Patna High Court
Raj Nandan Singh And Anr. vs Ram Kishun Lohar And Ors. on 5 August, 1957
Equivalent citations: AIR1958PAT571, AIR 1958 PATNA 571
JUDGMENT Kanhaiya Singh, J.
1. This is an appeal by the plaintiffs from a judgment and decree of the Additional Subordinate Judge, Chapra, dated 30th November, 1951, affirming the decision of the Munsif of the same place dated 23rd December, 1949.
2. The suit related to plot 319 measuring 8 kathas 17 dhurs situate in mauza Rusi. In the re-cord-of-rights this plot has been recorded as ghair-mazrua malik land. To the immediate west of this plot are situate two plots 320 and 321, north to south, which constitute the Sahan of the plaintiffs, and to the adjacent west of this Sahan lies their residential house. I may point out that while the residential house of the plaintiffs is situate in mauza Mairwa the disputed plot along with plots 320 and 321 falls in mauza Rusi.
The plaintiffs claimed title to disputed plot 819 by virtue of a settlement from the landlords. They alleged that they obtained settlement of half of this plot in 1330 fasli (1923) and of the remaining half in 1355 fasli (1948) and obtained possession of the land soon after the settlement. The plaintiffs' case further was that subsequent to the settlement the major portion of the disputed plot was brought under cultivation and mustard and peas were grown thereon and that they also put up a Bhusaul on a portion of the land and stored cow-dung in the other portion. The defendants first party interfered with their possession on 26-11-1948 by forcibly uprooting the mustard and peas and converting that portion into a Khalihan for stacking bundles of paddy. Hence this suit for possession with mesne profits after establishment of their title thereto.
3. The main contest was between the plaintiffs and defendants 1 to 7. Out of the remaining defendants, some supported the plaintiffs and some the contesting defendants. The contesting defendants (hereinafter referred to as the defendants) denied both the title and possession of the plaintiffs and alleged that the entire settlement was invalid and illegal because plot 319 was ghair-mazrua am (public property) and not khas property of the maliks.
They denied further that the plaintiffs had got any Bhusaul upon the disputed land and asserted that defendant 1 had constructed mud-built Berhi for storing chaff and that defendants 1, 2 and 6 and Lachhi Ram had also shifted their bathan (cowshed) to the disputed land, because of heavy rains, and had also kept cowdung there. It was further alleged that defendant 1 had planted brinjal and Ramtoroi. Their main defence, however, was a defence of acquisition of customary right to hold Khalihan on the disputed land.
In the written statement this right was asserted in the following manner. The disputed land had been in possession of these defendants and Satnarain Thakur (respondent 14), Bindeshwari Thakur (respondent 12), Sohawan Thakur (respondent 11), Dukhharan Kohar (respondent 17), Lachmi Ram Mahto (respondent 18) and their ancestors from time immemorial, which has been used as Khalihan for keeping paddy, rabbi and maize crops and no obstruction was ever made on behalf of the proprietors.
The aforesaid tenants with their title and without obstruction continued to keep their khalihan to the knowledge and information of the proprietors, on account of which these defendants and also Bindeshwari Thakur and others had already acquired right of easement and customary right therein. The proprietors or anybody have got no right to dispossess them. These defendants have also acquired absolute title according to custom.
4. The learned Munsif framed as many as eight issues, two of which only may be reproduced below :
"5. Have the defendants acquired any customary right of using the disputed land as a common husking ground?
6. Have the disputed lands been settled with the plaintiffs by the landlords?
Is so, is the settlement by the maliks in favour of the plaintiffs genuine and valid and have the plaintiffs acquired any title over the disputed land by virtue of the said settlement and had they ever been in possession of the disputed land?"
The learned Munsif held that the disputed plot 319 was not ghairmazrua am but ghairmazrua malik land & that the plaintiffs had acquired it by virtue of two settlements from the landlords as alleged by them and that the settlements were legal and valid. In other words, he held that the plaintiffs had acquired valid title to the disputed land. But, in his opinion, thin exclusive right of the plaintiffs to own and possess the disputed land was subject to the right of easement which the defendants first party had acquired therein.
On the question of easement, it will appear that the defendants had made out a case of customary right (see the issues above), but it appears that before him the defendants gave up their case of customary right and admitted that they had failed to prove this right. Apart from this admission there was, in his opinion, no case of customary right even on merits. The defendants had adduced no evidence to prove this customary right beyond the entry in the survey record-of-rights to the effect that the raiyats of the village maintained their khalihan on this plot.
The learned Munsif, however, found that their failure to prove the customary right did not affect their right to hold Khalihan thereon, because, in his opinion, this light of easement the defendants had acquired by prescription. On the question as to who has this right to hold the Khalihan, the learned Munsif held against the pleadings and against the survey record-of-rights and only six of the defendants possessed this right, namely, Ram Kishun Lohar (respondent 1), Muni Lal Lohar (respondent 2), Sriram Kurmi (respondent 4), Jagdeo Mahto, whose son is respondent 8, Abdula Sain (respondent 10) and Sohawan Thakur (respondent 11).
Even this right did not extend to the entire disputed plot. The learned Munsif held that the plaintiffs were in exclusive possession of 1 1/2 kathas out of the disputed plot which lies adjacent to their house to the exclusion of the defendants and no right of easement had been exercised over this portion for the statutory period of 20 years. He, therefore, gave the aforesaid defendants a right to hold the Khalihan on the remaining portion only. Again, this right was limited to certain periods in the year.
The learned Munsif found that the defendants had right to hold Khalihan in respect of both paddy and rabbis, and since in his opinion (there being no definite evidence on this point), ordinarily, paddy is harvested and thrashed between Kartik and Pous and rabbi between Chait and Jeth, he directed that the plaintiffs would keep the disputed land parti (?) for at least 2 1/2 months from 1st Kartik to 15th Pous and again for 2 1/2 months from 15th Chait to 30th Jeth each year. Subject to this right the plaintiffs were allowed to possess the disputed land and to use it in whatever manner they liked. The suit was accordingly decreed in part.
5. The defendants did not prefer any appeal from the decree. The plaintiffs alone took an appeal to the District Judge, and there was no cross-objection on behalf of the defendants. The learned Subordinate Judge, who disposed of the appeal, affirmed all the findings of the learned Munsif and maintained the decree. But, in his opinion, the right which the defendants had acquired to hold Khalihan was not an easement by prescription, but a right arising out of long user from time immemorial on the principle of lost grant. Therefore, the learned Munsif and the learned Subordinate Judge were not agreed on the nature of the right the defendant had; in other respects they were in agreement.
6. On behalf of the appellants, Mr. Jaleshwar Prasad has raised the contention that the decrees of both the Courts are against the pleadings of the parties and against the defence of the defendants and cannot, therefore, be sustained. He pointed out that the defendants had made out a case of customary right in the written statement and the issue that was framed was with respect to the acquisition by them of this customary right. The learned Munsif, however, he pointed out, ignored the issue & made out a case of easement by prescription.
He further urged that on appeal the learned Subordinate Judge made out an entirely different case of easement by immemorial user on the strength of lost grant. His contention is that if the defendants sought to rely upon a presumption of lost grant, it was incumbent upon them to plead clearly and specifically the origin of the right claimed to have been in a lost grant. He urged that when no such case was made out in the written statement, it was not for the Courts below to presume suo motu the origin of a right in the lost grant.
In my opinion, this contention is well-founded. It is quite manifest that the defence taken by the defendants has not been consistent. The written statement, the oral evidence and the case as presented before the Court all were at variance, and they have been shifting their position from time to time. In the written statement they pleaded customary right by virtue of long user and both parties joined issue on this question alone. There was no issue framed as to the acquisition of easement by virtue of lost grant.
When after the close of the evidence the defendants found that the evidence fell short of establishing customary right, they changed their position and claimed easement by prescription which the Court of first instance upheld. In the appellate Court it appears that when they were confronted with the argument that an easement by prescription under the Limitation Act cannot arise between the landlord and tenant, they again shifted their ground and urged that since they had used this right to hold Khalihan from time immemorial, this right must be presumed to have a legal origin. The appellate Court found that the right of easement by prescription had not been established and could not arise because of the relationship between the parties, and the learned Munsif, in his opinion, was wrong in this respect. He came to another conclusion altogether and upheld the rights claimed by the defendants on the principal of lost grant. In my opinion, it was not open to the Courts below to make out a case for the defendants which was not specifically pleaded and on which no evidence was adduced. Easementary right, customary right and easement on the ground of lost grant are all fundamentally distinct. In the case of Gopal Krishna Sil v. Abdul Samad Chaudhuri, AIR 1921 Cal 569 (A) their Lordships of the Calcutta High Court observed as follows:
"But it is indispensable that when a customary right is claimed, it should be specifically pleaded; all the essential requisites to its validity and binding effect must be averred and the custom so pleaded must when put in issue be proved as laid. When the plaintiff sets up a prescriptive right, he cannot in fairness to the defendant be allowed to succeed on the basis of a customary right. The two are fundamentally distinct, for as has been well said, custom differs from prescription in the fact that prescription is the making of a right while custom is the making of a law."
Although in that case there was a question of customary right, the principles laid down therein applied to the present case also. In Kirpa Singh v. Nabi Baksh, AIR 1S32 Lah 256 (B), their Lordships observed as follows :
"A perusal of the judgments of the lower Courts in this case, however, shows that neither the plea of customary right nor that of implied dedication from long user was set up by the defendant; and he cannot be allowed to make out a new case in second appeal."
On this ground alone, the defendants cannot succeed on the ground of easement through lost grant, because no such plea was taken in their written statement.
7. On the merits it will appear that the evidence did not warrant the raising of a presumption of lost grant. In order to succeed on the strength of the presumption of lost grant, it must be established (1) that the right has been enjoyed continuously for a long number of years; (2) that the exercise of this right was as of right openly and peaceably; and (3) that it was reasonable and there was nothing inherently wrong in it. The onus to establish the ingredients which raise a presumption of lost grant lies on the person who claims it.
The evidence adduced by the defendants in this case is not adequate in law to establish these elements. As a matter of fact, neither in the written statement nor in the evidence the defendants asserted that they enjoyed this right to hole Khalihan 'as of right'. If it was not as of right in other words, if it was only with the leave and license of the owner, namely, the landlords and their successors, then the defendants cannot be said to have acquired any such right. Apart from that it is not shown that this right had been exercises from time immemorial. In fact, the very beginning of this right is the survey record-of-rights, and the evidence does rot take us beyond that period Therefore, it cannot be said that this right had been enjoyed for such a long number of years as to raise a presumption that it had a legal origin.
8. Again, no question of easement arises in this case. 'Easement' has been defined by the Indian Easements Act as follows :
"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 owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner."
'Easement', therefore, postulates the existence of a dominant tenement and a servient tenement. This right is exercised for the beneficial enjoyment of the dominant heritage. Now, in this case the rights which the defendants are claiming are not the rights for the beneficial enjoyment of any dominant heritage, but purely personal rights. The defendants do not allege that there is any dominant tenement to which this right of easement is appurtenant. A customary right no doubt exists, independent of any dominant heritage and is vested in a defined class or community of a particular locality, as distinguished from individuals for their sole benefit; but this right the defendants gave up altogether. It follows that there is no right of easement in such a case.
9. Again, if it is an easement at all, the question being between the defendants and their landlords and their successors, there is, as laid down in the case of Krishna Chandra Mandal v. Ram Sahay Katari, AIR 1917 Pat 530 (C), no easement between landlord and tenant. Taking any view of the matter, the defendants have failed to establish any right in the disputed land in derogation of the rights of its owners. Therefore, the decrees of the Courts below giving the defendants the right to hold Khalihan on the disputed land must be set aside. The plaintiffs will be entitled to a declaration of their title to and recovery of possession of the disputed land. The decrees of the Courts below will be varied accordingly.
10. The defendants have filed cross-objection disputing the validity of the settlements with the plaintiffs and asserting their unfettered right to hold Khalihan. They had not preferred any appeal or cross-objection against the decision of the learned Munsif and thus his finding that the settlements were valid and conferred good title on the plaintiffs became final. Any way, this question is now concluded by findings of fact and was also not seriously pressed. The second ground also falls in view of the findings above. There is, therefore, no merit in the cross-objection.
11. In the result, the appeal is allowed with costs, as directed above. The cross-objection is also dismissed but without costs.