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2018 Supreme(HP) 664
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Brahma Nand - Appellant
Versus
Teju Ram (deceased) through his legal representatives Surat Ram and others – Respondent
RSA No.262 of 2006
Decided On : 18-12-2018
For the Appellant :Mr. Romesh Verma, Advocate.
For the Respondent:Mr. N.K. Sood, Senior Advocate with Mr. Aman Sood, Advocate.
The main legal point established in the judgment is the distinction between customary easement and easement by prescription, and the requirements for acquiring each type of easement.
Headnote:
easement - property dispute - Easements Act, Section 15, Section 18 - The court discussed the nature of the easement claimed by the defendants, distinguishing between customary easement and easement by prescription. It highlighted the conditions for acquiring an easement by prescription and the requirements for customary easements. The court found that the lower court failed to understand and draw a distinction between customary and prescriptive easement, leading to a palpably wrong judgment. The appeal was accepted, and the matter was remanded back to the lower court to decide specifically the question regarding the customary easement.
Fact of the Case:
The plaintiff filed a suit for permanent injunction against the defendants, alleging that they were creating a new path through the plaintiff's land without right, title, or interest. The defendants claimed a customary easement of pathway, stating that the path had been used by them and the general public for more than 60-70 years.
Finding of the Court:
The court found that the lower court failed to understand and draw a distinction between customary and prescriptive easement, leading to a palpably wrong judgment. The appeal was accepted, and the matter was remanded back to the lower court to decide specifically the question regarding the customary easement.
Issues: The issues framed by the trial court included the entitlement of the plaintiff to the relief of injunction, the competency of the plaintiff's suit, the defendants' right of easement over the disputed path, obstruction of the ancestral path by the plaintiff, and the cause of action.
Ratio Decidendi: The court's decision was based on the failure of the lower court to understand and draw a distinction between customary and prescriptive easement, leading to a palpably wrong judgment.
Final Decision: The appeal was accepted, and the matter was remanded back to the lower court to decide specifically the question regarding the customary easement.
Tarlok Singh Chauhan, J.
The suit filed by the plaintiff for permanent prohibitory injunction has been declined by both the learned Courts below and aggrieved thereby, he has filed the instant regular second appeal. The parties hereinafter shall be referred as ‘plaintiff’ and ‘defendants’.
2. The plaintiff filed a suit for permanent injunction against the defendants on the allegations that he is owner in possession of land comprised in Khata-Khatauni No.20/27, Khasra Nos. 16, 17, 18, 19, 21, 22, 23, 60, 61, 62, 63, 64, 77, 78, 79, 80, 82, 84, 117, 118, 120, 228, 292/1, 294, 295 and 305. It was averred that the entire suit land bears apple orchard out of which about 800 plants are on bearing stage and rest of the plants are at the age of 2 to 5 years. The plaintiff had also constructed a huge building in the orchard. The defendants hail from village Gumna which is about one and half kilometres away from the suit land and Devidhar Road is situated below the suit land. The suit land has been fenced with barbed wire and wall etc. It was further averred that the village of the defendants is situated above the suit land and there are two common paths from the time of ancestors for passing far away from the suit land. One of the paths passes through the Torsa Khad and another towards Devidhar side. The defendants are using the said path since the time of their ancestors, but recently, just to approach the main road through short-cut, the defendants started creating new path through the suit land which belongs to the plaintiff and the defendants have no right, title or interest to create new path through the suit land. It was also averred that the defendants falsely reported the matter to the police and the police did not find any path at the spot. The defendants threatened to create path through the suit land, so the plaintiff filed petition under Section 107/150 Cr. P.C. in the Court of SDM, Rohru. The defendants illegally uprooted 250 plants and potato crop from the suit land and after dismantling fencing and wall around the suit land caused damage of Rs.10,000/- to the plaintiff. The defendants did not resist from their illegal acts, hence, the suit.
3. The defendants contested the suit and raised preliminary objections about competency, plaintiff not coming to the Court with clean hands, estoppel and cause of action. On merits, it was averred that the old general public path starts from ‘Shiv Mandir and passes through points a, b and c which have been shown in tatima by red dots and thereafter it passes through point ‘d’ and reaches at point ‘e’ and merges in Khasra No. 158 which is public thoroughfare. The aforesaid path was being used by the defendants and other general public continuously, openly, peacefully and without any interruption to the knowledge of the plaintiff since the time of their ancestors i.e. more than 60-70 years and this right of use of the path has matured in customary right of easement and the plaintiff has got no right to obstruct and block the said path. It was further averred that there was no other path for use by the defendants for reaching their houses and agricultural fields. The ancestral path of the defendants had been blocked by the plaintiff by digging and fencing with barbed wire which is a link between the hill top situated village Gumna and ‘Shiv Mandir’. The defendants averred that the matter about obstruction of the path was brought to the notice of SDM, Rohru and Tehsildar, Chirgaon, who visited the spot and found that the plaintiff has caused blockade to the old ancestral path of the defendants by digging and fencing it with barbed wire at place Bhamani and also found that this blockade is a source of chronic nuisance to the residents of village Gumna and school children and also recommended stringent action to clear the path. The local police also visited the spot and found that the plaintiff had caused blockade to the ancestral path and petition under Section 133 Cr.P.C. had been
