Patna High Court
Parbhawati Devi And Ors. vs Mahendra Narain Singh And Ors. on 12 August, 1980
Equivalent citations: AIR1981PAT133, AIR 1981 PATNA 133, 1981 BLJR 523, (1981) BLJ 465, (1980) PAT LJR 542
JUDGMENT Medini Prasad Singh, J.
1. Defendant first party an-ex-military personnel is the appellant. He died. His heirs have been substituted in his place. The suit was filed under Order 1 Rule 8 of the Code of Civil Procedure in the year 1968. It was for a declaration that plot no. 1014 of khala no. 256 of village Rampur Police station Lakhissarai in the distri ct of Monghyr was Gair Mazrua Am Houi (a water reservoir) belonged to the villagers who were raiyats and they had easement to take water from that and to irrigate their lands and that the settlement of 5 acres out of it made with the appellants by the Land Reforms Deputy Collector was illegal, void and without jurisdiction. It was also prayed that the defendants be permanently restrained from going upon the land. The case of the plaintiff was that water was stored in survey plot Nos. 924 and 1014 which made one compact and from which water was used as Ahars for irrigating their lands from time immemorial, although in the fard-ab-pasi and in the Kesra-ab-pasi only survey plot no. 924 was mentioned as representing the whole Ahar. It was also pleaded that the suit plot 1014 did not vest in the State of Bihar. It may be pointed out that plot no. 924 measures 13.26 acres and the suit plot 1014 measures 6.75 acres. Plot no. 924 is not in dispute. The learned subordinate Judge, Monghyr decreed the suit holding that the suit plot No. 1014 and plot No. 924 were one compact block which was used as Ahar and water was being used by the villagers for irrigation purposes, that the settlement made by the State of Bihar with defendant 1st party was valid, and, that the suit plot 1014 vested in the State of Bihar. The lower appellate court affirmed the findings of the trial court with some modification. The modification was that the plaintiffs could not be granted a decree for confirmation of possession because they had acquired easement subject to the proprietary right of the State of Bihar.
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 main characteristics of easement are:
(i) There must be dominant and a ser-vient tenement:
(ii) The easement must accomodate 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 or 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 ser-vient 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 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 ease-ment 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 land 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 refpr 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 pleaded 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 iudgment 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 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 Houi 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 of that land, to do and con-
tinue 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) * * * *
(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 Ferick 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, but 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. v. 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 Palaniandi Tevan v. 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." The same view was reiterated by that learned Judge in Sabasha v.
Baba 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.
3. The lower appellate court at some places in its judgment says that some portion of the two plots 924 and 1014 were filled up in natural course and were fit for cultivation up to the year 1967 but from paragraph 15 of its judgment it appears that major portion of plot No. 1014 had been filled up and it had lost utility as source of irrigation. The court of appeal below has referred to Ext. 7 the report of the Block Development Officer. The report was that the suit plot 1014 which was a Houj and lost its utility as a source of irrigation since the canal irrigation in the area came into operation. The further report was that a major por-tion of the Houi had lost its character and it became cultivable. This report was not rejected by the court but its importance was minimised by stating that the report showed only a portion of the plot cultivable. The lower appellate court conveniently omitted to use the word 'major' because the report was that major portion had lost its character and had become cultivable. The lower appellate court has not given any finding whether the disputed portion of the plot 1014 was culturable portion or not. I have said above that the area of plot 1014 was 6.76 acres. It cannot be disputed that in course of time the character of land may change. In the written statement what was said in paragraph is that a Govt. Amin was deputed to assure the cultivable portion of plot No. 1014 and he found the land in suit having an area of 5 acres cultivated and cultivable and divided into several clocks (chacks?). There is noth-
ing reliable on record to show that this assertion of the defendants was wrong. Ext. B/1 is the report of the Amin. Ext C/1 which is one of the entries in the khesra for the year 1967-68 (vide serial Nos. 1192 to 1194) shows that an area of only 1 acre of the suit plot 1014 was shown as Jalagar (water reservoir). Tha lower appellate court says that the character of the plots as Jalagar retained even up to plot had been silted and filled up by the year 1967. The pleader commissioner (P. W. 13) also found that a portion of the plot had been silted and filled up. The lower appellate court has itself accepted the cultivation. There is evidence on record that the lands of the villagers were being irrigated from Kul river canal from the year 1963 and from some other sources also. This fact was accepted by the court below. The lower appellate court says:
"The villagers may have right to irrigate from various Ahars and if it is proved as is proved from the evidence on record, that the villagers have been irrigating their lands from disputed Houi as well, then the right of easement acquired by the villagers for irrigation of their lands by these two plots cannot cease. There is evidence that portions of survey plots 924 and 1014 are under cultivation and the defendant appellant introduced in evidence certain documents to show that portion of these plots got irrigation facility from other means and not from the water of these two plots. That may be so, but if the villagers acquired right of easement to irrigate from these two plots, then the fact that they irrigated their lands from other sources also, would not take away their right of irrigation from two plots".
It is clear from the above that the villagers had other sources of irrigation and so far as the suit plot is concerned its major portion had been filled up and was used for cultivation purposes and it had lost its utility as a source of irrigation. On the findings of both the courts below the suit land vested in the State of Bihar, and therefore, the State had right to settle the land with the appellant. The lower appellate court said that the State did not file an appeal before it against the finding of the subordinate Judge to effect that the State was not competent to settle the land. In my opinion. Mr. K. D. Chatterji rightly pointed out that even if the State did not file an appeal the lower appellate court could under the provisions of Order 4 (41)? Rule 4 read with Rule 33 vary the decree in favour of the State. It may be pointed out that the State has appeared before this court and it has supported the appellants' case.
5. On a consideration of the submissions raised by the parties in this case I am of the opinion, no relief can be granted to the plaintiffs. The appeal is, accordingly allowed, judgments and decrees of both the courts below are set aside and the suit is dismissed. No costs.