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2011 Supreme(HP) 2589
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAJIV SHARMA, J.
Sarwan Singh — Appellant
Versus
Chanan Singh And Others — Respondent
Regular Second Appeal No. 100 of 2002
Decided on : 27-07-2011
The main legal point established in the judgment is the requirement for proof of immemorial, certain, and reasonable custom for customary rights, and the distinction between customary right and customary easement.
Headnote:
Customary Right - Property Dispute - Sections 13, 15, 18 of the Indian Easements Act, 1882 - The court discussed the distinction between customary right and customary easement, and emphasized the need for proof of immemorial, certain, and reasonable custom for customary rights. The judgment set aside the findings of the lower court for partly allowing the cross-objections based on customary right and customary easement.
Fact of the Case:
The Plaintiff filed a suit for permanent prohibitory injunction against the Defendants, claiming exclusive ownership of a land and alleging trespass by the Defendants. The Defendants contested the suit and filed a counter claim, asserting their right to use a path through the Plaintiff's land based on customary easement and right by way of prescription.
Finding of the Court:
The court analyzed the evidence presented by both parties and found that the Defendants failed to prove the existence of customary easement or customary right. The court emphasized the need for proof of immemorial, certain, and reasonable custom for customary rights, and highlighted the distinction between customary right and customary easement.
Issues: The issues included the validity of the counter claim for permanent prohibitory injunction based on customary right and customary easement, the identification of the passage, the existence of meend/doul on the Plaintiff's land, and the misreading and misappreciation of evidence by the lower courts.
Ratio Decidendi: The court's decision was based on the failure of the Defendants to prove the existence of customary easement or customary right, as well as the misreading and misappreciation of evidence by the lower courts. The court emphasized the need for proof of immemorial, certain, and reasonable custom for customary rights.
Final Decision: The court dismissed the Regular Second Appeal and set aside the judgment based on the findings of the lower court for partly allowing the cross-objections. No costs were awarded.
JUDGMENT :
Rajiv Sharma, J.
This Regular Second Appeal is directed against the judgment and decree dated 31.12.2001 rendered by the learned Additional District Judge, Sirmaur at Nahan in Civil Appeal No. 40-N/13 of 2001/2000 and in Cross-Objections No. 41-N/13 of 2000.
2. Material facts necessary for the adjudication of this Regular Second Appeal are that Appellant-Plaintiff (hereinafter referred to as 'Plaintiff' for convenience sake) instituted a suit for permanent prohibitory injunction against the Respondents-Defendants (hereinafter referred to as 'Defendants' for convenience sake) on the ground that he was exclusive owner in possession of the land comprised in Khasra No. 201/91, Khata Khatauni No. 5 min/14 measuring 6-7 bighas vide jamabandi for the year 1991-92. He has purchased the land from Sh. Gian Singh vide registered sale deed dated 16.6.1994. The land of the Defendants was adjoining to the suit land and they often trespass into the suit land by removing fence put up by the Plaintiff around the suit land. The Defendants had openly threatened the Plaintiff that they would dispossess him from the suit land forcibly. It is in these circumstances that the suit was filed by the Plaintiff.
3. The suit was contested by the Defendants by filing written statement. They denied that they have trespassed on the suit land by removing the fence. According to the Defendants, no barbed wire was existing in April, 1994 and the same was fixed by the Plaintiff in the second week of May, 1994. Defendants also filed counter claim by pleading that they were owners in possession of the land comprised in Khasra No. 103 measuring 17 bighas 6 biswas adjoining to the land of the Plaintiff. They had been using the path, which starts from P.W.D. Road and passes through Khasra No. 201/151 and 205/191/176 for the last 100 years, which leading to their land in Khasra No. 103. The width of the path was also given in the counter claim. They had taken the plea of right by way of prescription by using the said path. There was no alternative path. They have also pleaded that the path was otherwise necessary for ingress and outgress for using their land. The plea was also taken that the path was a customary path. The Defendants have also filed amended counter claim and in alternative they have pleaded that they have customary easement for using the said path for reaching their fields in Khasra No. 103.
4. The Plaintiff filed reply to the counter claim. Trial Court dismissed the suit as well as counter claim on 21.12.1999. The Plaintiff filed appeal bearing Civil Appeal No. 40-N/13 of 2001/2000 assailing the judgment dated 21.12.1999 whereby the suit preferred by him was dismissed. The Defendants also filed cross-objections bearing No. 41-N/13 of 2000 against the judgment dated 21.12.1999. The learned Additional District Judge, Sirmaur dismissed Civil Appeal No. 40-N/13 of 2001/2000, however, he has partly decreed the counter-claim and the Plaintiff was permanently restrained from obstructing the Defendants from using the 'douls (ridges) of the suit land as passage to their land comprised in Khasra No. 103. It is in these circumstances that the Plaintiff has filed the present Regular Second Appeal against the judgment and decree dated 31.12.2001 rendered in Civil Appeal No. 40-N/13 of 2001/2000 and in Cross-Objections No. 41-N/13 of 2000. It was admitted on the following substantial questions of law:
1. Whether the learned first appellate court was right in decreeing the counter claim of the Defendants for permanent prohibitory injunction on the basis of customary right, whereas the plea set up by the Defendants was of customary easement?
2. Whether the learned first Appellate Court could have granted permanent injunction of right of passage through the land of the Appellant without indentifying the passage?
3. Whether no meend/doul exists on the land of Plaintiff when the suit was filled and no decree permitting the Defendants for customary right of passage co
