Presumptive user of ridges of paddy fields for access is permissive, not definitive; burden of proof lies on claimant to establish usage 'as of right'.

JUDGMENT

Sathish Ninan, J.

This second appeal is before us on a reference. The question posed essentially is, “Is it an invariable rule that a prescriptive easement right of way cannot be claimed over ridges of paddy fields?”

2. The reference order doubts the correctness of the judgment of a learned Single Judge in Thottathil Thamasikkum Cherootty alias Balan v. Puliyaratharayil Velayudhan Nair (AIR 1998 Kerala 164). Therein this Court held, “It is a common feature in Indian villages that people generally pass over the ridges between two paddy fields. Their right of way can only be permissive”.

3. We have heard learned counsel Sri.K.P.Sudheer the learned counsel for the appellants and the learned Senior Counsel Smt.Sumathy Dandapani on behalf of the respondents.

4. In Smt.Balley and another v. Rama Shanker Lal and others (AIR 1975 Allahabad 461) it was held,

“It is the common feature in our agricultural villages that on the Mend boundary between two cultivated agricultural fields public generally pass and hardly by habit any agriculturist objects to it. I have no hesitation in holding that such passing over the ridges of the field to and fro by the villagers would always be permissive user. Thus an uninterrupted user by any reason of a ridge between the two agricultural fields for passing over it could be presumed to be permissive and not as of right.”

Again, in Vidya Sagar v. Ram Das (AIR 1976 Allahabad 415) it was held :

“India is predominantly an agrarian country where, speaking generally, the relation between cultivators is cordial and rests on mutual regard for the convenience of others. It is, therefore, too common for one cultivator to pass over the Mend of another cultivator as a means of access to his own field and such user of the Mend of one's field by another for purposes of agricultural operations and allied activities is, generally speaking, never objected to and is, therefore, nothing but permissive.”

This Court, in Cherootty @ Balan's case (supra), adopted the very same reasoning of the Allahabad High Court.

5. In our opinion, the judgment in Cherootty alias Balan (supra), the correctness of which has been doubted in the reference order, and the judgments of the Allahabad High Court referred to earlier, do not lay down that there is an absolute prohibition against the claim of a prescriptive easement right of way over the ridges of paddy fields. All that was held was that, it is common in our Country, especially in the villages, that people pass and re-pass over the ridges of paddy fields for their convenient access. Such user is very common. It is not objected to by the owner of the paddy field. So also such user and access is hardly considered as one of 'right'. Courts cannot be oblivious of such common course of events.

6. In Aftab Ahmad Ansari v. State of Uttaranchal , [(2010) 2 SCC 583] , at paragraph 15, the Apex Court held, “In drawing inferences and presumption, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case.”

In Mahabir Singh v. Anant Ram ( AIR 1966 All. 214 ) it was held, “Section 114 of the Evidence Act does not lay down any hard and fast rule for raising presumptions. It gives a few illustrations from various walks of life. The section provides a guiding principle, namely, that the court shall be led by its own experience and knowledge of the common course of natural events, and public and private affairs.”

7.