Himachal Pradesh High Court
Rup Chand vs Sh. Daulatu And Ors. on 18 December, 1990
Equivalent citations: AIR1992HP6
JUDGMENT Kamlesh Sharma, J.
1. This is a Regular Second Appeal under pre-amended Section 100, C.P.C. Challenging the decree and judgment dated 14-6-1979 of Additional District Judge, Mandi at Kullu, whereby the decree and judgment dated 13-12-1976 of Sub Judge, Kullu, was set aside and the suit of the appellant-plaintiff, Sh. Pekhu was decreed.
2. Sh. Pekhu had filed a civil suit against the respondents-defendants Sh. Rup Chand and others for declaration that he was owner in possession of the field comprised in Khasra No. 114 and had a right of way to the said field through Khasra Nos. 1153, 1157, 1142 and 1141 through the spots A B C as shown in the map field along with the suit. Sh. Rup Chand resisted the suit claiming himself ownef in possession of Khasra No. 1140. S/Sh. Niloo and Moti and Smt. Sawanri from whom Sh. Rup Chand had allegedly purchased the land comprised in Khasra No. 1141 filed a joint written statement supporting the claim of Sh. Pekhu. The trial court dismissed the suit holding that Sh. Pekhu had failed to prove his ownership on Khasra No. 1140 as well as his right to way as claimed by him. In appeal by Sh. Pekhu, the Additional District Judge, Mandi at Kullu, reversed the findings of the trial court and decreed the suit.
3. Sh. Moti Ram died during the pendency of the first appeal and his legal representatives are proforma respondents Nos. 4 and 5. Sh. Pekhu had died during the pendency of the appeal in this Court and his legal representative Smt. Daultu has been brought on record.
4. I have heard the learned counsel for the parties and gone through the record. Sh. Bhupinder Gupta, learned counsel for Sh. Rup Chand, has not challenged the findings of the first appellate court declaring Sh. Pekhu as owner of Khasra No. 1140. His precise challenge is that on the pleadings and evidence on record, the findings of the first appellate court that Sh. Pekhu has a right of way through the land of Sh. Rup Chand and others for agricultural purposes are not justified. According to him, the use of edges (mainds) between the adjoining fields of each other by the land owners/tenants in the villages can be presumed to be a permissive user only. In support of his contention, Sh. Gupta has relied upon Smt. Bailey v. Rama Shanker Lal, AIR 1975 All 461 and Vidya Sagar v. Ram Das, AIR 1976 All 415.
5. On the other hand, Sh. M. I,, Sharma, learned counsel for Sh. Pekhu, has urged that by the evidence on record, it is proved that Sh. Pekhu had a right of way through the land of Sh. Rup Chand and others by custom as well as usage. According to him such right of way falls Under Section 18 of the Indian Easements Act, 1882. I have found that the contention of Mr. Sharma has a substance. Sh. Rup Chand and others in their written statement as well as in their evidence, have not countered the claim of Sh. Pekhu that he had a right to use the edges (mainds) of their fields by way of custom and usage for going to his field comprised in Khasra No. 1140. Their whole thrust was to prove their long possession over Khasra No. 1140 and thereby also their ownership. On the other hand, the witnesses of Sh. Pekhu have staled in one breath that they had been seeing Sh. Pekhu using the edges (mainds) of the fields of Sh. Rup Chand and others for going to his fields comprised in Khasra No. 1140 since the age of their discretion. Sh. Naulu, respondent-defendant No. 2, had also come in the witness box as P.W. 1 and clearly admitted that Sh. Pekhu had been using the edges (mainds) of the field comprised in Khasra No. 1141 before and after this field was transferred to Sh. Rup Chand till he was restrained by Sh. Rup Chand. He and other witnesses have also stated that there is no other way to Khasra No. 1140 except through the edges (mainds) of Khasra No. 1141. The customary right of using the edges (mainds) of each other's fields by the agriculturists in the villages has also been proved by Sh. Trikhu (P.W.3), Ved Ram (D.W. 1) and Sh. Pekhu.
6. Therefore, I am convinced that the first appellate court has rightly held that Sh. Pekhu had a right of way to his field comprised in Khasra No. 1140 through the adjoining field of Sh. Rup Chand comprised in Khasra No. 1141.
7. Sh. Bhupender Gupta, learned counsel for Sh. Rup Chand, has relied upon AIR 1955 Mysore 62, Narasappa v. Nanjappa and others to impress upon this Court that the use of edges (mainds) of each others' fields cannot be termed as customary easement. I do not agree with this submission. In my opinion, the right of using the edges (mainds) of each other's fields for going to their respective fields by the agriculturists is a customary right of easement and not aright of easement which is to be acquired either by prescription or by necessity. For holding this, I am supported by the Rajasthan High Court in Chandgi Ram v. Ramji Lal, AIR 1963 Raj 161, in which it was held that (at page f 62) :--
"No such exception was necessary either. For in this country as fields are generally of small size, are surrounded by fields of other tenants and are not connected by private or public pathways, there is a customary right vested in a tenant of every field-whether or not his tenancy is heritable and alienable to have access to it for agricultural purposes and this right is available to him, to members of his family, his hired labourers and his partners in cultivation. These persons can go to the field and return from it on foot and can take unyoked bullocks and ploughs with them. This right can only be exercised in accordance with the principles underlying Section 22 of the Act namely in the mode which is least onerous to other tenants of the locality.
Without the existence of such a right it will not be possible for most tenant to cultivate their fields. It is this necessity that has given birth to the custom. Generally, it is possible for tenants to go to their fields along the 'mendhs" of other fields. Where however the 'mendhs' are high and narrow passage has to be provided by other tenants through intervening fields."
The cases of Smt. Bailey v. Rama Shanker Lal, AIR 1975 All 461 and Vidya Sagar v. Ram Dass, AIR 1976 All 415, are distinguishable on the ground that Section 18 of the Indian Easements Act was not considered in them.
8. In the result, 1 affirm the decree and judgment dated 14-6-1979 of Additional District Judge, Mandi at Kullu, and dismiss the appeal with costs.