Patna High Court
Ram Chandra Sah vs Abdul Hannan And Ors. on 8 March, 1984
Equivalent citations: AIR1984PAT313, AIR 1984 PATNA 313, (1984) PAT LJR 575 1984 BBCJ 658, 1984 BBCJ 658
JUDGMENT Ashwini Kumar Sinha, J.
1. This second appeal is by defendant 1 against the judgment of affirmance. The plaintiffs originally prayed by way of reliefs 1 and 2 as follows:--
(i) that the Court be pleased to pass a decree for permanent injunction, restraining the defendants from obstructing the suit land from user as a path or passage by construction of a wall over it or by any other manner in plaintiffs' favour against defendants 1 and 2;
(ii) that if in the meantime, the defendants complete the obstruction, the decree may be passed to remove the obstruction and to bring the suit land to its original condition, prohibiting the defendants permanently from obstructing the suit land, in plaintiffs' favour against defendants 1 and 2.
2. It seems, the plaint was later amended and after relief (ii) (mentioned above) the relief (ia) was allowed to be added, which is as follows :
"ia. that the Court may be pleased to pass a decree declaring that the Plaintiffs got title and possession as their Kast land or in the alternative got customary right of easement and are entitled to recover possession by removal of the structure made by the defendants."
3. Thus, the suit was for a declaration of title and recovery of possession with relief of permanent and mandatory injunction with respect to the suit land and alternatively, plaintiffs' pleaded customary right of easement. The suit land is only an area of 6 Dhurs forming part of Municipal Khesra No. 18498. This disputed portion is on north west portion of the plot in mohalla Mufti in the town of Darbhanga.
4. The plaintiffs' case was that the suit plot originally belonged to defendant 2, which was his Minhai land. According to the plaintiffs this suit plot i.e. 18498 along with other plots was settled with the mother of the plaintiffs by defendant 2 under a registered Patta dated 10th March, 1950 and since then the mother of the plaintiffs came in possession and constructed a house thereon. According to the plaintiffs the house was built on 9 dhurs 11 dhurkies of the suit plot along with other plots and on the north west portion of the suit plot privy was made and according to the plaintiffs this portion of the suit plot in dispute was left for the passage for Mehtar to clean the privy and for the use of the passers-by of the locality and other needs of the personal necessity. According to the plaintiffs since 1950 the suit land in dispute had been in use in the manner aforesaid.
5. The plaintiffs' further case was that though by the aforesaid registered patta, the entire plot i. e. 18498 measuring 15 dhurs 11 Dhurkies was settled to their mother, but by oversight only 10 Dhurs was described as the area of the plot in the registered patta. According to the plaintiffs the defendants 1 and 2 in collusion with each other put a Tatti on the suit land and obstructed the passage to privy and thereafter defendant 1 started digging foundation over the suit land and began to construct a brick wall in the month of December, 1974 which necessitated filing of the present suit.
6. The plaintiffs claim that although they had title and possession over the same on the basis of the registered Patta dated 10th March, 1950, yet even if it was deemed to be a State property, the plaintiffs have got customary right of path over the same.
7. It is pertinent to note here that the State of Bihar was also made a party as defendant 3.
8. The suit was contested only by defendant 1 and defendant 3 (State of Bihar). They filed their separate written statements. According to the State of Bihar (defendant 3) the suit land had vested in the State of Bihar and neither the plaintiffs nor defendants 1 and 2 had any right, title or interest in the suit land.
9. The contesting defendant l, inter alia, pleaded that the plaintiffs' mother did not get the settlement of the entire suit plot by the Patta dated 10 March, 1950. The defence of defendant 1 was that the suit land was never in possession of the plaintiffs' mother or even to the plaintiffs. According to the contesting defendants, defendant 2 as Minhadar settled only 10 Dhurs of the suit plot in the name of plaintiffs' mother from east for which the settled also executed a Kabuliat on the same date. According to the contesting defendants the remaining area of 5 Dhurs 11 Dhurkies from west remained in possession of the defendant 2, who let out the same to defendant 1 on monthly rent in 1958 over which the defendant constructed a house and started business of selling fuels. According to the contesting defendants, in 1962 defendant 2 mortgaged the suit land with other lands to one Rajendra Pd. Sah by a mortgage deed on 31-3-1962 and subsequently in 1967 defendant 2 sold the same by a registered sale-deed to him and since then, he was in possession of the suit land as the owner. The contesting defendants also pleaded adverse possession,
10. Thus, from the pleadings of the parties, as mentioned above, the contesting defendant admitted the plaintiffs' case to the extent that the plaintiffs' mother had taken settlement of a portion of the disputed plot No. 18498 from defendant 2. The contesting defendant thus, admitted the settlement in favour of the plaintiffs' mother, just with a variation that in fact, it was only 10 Dhurs of the suit plot from east that was settled in favour of the plaintiffs' mother by patta dated 10 March, 1950.
11. Thus, the main point to be decided in the suit was whether the entire plot (18498) was settled with the plaintiffs' mother as claimed by the plaintiffs or, only 10 Dhurs of the plot in question was settled to her as alleged by the contesting defendant.
12. It is most pertinent to mention here that the boundary of the plot in dispute (i. e. Plot No. 18498) has not been given in the registered patta dated 10th March, 1950. What is there in the registered patta is that a common boundary of all the plots settled by the aforesaid patta has been given. The trial Court held that the plaintiffs had got title over the suit land on the basis of settlement through the aforesaid patta and defendant 1 could not acquire any title on the basis of their own sale deed as that was a sham and collusive transaction. It further held that the plaintiffs were in possession of the suit land as rasta from the date of settlement in the year 1950 to 1967 when he was dispossessed by the defendant.
13. So far as the alternative relief pleaded by the plaintiffs was concerned, i. e. a customary right of easement and user of the passage, the trial Court held that it did not count much as the plaintiffs had proved their title and possession up to 1967. The trial Court further held that the defendants had failed to prove the plea of adverse possession.
14. Being aggrieved by the judgment and decree of the trial Court defendant 1 preferred an appeal. The lower appellate Court held as follows:
"So, in view of the oral and documentary evidence of the parties, it appears that the plaintiffs were in possession of the suit land using it as rasta or parti land from the date of settlement in 1950. So, the claim for customary right by the plaintiffs does not appear to be exaggerated one, because he gets right, title and interest on the suit land as discussed by the learned lower Court and in this judgment.''
15. With this finding the lower appellate Court dismissed the defendant's appeal.
16. The learned Counsel appearing for the contesting defendant has advanced two submissions. Firstly, that on the facts of the case specially in the absence of the boundary of the plot in question whether it can be held in law that the entire area of the plot was settled with the plaintiffs' mother or the area of 10 Dhurs as mentioned in the registered patta would only prevail. The learned Counsel for the appellant submitted that a perusal of the judgment of the lower appellate Court gives an impression that the lower appellate Court has held that it was boundary which was to prevail and not the area and hence the lower appellate Court, on the facts of the instant case, has committed an error. Secondly, that the finding of the title in favour of the plaintiff suffers from vagueness as there is no clear and specific finding as to whether the decree granted in favour of the plaintiffs with regard to the title was on the basis of the document of title (registered patta) Ext. 6, dated 10th of March, 1950 or the decree with regard to the title of the plaintiffs was given on the basis of the customary right and in that view of the matter, the learned Counsel for the appellant submitted that this finding which was too vague enough, is not binding in second appeal and needed to be interfered with.
17. I deal with the learned Counsel's first submission as to whether, on the facts of the instant case, it was the boundary which was to prevail or the area as mentioned in the registered patta dated 10th March, 1950 was to prevail. As I have already stated above, there is no mention of the boundary of the plot in question i.e. of Plot No. 18498 in the registered patta dated 10th of March, 1950 in favour of plaintiffs' mother. There is only one common boundary which covers all the plots mentioned in the registered patta. The question is whether this common boundary covering all the plots mentioned in the deed is enough in law to hold that the boundary would prevail. It is well settled that there in no invariable rule that in all cases of disagreement between description by area and specification of boundary, the latter must prevail. It is well settled that it is a matter for examination in each case as to what was the intention of the parties and the understanding between them at the time of entering into the contract. Reference may be made to the case of Ganga Sahu v. Kanhu Lal Marwari, AIR 1933 Pat 60.
18. In the present case, admittedly no boundary has been given of the plot in question. Therefore even the question of boundary of the plot in question being certain, definite and without any vagueness does not arise. The common boundary for all the plots mentioned in the deed is not enough for coming to a finding with regard to the plot in question that even though the area was mentioned less in the deed the common boundary brings within its sweep the larger area. The lower appellate Court should have looked at the case from settled principles of law, as mentioned above. Thus, I hold that there is enough force in the first submission advanced by the learned Counsel for the defendant appellant.
19. So far the second submission advanced by the Counsel for the appellant is concerned, I hold that there is enough force in this submission as well. I have already quoted above the finding with regard to the title in favour of the plaintiffs arrived at by the lower appellate Court. In my opinion, this is a finding which, in fact, keeps one in dark as to the basis on which the claim of the plaintiff has been decreed. A reading of the finding, as quoted above, gives an impression that the claim of the plaintiffs has been allowed both on the primary claim as well as on the alternative claim which, in law, was not permissible. Either the plaintiffs would succeed on the primary claim or on the alternative claim but not on both.
20. It seems, the lower appellate Court has failed to appreciate as to what 'customary right' and 'easement' are, 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 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. It is again well settled that the customary right is also different from customary easement. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it. The lower appellate Court, in my opinion has, in fact, decreed the plaintiffs' claim on absolutely a vague finding and I hold that such a finding cannot be said to be clear and specific finding on the question of title. I further hold that the finding is not only vague but also a confused one. In that view of the matter I further hold that such a finding is not binding in second appeal.
21. In the result, this appeal is allowed. The judgment and decree of the lower appellate Court are set aside and the case is sent back to the Court of appeal below for deciding the matter afresh on the materials already on the record, after hearing the parties and in accordance with law. However, in the circumstances of the case, there will be no order as to costs.