IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 614 of 2000. Date of decision: 21.5.2010. Salo ….. Appellant Vs. Sarnu …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anuj Nag, Advocate. For the Respondent : Nemo. Kuldip Singh, Judge (Oral). This appeal has been directed against the judgement, decree dated 3.3.2000 passed by learned Addl. District Judge (1), Kangra at Dharamshala in Civil Appeal No. 61-K/98 affirming the judgement and decree dated 18.7.1997 passed by learned Sub Judge Ist Class (1), Kangra in Civil Suit No. 176/1995. 2. The facts in brief are that appellant had filed a suit for declaration and permanent prohibitory injunction restraining the respondent from causing interference in any manner on the suit land comprised in khasra Nos. 227, 228 kitas -2, total measuring 0-3-49 hectares, situate at Mohal Nahlan, Mauza Bhanala, Tehsil and District Kangra. The case of the appellant is that he is owner in possession of the suit land but respondent is threatening to interfere on the suit land, therefore, the suit was filed. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 3. The suit was contested by the respondent and he took preliminary objections of cause of action, locus-standi, estoppel, limitation and valuation. He has claimed customary right of easement to use part of the suit land for passage to kuhal for irrigating his own land comprised in khasra Nos. 230, 231 and 233. He has denied that he is threatening to interfere in the ownership and possession of the appellant on the suit land. He claimed customary right of easement through the land of appellant for irrigating his own fields comprised in khasra Nos. 230, 231 and 233. 4. The respondent has raised counter claim against the appellant and prayed for decree of permanent prohibitory injunction restraining the appellant from causing any interference on the land of the respondent which is being irrigated through Kuhal in field Nos. 213, 214, 215 and 216. The appellant filed replication, wherein he denied the case set up by the respondent and reiterated his case. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has no right, title and interest over the suit land? OPP 2. Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD. 3. Whether the defendant has customary right of easement to use through the suit land to irrigate the land of defendant as alleged? OPD. 4. Relief. …3… 5. The issue No. 1 was answered partly in affirmative, whereas issues No. 2 and 3 were answered in affirmative. The suit of the appellant was dismissed and counter claim of the respondent was decreed on 18.7.1997 by the learned Sub Judge. The appellant filed appeal against the judgement, decree dated 18.7.1997, which has been dismissed by the learned Addl. District Judge on 3.3.2000. In these circumstances, second appeal has been filed, which has been admitted on the following substantial questions of law:- 1. Whether the right to use edges of each other fields for the purposes of irrigating is a customary easementary right? 2. Whether the findings of learned lower appellate court are vitiated on account of misreading and misconstruing the correct proposition of law? 6. I have heard Mr. Anuj Nag, learned counsel for the appellant and have gone through the record. None appeared on behalf of the respondent. The substantial questions of law No. 1 and 2 are interconnected, therefore, both of them are taken up together for disposal. The two courts have recorded a finding of fact that respondent has a right to use the edges of the fields of appellant for irrigating his own land. The learned lower appellate court has relied Rup Chand vs. Daulatu and others AIR 1992 H.P. 6 wherein it has been held that right of using the edges of each other’s fields for going to their respective fields by the agriculturists is a customary right of easement and not a right of easement which is to be acquired either by prescription or by necessity. …4… 7. The learned counsel for the appellant has submitted that in Rup Chand case, the right with respect to use of edges of the field was before the court and not right with respect to taking the water through kuhal through the land of other. It has been submitted on behalf of the appellant that the two courts below have not properly appreciated the law laid down in Rup Chand case (supra), nor the respondent has established his right to take water through kuhal through the land of the appellant. The two courts below have wrongly held that respondent has right to take water through the land of the appellant. 8. The submission made by the learned counsel for the appellant is noticed only to be rejected. In the counter claim the respondent has prayed for irrigation through kuhal in field Nos. 213, 214, 215 and 216, which is not the land of the appellant. The counter claim of the respondent is that he has right to irrigate his land comprised in khasra Nos. 230, 231 and 233 through kuhal in field Nos. 213, 214, 215 and 216. The further case of the respondent is that he is required to pass through the edges of the fields of appellant for irrigating his land. In view of counter claim of the respondent, it cannot be construed that the two courts below have declared the right of appellant to carry water through channel through the fields of appellant. The lower appellate court has held that respondent has customary right of easement to use the edges of the fields of appellant. The two courts below have rightly appreciated the material on record. The evidence cannot be re-appreciated in the second appeal. There is no perversity in the impugned judgement, decree. …5… The learned counsel for the appellant has failed to point out misconstruction and misinterpretation of evidence. No case for interference is made out. The substantial questions of law No. 1 and 2 are decided against the appellant. 9. No other point was urged. 10. As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. May 21, 2010. ( Kuldip Singh ), (Hem) Judge.