IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A No. 206 of 1999 Reserved on 23.3.2010 Date of decision 27.4.2010 Narain Dass & others ....Appellants. Versus Sant Ram & others ....Respondents. Hon'ble Mr. Justice Kuldip Singh. Whether approved for reporting?No For the appellants: Mr. Vinay Thakur, Advocate. For the respondents: Mr.G.D Verma, Senior Advocate with Mr. B.C Verma, Advocate. -------------------------------------------------------------------------------- Kuldip Singh, Judge. The appellants were defendants and they have come in appeal against common judgment, decree dated 9.4.1999, passed by learned District Judge, Solan in Civil Appeal No. 79-S/13 of 1997 and in Cross-objections No. 3-S/11 of 1998, affirming judgment, decree dated 25.9.1997 passed by learned Sub Judge Ist Class, Arki in Civil Suit No. 137/1 of 1993. The respondents No. 1 to 3 were the plaintiffs, the respondents No. 4 and 5 were the proforma defendants. The parties in the judgment are referred 'plaintiffs', 'defendants' and 'proforma defendants'. 2. The facts in brief are that plaintiffs had filed a suit for declaration that they have legal right, easementary right, customary right to use path to their houses shown in Tatima as Khasra No. 114/4, 114/3 and 114/2 which ________________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 passes through the houses and buildings of defendants marked as Khasra No. 114/5 and 114/6 and in front of houses of defendants marked as Khasra No. 114/5. The plaintiffs have also prayed consequential relief of permanent prohibitory injunction restraining the defendants from obstructing the path in any manner and from raising construction over the same. 3. The suit was contested by defendants. They have denied existence of any passage as claimed by plaintiffs. They have also denied any easementary right of plaintiffs over the land of the defendants. They have taken the stand that they have already constructed pillars over the alleged disputed path. The plaintiffs filed replication and denied the stand of the defendants. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the houses of the plaintiffs and proforma defendants exist in Khasra No. 114 which is abadi deh, as alleged. ...OPP 2. Whether there exists a path as shown with black ink in the tatima annexed with the plaint which is being used by the plaintiffs and proforma defendants? ...OPP 3. If issue No. 2 is proved in affirmative, whether the plaintiffs and proforma defendants have a right to use the disputed path by way of easement of prescription, as alleged? ...OPP 4. Whether the plaintiffs and proforma defendants are entitled to use the disputed path by way of customary right in the alternative, as alleged? ...OPP 5. Whether the suit is not maintainable in the present form?...OPD 6. Whether the plaintiffs have a cause of action? ...OPP 7. Whether the suit is bad for the better particulars, if so, its effect? ..OPD 8. Whether the plaintiffs are estopped to file the present suit by their act and conduct? ...OPD 9. Whether the suit is bad for want of necessary parties? ....OPD 10. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? ...OPD 11. Whether the plaintiffs have a legal right to use the passage as alleged? ...OPP 12. Relief. 3 5. The issues No. 1 to 4 & 6 were answered in affirmative, issues No. 5, 7 to 11 were answered in negative by learned Sub Judge and decreed the suit on 25.9.1997. The learned Sub Judge directed defendants No. 1 to 6 to demolish the structure which existed in between Khasra Nos. 114/5 and 114/6 shown in Tatima Ext. P.W. 6/A and in photographs Ext. D.1 and Ext. P.W. 1/F. The defendants No. 1 to 6 were restrained from obstructing the path and raising construction on path shown in Tatima Ext. P.W. 6/A. Narain Dass, defendant filed Civil Appeal No. 79-5/13 of 1997 against the decision dated 25.9.1997. In the appeal, Sant Ram, Kirpa Ram, Vijai Kumar, Ajudhia and Kalawati had filed cross-objections No. 3-5/11 of 1998. The appeal and cross-objections were decided by learned District Judge by a common judgment dated 9.4.1999 and dismissed the appeal as well as cross-objections. Narain Dass etc. have filed the Second Appeal, which has been admitted on following substantial questions of law:- 1. Whether prescriptive easementary rights and customary rights can co-exist? 2. Whether a co-owner can claim an easementary right against a co-owner without the joint holding having been partitioned? 6. I have heard the learned Counsel for the parties and have also gone through the record. On behalf of the appellants, it has been submitted that prescriptive easement and customary right cannot co-exist together. A co-owner cannot claim easement against another co-owner on the joint holding. The Courts below have committed an error of law in passing a decree of mandatory injunction, even though; there was no prayer to this effect in the plaint. The learned Senior Advocate appearing on behalf of the 4 respondents has supported the impugned judgment, decree. 7. The aforesaid substantial questions of law are inter-connected, therefore, both of them are being taken up together for consideration. The Section 15 of the Indian Easement Act, 1882 (for short 'Act') provides how prescriptive easement can be acquired, similarly acquisition of customary easement is provided in Section 18 of the Act. The prescriptive easement is different from customary easement. A customary easement, no doubt, is an easement. It is founded on custom of the locality. The customary easement is available to determinate persons for beneficial enjoyment of land belonging to or occupied by such persons. A customary easement can be claimed by dominant tenement. On the contrary, customary right is a public right and arises out of custom of the locality. It is not a private right dependant upon grant, dedication or prescription. The Section 2(b) of the Act provides that the Act does not derogate from any customary or other right in or over immovable property which Government, public or any person may possess irrespective of other immovable property. 8. The plaintiffs have claimed easement of prescription and in the alternative, customary right. The learned Sub Judge has recorded a finding that plaintiffs have proved ingredients of 'customary easement'. The learned Sub Judge has not returned the finding that the plaintiffs have proved ingredients of 'customary right'. It is the case of the plaintiffs in the plaint that plaintiffs and proforma defendants own and possess houses and buildings in Abadi Deh. The defendants No. 1 to 6 also own and possess houses and buildings in Abadi Deh. There is a public main path over khasra No.25 and approach path goes from this main path to the houses of defendants marked as khasra No.114/5 and 114/6. In other words, the case of the plaintiffs is 5 that parties have their houses and buildings on Abadi Deh and passage is also on the Abadi Deh. The plaintiffs by pleading this have put themselves, proforma defendants and defendants at equal level so far land under path is concerned . The position of plaintiffs, proforma defendants and defendants over Abadi Deh, as per the case of the plaintiffs, even if it is not that of co- owners, but is analogous to co-owners. 9. The Section 8 of the Act provides that an easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage of which the liability is to be imposed. The illustration (c) to Section 8 makes it clear that a co-owner without the consent of other co-owners cannot impose an easement on the land or any part thereof. It is not the case of the plaintiffs that over Abadi Deh, some have superior rights and others inferior rights. On the other hand, it has not been disputed that over Abadi Deh in the village, the villagers have equal rights. This being the position, the plaintiffs cannot acquire easement against co-owners or persons analogous to co-owners over or in the Abadi Deh, as in the present case. The Courts below have not recorded a specific finding that plaintiffs have proved customary right. The two Courts below have not properly appreciated the legal position with respect to acquisition of easement of prescription by plaintiffs over Abadi Deh against defendants. The impugned judgment and decree are liable to be set aside. The substantial question of law No. 1 is decided accordingly and substantial question of law No. 2 is decided in favour of the appellants. 10. The case can be viewed from yet another angle. The plaintiffs in the plaint have not prayed mandatory injunction but the learned Sub Judge in the judgment, decree dated 25.5.1997 has directed defendants No. 1 to 6 to 6 demolish the structure as shown in Tatima Ext. P.W. 6/A and photographs Ext. D.1 and Ext. P.W. 1/F. This has been upheld by the learned District Judge. The relief granted by the two Courts below is beyond the prayer made by the plaintiffs, this has caused prejudice to the defendants. They were not called upon to meet the case of the mandatory injunction. On this ground also, the impugned judgment, decree is not sustainable, so far mandatory injunction is concerned. 11. No other point was urged. 12. The result of the above discussion, appeal is allowed, impugned judgment, decree are set aside and suit of the plaintiffs is dismissed, no costs. (Kuldip Singh), Judge. April 27, 2010. (H.L/sks)