8. In Balikanta Doss Vs. Ram Tahal Dos 2 IC, 670, certain land was leased to the defendant and described in the pattah as half of land enclosed within certain boundaries. The other half of the land within the said boundaries is said to have been leased to the plaintiff’s predecessors. Subsequently the landlord brought ejectment suit against the plaintiff’s predecessors, and, thereafter, settled the land covered by that suit with the present plaintiff. The present plaintiff 6 sued for partition. The defendant pleaded that the land held by him was distinctively demarcated, and formed a separate holding. The parties went to trial on the issue whether the ‘chukani’ holdings of the plaintiff and defendant No.1 were separate or not. The Munsif finally concluded that the two holdings were not joint, but separate. The appeal accepted by the District Judge. He held that undivided shares in parcels of land cannot constitute distinct holdings if co-owners are in possession of different portions of a joint property by mutual arrangement a suit for partition is maintainable. The High Court in second appeal accepted the findings of fact recorded by Munsif and held that holdings of the parties were not undivided shares in parcels of land and they themselves were not co-owners. 9. The respondent in paragraphs 4 and 5 of the plaint has pleaded that he had purchased the land from Hari Singh and about one month prior to him, the appellant had also purchased land from Hari Singh. The land purchased by the respondent is located in Khasra Nos. 153, 157 total measuring 0-04-10 hectares whereas the land purchased by the appellant is comprised in khasra Nos. 157/1 and 158 total measuring 0-10-97 hectares. This stand of the respondent has not been specifically denied by the appellant in the written statement. In other words, the two sets of land of respondent and appellant are separate, distinct though purchased from common vendor Hari Singh. In view of principle laid down in Balikanta Doss (supra) the two holdings of appellant and respondent cannot be termed joint, rather the said holdings are separate. In these circumstances, there is no bar for respondent to acquire easementary right against appellant 7 regarding his holding. The substantial question of law No.1 is thus decided accordingly. 10. The learned District Judge has held that respondent has acquired right of easement by prescription for the discharge of water, natural as well as artificial from his land through a drain-cum-water channel as shown in Ex.P-1 as well as of a pathway 90 cms. wide along the edge of the drain-cum-water channel. It has been further held that the above said easements of pathway and discharge of water are easements of necessity as well as natural easements by implied grant. The availability of alternate path in a given situation can be a bar for easement of necessity but the findings in the present case that not only the respondent has proved his easement of necessity over the path but he has proved acquisition of easement by prescription and implied grant over path. Therefore, the availability of alternate path, if any, is no bar to respondent for acquiring the right over path by way of easement of prescription and implied grant. PW-1 Rattan Chand in his statement has stated that these days he is going through burial ground by covering additional 300 meters. He has not stated that there is a path available to him through burial ground, the compulsion to go through burial ground cannot be construed that he has a right of passage through burial ground. He has nowhere stated that alternative path as a matter of fact is available to him through burial ground. 11. DW-1 Laxmi Devi in her examination in chief has stated that plaintiff has his own passage but she has not stated that from which side the plaintiff has passage. She has not stated that plaintiff has passage through burial ground. She has not stated that plaintiff 8 has alternative path to his plot. The learned District Judge has rightly appreciated the material on record. The learned counsel for the appellant has failed to point out perversity in the impugned judgment, decree or misconstruction of evidence. In second appeal, the evidence cannot be re-appreciated, the substantial question of law No.2 is decided against the appellant. 12. No other point was urged. 13. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. April 26, 2010. (GR)