Himachal Pradesh High Court
Smt. Kamla Devi vs Shri Uttam Singh on 20 June, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.241 of 2004.
Judgment reserved on: 15th June, 2015.
Date of Decision: 20th June, 2015.
_______________________________________________________
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Smt. Kamla Devi. ..Appellant.
Versus
Shri Uttam Singh ..Respondent.
Coram
Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
Whether approved for reporting1? No. For the appellant: Mr. Vivek Singh Thakur, Advocate.
For the respondent: Mr. K.D. Sood, Senior Advocate, with Ms. Ranjana Chauhan, Advocate.
____________________________________________________ DHARAM CHAND CHAUDHARY, J.
Defendant is in second appeal before this Court. She is aggrieved by the judgment and decree passed by learned District Judge, Bilaspur, on 6th May, 2004, in Civil Appeal No.1 of 1997, whereby the judgment and decree passed by learned Senior Sub Judge, Bilaspur, in Case No.140-1 of 1993, on 29th November, 1996, has been affirmed and the appeal dismissed.
Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -2-2. The controversy lies in a narrow compass, as the dispute is qua the path the appellant/defendant using to have access to her adjoining land for cultivation .
purposes and other allied agricultural pursuits. The parties to the suit are none else, but in close relations, being brother-in-law (Devar) and sister-in-law (Bhabhi).
3. The respondent/plaintiff, admittedly, is the owner-in-possession of land entered in Khewat No.63 min, Khatauni No.72 min, bearing Khasra No.305 and 307, measuring 5-10 bighas, situate in village Salnoo, Tehsil Sadar, District Bilaspur. The complaint is that there exists no path over the suit land bearing Khasra No.305.
The appellant/defendant allegedly using the said land as path to have access to the land belonging to her. He desisted such acts and conduct attributed to defendant, but of no avail and to the contrary she is continuously using the suit land as path and causing damage to the crops, the plaintiff sown therein. She allegedly used to throw water on the land of the plaintiff.
Hence he filed the suit for decree of permanent prohibitory injunction restraining the defendant from ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -3- creating new path over the suit land and destroying the crops sown and standing thereon.
4. The response of the defendant, as disclosed .
from the written statement in a nutshell, is that there exists village path over the suit land and the same is being used by her and other villagers for the last more than 20 years by way of customary easement, as according to her, custom to use such path in existence on the boundary of Khasra No.305 to have access to the adjoining land is old, continuous, peaceful, reasonable, certain and compulsory. Such path is allegedly shown in red-dotted line in the Tatima on record. Thus, there is no question of causing any interference by her over the suit land and rather she and other family members are enjoying the path in question passing through the boundary of Khasra No.305 to have access to their adjoining land. As per her further case, there is no other path available to her to have access to her land. A frivolous suit allegedly has been filed against her because she allegedly is enjoying the path in existence over Khasra No.305 as a right of customary easement for the last more than 20 years, continuously and without ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -4- any interruption. It has been reiterated that the villagers by way of customary rights use the adjoining land to have access to their land and such rights are old. The .
allegations that she has been throwing water over the suit land have also been denied, being wrong.
5. On the basis of the pleadings of the parties, learned trial Judge has framed the following issues.
1. Whether the plaintiff is entitled to the permanent injunction as prayed for?
OPP.
2. Whether the defendant has been in the user of the path from the boundary of Khasra No.305 as of right and that this user has ripened into customary easement as of right?
OPD.
3. Relief.
6. The plaintiff in turn has himself stepped into the witness-box as PW-1 and while supporting the case he set out in the plaint, has also placed reliance upon the copy of Jamabandi for the 1988-89, Ext.PA, copy of Khasra Girdawari for the period 15th November, 1989 to 11th March, 1990, 9th August, 1990 to 30th March, 1991, 26th October, 1991 to 16th March, 1992 and 2nd April, 1992 ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -5- to 27th March, 1993, Ext.PB and copy of Aks Shajra Kistwar, Ext.PC.
7. Defendant, on the other hand, has .
examined Shri Onkar Chand, Patwari, Kuddi (Delag), Tehsil Sadar, District Bilaspur (DW-2), who has produced the Jamabandi, Khasra Girdawari and Latha, Shri Baldev Singh, Kanungo, Jhandutta, the then Patwari, Patwar Circle, Delag (DW-3) to prove the Tatima Ext.D-1, Shri Sohan Singh, the then Pradhan, Gram Panchayat, Nichali Batehad, District Bilaspur (DW-4), Shri Kulwant Singh (DW-5) and Shri Duni Chand (DW-6), to prove the compromise Ext.DW-4/A arrived at between the parties at a stage when the defendant was obstructed by the plaintiff to use the path in question and it is on her request, they visited the spot and settled the controversy between the parties. She herself has stepped into the witness-box as DW-1.
8. Learned trial Judge on appreciation of the evidence and also applying the provisions contained under Section 15 of the Indian Easements Act, 1882 (in short 'the Act'), has arrived at a conclusion that the existence of path over the suit land bearing Khasra ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -6- No.305 is not proved nor the defendant is entitled to claim the path by way of easement through the suit land and as a consequence thereof decreed the suit .
restraining thereby the defendant from using the suit land bearing Khasra No.305 as path to have access to the adjoining land belonging to her.
9. Though, the defendant did challenge the judgment and decree passed by learned trial Court in the lower appellate Court, however, unsuccessfully because the appeal she preferred has been dismissed vide judgment and decree under challenge in the present appeal.
10. The challenge to the judgment and decree is mainly on the grounds that despite of there being ample evidence on record showing the existence of path through the edge (Maind) of the field bearing Khasra No.305 belonging to the plaintiff, the suit has been erroneously decreed. The factum of there exists small-small fields not connected by private or public path and rather by way of customary easement the farmers use the adjoining lands of each other's to have access to their respective fields, has not been taken into ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -7- consideration. The findings that there exists an alternative path for the defendant to have access to her adjoining land bearing Khasra No.304 are stated to be .
without any substance because according to the defendant, other path in existence over Khasra Nos.297, 298, 303, 306 and 308 no where touches the land belonging to her in any side. Also that respondent/plaintiff also admits the fact that path to her land bearing Khasra No.304 passes through his field and that another path not passes through Khasra No.304.
Such evidence, as has come on record by way of his own testimony, is stated to be erroneously ignored. The evidence that Kadimi paths are not being entered in the revenue record and also in Girdawari, has also not been considered. The findings to the effect that she was allowed to use the path by the plaintiff are against the evidence available on record because according to her, the path over the suit land bearing Khasra No.305 is old one and created with the consent of the plaintiff.
There being ample evidence cogent and reliable to show that she was using the path through the edge (Maind) of the field of the plaintiff, the suit should have ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -8- been dismissed because there was no reason of causing any interference by her thereon and rather using the path in question as a matter of customary right. It has .
also been pointed out that both Courts below have failed to differentiate between the prescriptive easement and customary right. The provisions contained under Section 18 of the Act have been pressed into service in this regard. The legal position that customary easement is not an easement in true sense, being not annexed with the ownership of a dominant tenement and not exercisable for more beneficial enjoyment of the dominant tenement and rather recognized as well as enforced as a part of the common law of the concerned locality, has not been appreciated in its right perspective. A customary right is enforceable to have access to fields abutting each other by the right-holders to do and continue to do the agricultural activities therein. Both Courts below, therefore, were not justified in applying the provisions in Section 15 of the Act in the present case. The defendant allegedly has established the existence of customary easement rights on record ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP -9- and the findings to the contrary are stated to be against law and facts of the case.
11. The appeal has been admitted on the .
following substantial questions of law:
1. Whether the Courts below erred in applying Section 15 of the Indian Easements Act while deciding the customary easementary rights of the defendant?
2. Whether the findings of the Courts below are perverse and result of misreading and misconstruction of the oral and documentary evidence?
12. Adverting to the first substantial question of law supra, it would not be improper to conclude that Section 15 of the Act was not at all attracted to the given facts and circumstances of the present case for the reason that the present is not a case where the appellant/defendant is claiming acquisition by way of prescription to have access and use of light and air to her house, as an easement without interruption for a period over 20 years and rather she has pleaded her right to have access through the path over the edge (Maind) of the field of the plaintiff bearing Khasra No.305 ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP
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by way of an easement she acquired by virtue of local custom. It has been so pleaded by her categorically and in so many ambiguous words.
.
13. As a matter of fact, the path in question is not a general or public path and rather the path is being used by the defendant and other villagers to have access to their adjoining fields for the purposes of performing agricultural pursuits. She has not only pleaded so, but also proved by way of her own testimony and also the other and further evidence she produced during the course of trial. She is very categoric while telling us that the path in question is old and being used by them for the last 40 years, i.e., since her marriage. In her cross-examination though she admits to have access to the fields, the villagers used to use the path through the land of other right-holders with their consent, however, this part of her statement cannot be isolated and construed to infer that the defendant has been using the path in question with the consent of the plaintiff and rather considering her statement as a whole it is due to mutual understanding that the villagers use the land of each others' to have access to their ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP
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respective fields, of course, not at the cost of causing any damage or loss to the crop sown. As a matter of fact, the fields of each others' are being used at the .
time of cultivation of land and once cultivation, sowing of seeds is over no one uses the fields of other persons to have access to his/her own fields and uses only the edge (Maind) of a particular field to have access to perform agricultural pursuits after cultivation and sowing of seeds because that much common sense the villagers normally have. She admits that though the plaintiff obstructed the path, however, she did not bow down, he filed the suit.
14. DW-3 Baldev Singh, the then Patwari, Patwar Circle, Delag, is a material witness, as he has prepared the Tatima on the spot. There is no reason to disbelieve his statement that path over the edge of land bearing Khasra No.305 shown in red-dotted line in the Tatima Ext.D-1 is in existence and is the only path available to the defendant to have access to her adjoining land bearing Khasra No.304. DW-3 has prepared the Tatima (Ext.D-1) on the direction of Tehsildar, issued on an application filed by the ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP
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defendant for the purpose. No doubt, this path has not been entered in the revenue record and in Girdawaris, however, there is no reason therefor, i.e., being a Kadim .
path (not a general path), is not required to be entered in the revenue record, as has come in the cross-
examination of DW-3. As already said, the path in dispute is not a general or public path and rather being used for limited purpose, i.e., to have access to the fields for performance of agricultural pursuits, hence such path being not permanent and rather temporary, is not being entered in the revenue record and used by the villagers with mutual understanding and as a personal arrangement.
15. In a case Rup Chand v. Daulatu and others, 1992 (1) S.L.J. 335, having identical facts, it is so held by a Co-ordinate Bench of this Court. This judgment reads as follows:
"........ 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 ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP
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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 stated 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 PW-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 had 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 (PW 3), Ved Ram (DW 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 ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP
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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 and others vs. 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 others 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 by prescription or by necessity. For holding this, I am supported by Rajasthan High Court in Chandgi Ram and others vs. Ramji Lal, AIR 1963 Raj. 161, in which, it was held that:
"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 ::: Downloaded on - 15/04/2017 18:25:20 :::HCHP
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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 r will not be possible for most tenants 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."
8. The cases of Smt. Balley and another vs. Rama Shanker Lal and others, AIR 1975 All 461 and Vidya Sagar and another vs. Ram Dass and another, AIR 1976 All 415, are distinguishable on the ground that section 18 of the Indian Easements Act was not considered in them."
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16. The existence of path in question and user thereof by the defendant to have access to her fields is .
even found support from the testimony of Shri Sohan Singh, Pradhan, Gram Panchayat (DW-4), Kulwant Singh (DW-5) and Duni Chand (DW-6). They are local residents and there is nothing to disbelieve their testimony.
Therefore, the defendant has successfully pleaded and proved that she has customary rights of using the edge of the suit land bearing Khasra No.305 as path to have access to her adjoining field bearing Khasra No.304. It was, therefore, not a case covered within the ambit of Section 15 of the Act and rather under Section 18 thereof. The ratio of the judgment in Manthro Devi v.
State of Himachal Pradesh and others, 2013 (3) Him.L.R. 1345, is not attracted in the present case, as the point in issue in that case was the acquisition of right of passage to the house constructed by the plaintiff through the land of the defendant-State, hence it is Section 15 of the Act involved in that case, whereas in the present one the right to use the path to have access to the adjoining field permissible under the custom, is claimed.
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17. Therefore, both the Courts below have erroneously applied the provisions contained under Section 15 of the Act in this case and the findings so .
recorded are perverse, hence not legally sustainable.
18. Now if coming to the second substantial question of law, again I find the present a case where both the Courts below have failed to appreciate the overwhelming oral as well as documentary evidence available on record in its right perspective. True it is that respondent/plaintiff is owner in possession of the suit land bearing Khasra No.305. Tatima, Ext.D-1, makes it crystal clear that edge of the field bearing Khasra No.305 is a path, which has been shown in red-dotted line. The plaintiff, no doubt, while in the witness-box in his examination-in-chief, has denied the existence of a path over the suit land and rightly so because there is no general or public path over the suit land and it is rather edge of the field being used by the defendant and others to have access to their lands for management of agricultural pursuits. In his cross-examination, he admits that while having access to his own lands on the way he passes through the fields of 17-18 villagers and he uses ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP
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the said fields without any objections or protest from the side of those owners/persons. He further admits that during consolidation the old paths were allowed to be .
kept intact and the creation of new paths was banned.
The denial to the suggestion that the path in question has been created by the defendant after consolidation, leads to the only conclusion that the same was already in existence well before the consolidation. Therefore, when all paths in existence before consolidation were allowed to be kept intact, this path, i.e., the path in question already in existence at that time, is also required to be kept intact. He further tells us that the path in question is being used only by the family members of the defendant. His answer to a question that the disputed path not passes through the edge of the field, but through the space below the edge, though shows that the path is not over the edge of the field, but through the field, however, seems to be not so because, as already discussed supra, after cultivation of the land is over and the seeds sown no one uses the field or any portion thereof as passage and rather it is the edges (Maind) of the fields, are used as passage.
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19. The plaintiff, no doubt, has come forward with the version that another path is in existence which can be used by the defendant to have access to her .
land, however, bald assertions to this effect in his statement cannot be believed to be a gospel truth and that too when he admits that such another path is crossed from the middle of his land and leads to the land bearing Khasra No.304, which as a matter of fact belongs to the defendant. The own testimony of the plaintiff is neither cogent nor dependable so as to arrive at a conclusion that there exists no path over the edge of the field bearing Khasra No.305 and that it is the defendant who has created the said path without any right, title and interest.
20. On the other hand, as already discussed supra, the defendant in her own statement has satisfactorily pleaded and proved the existence of the path in question and user thereof by her to have access to her fields. Not only this, but DW-3 who has visited the spot to prepare the Tatima (Ext.D-1), has also noticed the existence of path there and shown the same in the Tatima in red-dotted line. The testimony of Pradhan ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP
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Gram Panchayat (DW-4), DW-5 and DW-6 also leads to the only conclusion that the path in question is in existence. Since it was obstructed at one point of time .
by the plaintiffs, on the complaint of the defendant, DW-
4 and DW-5 had visited the spot and in their presence the plaintiff agreed to remove the obstruction consequent upon the compromise Ext.DW-4/A arrived at between the parties. Meaning thereby that the path exists, however, it is the plaintiff who is not in favour of allowing the defendant or other members of her family to use the same obviously with an idea to harass them.
21. The further grouse of the plaintiff that the defendant has been throwing the water of her fields on that of his field, also carries no substance because as per his own admission while in the cross-examination, the land of the defendant is situated on higher elevation as compared to his land, which is below her land. The water flows downstream; therefore, it is obvious that the water from the fields of the defendant situated on a higher elevation will flow towards the fields of the plaintiff situated on lower elevation. It is, therefore, not proved that the defendant by way of mischief or with an idea to ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP
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cause loss and damage to the land of the plaintiff has been throwing the water on his land intentionally and deliberately. Both Courts, therefore, have not .
appreciated the evidence comprising oral as well as documentary in its right perspective and on account of it the findings recorded are definitely perverse and the judgment and decree under challenge vitiated, hence not legally sustainable. Both substantial questions of law are answered accordingly.
22. In view of what has been said hereinabove, the judgment and decree under challenge is neither legally nor factually sustainable and the same, as such, is quashed and set aside. Consequently, the suit is dismissed. No order as to costs.
June 20, 2015. (Dharam Chand Chaudhary), (rc) Judge.
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