The judgment established the distinction between prescriptive easement and customary right, emphasizing the interpretation of Section 15 of the Indian Easements Act.

JUDGMENT :

Dharam Chand Chaudhary, J. - Defendant is in second appeal before this Court. She is aggrieved by the judgment and decree passed by learned District Judge, Bilaspur, on 6th May, 2004, in Civil Appeal No. 1 of 1997, whereby the judgment and decree passed by learned Senior Sub Judge, Bilaspur, in Case No. 140-1 of 1993, on 29th November, 1996, has been affirmed and the appeal dismissed.

2. The controversy lies in a narrow compass, as the dispute is qua the path the appellant/defendant using to have access to her adjoining land for cultivation purposes and other allied agricultural pursuits. The parties to the suit are none else, but in close relations, being brother-in-law (Devar) and sister-in-law (Bhabhi).

3. The respondent/plaintiff, admittedly, is the owner-in-possession of land entered in Khewat No. 63 min, Khatauni No. 72 min, bearing Khasra No. 305 and 307, measuring 5-10 bighas, situate in village Salnoo, Tehsil Sadar, District Bilaspur. The complaint is that there exists no path over the suit land bearing Khasra No. 305. The appellant/defendant allegedly using the said land as path to have access to the land belonging to her. He desisted such acts and conduct attributed to defendant, but of no avail and to the contrary she is continuously using the suit land as path and causing damage to the crops, the plaintiff sown therein. She allegedly used to throw water on the land of the plaintiff. Hence he filed the suit for decree of permanent prohibitory injunction restraining the defendant from creating new path over the suit land and destroying the crops sown and standing thereon.

4. The response of the defendant, as disclosed from the written statement in a nutshell, is that there exists village path over the suit land and the same is being used by her and other villagers for the last more than 20 years by way of customary easement, as according to her, custom to use such path in existence on the boundary of Khasra No. 305 to have access to the adjoining land is old, continuous, peaceful, reasonable, certain and compulsory. Such path is allegedly shown in red-dotted line in the Tatima on record. Thus, there is no question of causing any interference by her over the suit land and rather she and other family members are enjoying the path in question passing through the boundary of Khasra No. 305 to have access to their adjoining land. As per her further case, there is no other path available to her to have access to her land. A frivolous suit allegedly has been filed against her because she allegedly is enjoying the path in existence over Khasra No. 305 as a right of customary easement for the last more than 20 years, continuously and without any interruption. It has been reiterated that the villagers by way of customary rights use the adjoining land to have access to their land and such rights are old. The allegations that she has been throwing water over the suit land have also been denied, being wrong.

5. On the basis of the pleadings of the parties, learned trial Judge has framed the following issues.

"1. Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP.

2. Whether the defendant has been in the user of the path from the boundary of Khasra No. 305 as of right and that this user has ripened into customary easement as of right? OPD.

3. Relief."

6. The plaintiff in turn has himself stepped into the witness-box as PW-1 and while supporting the case he set out in the plaint, has also placed reliance upon the copy of Jamabandi for the 1988-89, Ext. PA, copy of Khasra Girdawari for the period 15th November, 1989 to 11th March, 1990, 9th August, 1990 to 30th March, 1991, 26th October, 1991 to 16th March, 1992 and 2nd April, 1992 to 27th March, 1993, Ext. PB and copy of Aks Shajra Kistwar, Ext. PC.

7. Defendant, on the other hand, has examined Shri Onkar Chand, Patwari, Kuddi (Delag), Tehsil Sadar, District Bilaspur (DW-2), who has produced the Jamabandi, Khasra Girdawari and Latha, Shri Baldev Sin