The distinction between an easement acquired by prescription under Section 15 of the Easements Act and a customary easement as defined in Section 18 of the Act, and the essential elements required to establish each type of easement.

JUDGMENT:- This second appeal filed by the plaintiff's arises out of the judgment and decree dated 30th April, 1968 of the District Judge, Dharamsala, Lachhi Ram and five others who are the plaintiffs, came to Court with the allegations, that Ghansara Singh and two others who are the defendants, being proprietors of Khasra Nos. 1025 and 1048 of Tikka Andreta of Palampur Tehsil, have erected a hedging so that their cattle which used to graze over the disputed land, have been stopped from going there. The plaintiffs based their claim on the allegations, that they as well as their ancestors have been using the disputed land for pasturage and their cattle used to go there and rest for the day. It was only recently that the defendants created the obstruction and hence the plaintiffs claimed for a declaration that they had acquired a right of pasturage and that a permanent injunction is also to be granted in their favour and against the defendants, restraining the latter from interfering in the plaintiff's grazing rights.

2. The defendants contested the suit on the allegations, that the plaintiffs never grazed their cattle inside the disputed land and that they did not acquire any right of pasturage. The contentions of the plaintiffs found favour with the trial Court and the suit was decreed. However, the learned District Judge in first appeal disagreed with the findings of the teamed Subordinate Judge and dismissed the suit.

3. The plaintiffs have now come up in second appeal and the only point of contention is, as to whether the plaintiffs have acquired any right of the nature of easement for pasturage. After hearing the learned counsel for both the parties and after a careful reading of the record, I cannot help concluding, that the Courts below have not given proper consideration to the points that were really at issue between the parties. They should have understood the distinction between an easement acquired by prescription under Section 15 of the Easements Act (Hereinafter to be referred as the Act) and a customary easement as defined in Section 18 of the Act. In order to bring out this distinction so that the parties get their proper rights, the judgments of the learned appellate Judge as well as of the learned Subordinate Judge shall be set aside and the case shall be remanded.

4. In the plaint, in paragraph (2) the allegation was that the plaintiffs alone were sending their cattle for pasture inside the disputed land. It appeared, therefore, that the claim was for acquisition of easement by prescription under Section 15 of the Act. But in paragraph (3) of the plaint, the area was called "Shamlat" of the village, meaning thereby that the plaintiffs as well as the other residents of the village used to take their cattle for pasturage in this area. That was really a claim for a customary right or customary easement under Section 18 of the Act. At any rate, the pleadings were not got clarified by proper statements before the issues were framed. The Issue No.1 itself was rather vague which ran as below:-

"Whether the plaintiffs have grazing rights in the suit land. If so, its effect."

As I have stated before, grazing rights or rights of pasturage could be founded on custom as well as on prescription. If the land is 'shamlats' the right could take its origin into a custom and the easement would be customary easement under Section 18 of the Act. If the land is not 'shamlat' because the revenue entries show proprietary rights in favour of the defendants, the plaintiffs may claim an easement of pasturage by prescription under Section 15 of the Act. Due to this confusion, the parties could not adduce proper evidence and the points at issue could not be clarified so that a correct decision could not be arrived at.

5. The learned District Judge set aside the judgment at the learned Subordinate Judge under a reasoning which cannot by any process be considered sound. He has specified that between the disputed land and the land belon