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2024 Supreme(Online)(Bom) 846
BOMBAY HIGH COURT
R. M. JOSHI, J
SUYAKANT PUNDA SUWARNKAR – Appellant
Versus
SURYAKANT KALAPPA KOKALGE AND OTHERS – Respondent
SA 599 / 2015
Ms P. V. Bodke Patil, Advocate for the appellant. Mr. S. V. Hange, AGP for the State. Mr. S. S. Halkude, Advocate for respondents No. 1 to 3, 5 and 6.
Customary rights must be specifically pleaded and proven; mere assertions without evidence are insufficient for establishing claims over property.
Headnote:(A) Easement Act, 1882 - Section 18 - Code of Civil Procedure, 1908 - Section 100 - Customary easement vs. customary right - Plaintiffs claimed customary right for burial ground; First Appellate Court erred in recognizing it as customary easement - Plaintiffs failed to prove long-standing custom or legal right over suit property - Appeal allowed, Trial Court's judgment restored. (Paras 6, 10, 13, 20)
(B) Customary rights - Must be specifically pleaded and proved; mere assertions without evidence are insufficient. (Paras 14, 19)
Facts of the case:
Plaintiffs, representing the Jangam Community, sought declaration of ownership and injunction against defendants regarding a burial ground claimed to be allotted by the village/Government. Defendants denied the existence of such a burial ground and claimed exclusive ownership. (Paras 3, 4)
Findings of Court:
The First Appellate Court's decree was based on misinterpretation of evidence and law; plaintiffs did not establish customary easement or right. (Paras 20)
Issues: Whether the First Appellate Court erred in recognizing a customary easement and reversing the Trial Court's judgment without proper consideration of evidence. (Paras 1, 6)
Ratio Decidendi: The court held that customary rights must be established through evidence and cannot be assumed; the First Appellate Court misapplied the law regarding customary easements. (Paras 10, 20)
Result: Appeal allowed; judgment of the First Appellate Court quashed and Trial Court's judgment restored.
1. In this second appeal, following substantial questions of law arise :-
i) Whether the First Appellate Court has committed error in considering case of plaintiff as customary easement instead of customary right ?
ii) Whether the First Appellate Court has committed error in reversing the judgment and decree passed by the Trial Court without considering the pleadings of the plaintiffs and evidence ?
2. Parties are referred to by their nominclature in the original proceedings for the sake of convenience.
3. The aforestated questions of law arise in the backdrop of the facts of the case which can be narrated in brief as under :-
Plaintiffs claim themselves to be the representatives of Jangam Community situated at village Gharni. The suit is filed in representative capacity with permission of the Court. Plaintiffs filed suit for declaration and in the title of the plaint claimed that suit is for declaration of ownership. In the prayer, it is sought to be declared that they have legal right in respect of the suit property. Injunction is also sought against defendants. According to plaintiffs, the suit property i.e. 10R land from Gat No. 587 is allotted by village/Government and for years together, the dead bodies of the community are buried therein and as per the custom tombs of their ancestors are constructed over the place of burial. Plaintiffs specifically claimed that plaintiff No. 1 and 2’s father, plaintiff No. 5’s grand parents are buried at the said place and the tomb of father of plaintiff No. 3 is constructed therein. According to plaintiffs, in Rajswa Abhiyan, said land was measured by the Tahsildar. It is alleged against defendants that poles erected around the land were removed by them and that they have obstructed for the burial of the dead belonging to the community of plaintiffs. Reference is also made to the complaints made to revenue and police authorities in this regard. The suit property is described as 10R land with road towards East, defendants’ land from Gat No. 587 towards West, house of Yadav towards South and Masjid towards North.
4. Defendants, by filing written statement, opposed the suit. There is no dispute made with regard to the fact that there is presence of Jangam community in the village. It is however denied that any place was allotted by village or Government as a burial ground from Gat No. 587. It is claimed that in old Survey No. 226, 10R land each was used for Hindu and Muslim community burial and during the Consolidation Scheme, six parts were made of Survey No. 226 out of which Gat No. 1 was carried out to the extent of 20R consisting burial ground for Hindu and Muslim community. It is claimed that Gat No. 587 is exclusively owned by defendants and that no burial ground exists therein. Defendants denied the allegations made in the plaint. It is claimed that plaintiffs are trying to take advantage of the fact that Survey No. 226 was known by local name ‘Masanwata’ and since the said description continued even in respect of Gat No. 587, now benefit is sought to be taken of the said fact claiming right over the suit property which never existed in their favour.
5. Learned Trial Court framed issues at Exhibit 40 and burden was cast upon plaintiffs to prove their right over the suit property. Plaintiff No. 1 examined himself at Exhibit 54. Digambar Gaikwad, TILR was examined at Exhibit 79. In order to prove measurement of the suit property carried on 8th November, 2005, Ashok Chinte (Exhibit 84), Vyankatrao Patil (Exhibit 85), and residents of Gharni village were also examined. Plaintiffs further led evidence of Dnyanoba Ohal, retired Tahsildar at Exhibit 131. Defendants, on the other hand, examined defendant No. 4 Suryakant (Exhibit 101) and led evidence of villagers Laxman Shinde (Exhibit 107) and Devidas Kamble (Exhibit 108).
6. Learned Trial Court, on the basis of pleadings and evidence on record dismissed the suit by holding that plaintiffs have failed to prove their right over the suit
