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.

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 khata no. 256 of village Rampur Police station Lakhissarai in the district of Monghyr was Gair Mazrua Am Houj (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 servient tenement:

(ii) The easement must accomodate the dominant tenement.

This is clear from the definition of easement given in Sec. 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 servient 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 easement 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 refer to an expression customary easement mentioned in Sec.18 of the said Act. Sec.18 of the Act says that an