Customary right of way through adjoining fields for agricultural purposes can be established by custom and usage, falling under Section 18 of the Indian Easements Act, 1882.

Kamlesh Sharma, J.—This is a Regular Second Appeal under pre-amended section 100, C P. C. Challenging the decree and judgment, dated 14-6-1979 of Additional District Judge, Mandi at Kuliu, whereby the decree and judgment, dated 13-12-1976 of Sub-Judge, Kullu, was set aside and the suit of the appellant-plaintiff, Sh. Pekhu was decreed.

2. Sh. Pekhu had filed a civil suit against the respondents-defendants Sh. Rup Chand and others for declaration that he was owner in possession of the field comprised in Khasra No. 1140 and had a right of way to the said field through Khasra No. 1153, 1157, 1142 and 1141 through the spots A B C as shown in the map filed alongwith the suit. Sh. Rup Chand resisted the suit claiming himself owner in possession of Khasra No. 1140. S/Sh. Niloo and Moti and Smt. Sawanri from whom Sh. Rup Chand had allegedly purchased the land comprised in Khasra No. 1141 filed a joint written statement supporting the claim of Sh. Pekhu. The trial Court dismissed the suit holding that Sh. Pekhu had failed to prove his ownership on Khasra No. 1140 as well as his right to way as claimed by him. In appeal by Sh. Pekhu, the Additional District Judge, Mandi at Kullu, reversed the findings of the trial Court and decreed the suit.

3. Sh. Moti Ram died during the pendency of the first appeal and his legal representatives are pro forma respondents No. 4 and 5. Sh. Pekhu had died during the pendency of the appeal in this Court and his legal representative Smt, Daultu has been brought on record.

4. I have heard the learned Counsel for the parties and gone through the record. Sh Bhupinder Gupta, learned Counsel for Sh. Rup Chand, has not challenged the findings of the first appellate Court declaring Sh. Pekhu as owner of Khasra No. 1140. His precise challenge is that on the pleadings and evidence on record, the findings of the first appellate Court that Sh. Pekhu has a right of way through the land of Sh. Rup Chand and others for agricultural purposes are not justified. According to him, the use of edges (mainds) between the adjoining fields of each other by the land owners/tenants in the villages can be presumed to be a permissive user only. In support of his contention, Sh. Gupta has relied upon Smt. Bailey and another v. Rama Shanker Lai and others, AIR 1975 All 461 and Vidya Sagar and another v. Ram Das and another, AIR 1976 All 415.

5. On the other hand, Sh. M. L. Sharma, learned Counsel for Sh. Pekhu, has urged that by the evidence on record, it is proved that Sh. Pekhu had a right of way through the land of Sh. Rup Chand and others by custom as well as usage. According to him such right of way falls under section 18 of the Indian Easements Act, 1882, 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 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 bad been using the edges (mainds) of the field comprised in Khasra No. 1141 before and atter this field was transferred to Sh. Rup Chand till he was restrained by Sh. Rup Chand. He and 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 others fields by the agriculturists in the villages has also been proved by Sh. Trikhu (PW 3), Ved Ra