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Lakhmi Chand Vs. Moti Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1939All165
AppellantLakhmi Chand
RespondentMoti Lal and ors.
Excerpt:
- - that prayer was refused by the trial court on the ground that the plaintiffs had failed to satisfy it that the portion of the land which was left open after the erection of the building in question was insufficient for the exercise of their rights. the entire evidence led by plaintiffs is of a reliable character. since no less than 75..years i find that the residents of mohallas mianganj, phapala, dhusran, garibanan and kaliyanganj have been burning holi over defendant's disputed land since time immemorial as a matter of right, and that defendant has completely failed to prove that this right was exercised with his or his mother's permission......case in kuar sen v. mamman (1895) 17 all. 87. in that case the findings of fact recorded by the district judge were that the defendants had acquired no right by prescription to use the land in question or the chabutra in question and that no custom to use the land or chabutra had been established. the learned judges in their judgment observe at pagers 90.91 of the report:it is obvious from the findings of the district judge that no easement by prescription had been proved in this case. all that was proved, according to the findings of the district judge, was that various mirasis, whose connexion with each other is not established, have within a period of 20 years or so placed tazias on the land and sung there.... what we have to consider is, does the fact which the district judge.....
Judgment:

Verma, J.

1. This is a second appeal by the defendant in a suit praying for a perpetual injunction to restrain him from constructing a building on a plot of land belonging to him in such a manner as to interfere with the rights of the plaintiff's and other Hindu residents of certain mohallan in the town of Aligarh, of going to this plot of land at a certain time of the year and collecting fuel there and burning Holi and performing certain religious ceremonies. The trial Court passed a decree in favour of the plaintiffs, who had brought the suit in a representative capacity, granting them an injunction restraining the defendant from interfering with the plaintiffs and the other Hindu residents of the mohallas in question from keeping Holi on this land on 15th of Phagun sudi each year and burning it at night. It had further ordered the defendant to allow the ashes to cool down on the land, and it, directed that after they had cooled down, they could be removed either on Chait badi 1 or Chait badi 2. It also directed the plaintiffs always to make sufficient provision for water and to take other precautions in order to prevent any fires. It further ordered the plaintiffs to exercise their rights in such a manner as not to cause any damage to the defendant's shops or other structures and declared that if the plaintiffs were negligent, they would have to pay compensation to the defendant. The plaintiffs had also asked for the demolition of a building which the defendant had put up on a portion of the land within four years next preceding the institution of the suit. That prayer was refused by the trial Court on the ground that the plaintiffs had failed to satisfy it that the portion of the land which was left open after the erection of the building in question was insufficient for the exercise of their rights. Both parties appealed to the lower Appellate Court. That Court has affirmed all the findings arrived at by the trial Court and has dismissed both the appeals and upheld the decree passed by the trial Court. The defendant has come up to this Court in second appeal. The plaintiffs have submitted to the decree. The Courts below have examined the evidence produced in the case with great care. The findings recorded by the lower Appellate Court are these:.the entire evidence led by plaintiffs is of a reliable character. It proves without any doubt that Holi has been burnt over the disputed land, as a matter of right, since living memory, i.e. since no less than 75...years I find that the residents of mohallas Mianganj, Phapala, Dhusran, Garibanan and Kaliyanganj have been burning Holi over defendant's disputed land since time immemorial as a matter of right, and that defendant has completely failed to prove that this right was exercised with his or his mother's permission.... I hold that the customary easement set up by plaintiffs is not unreasonable; the easement in question is definite, not only as to the place where it is exercised, but also as to the persons who are entitled to exercise it, viz. the residents of the mohallas referred to above, and that it has been exercised openly, as a matter of right, and without any force or permission.... I find that plaintiffs have acquired a customary right of easement to burn Holi over the land situated between the disputed shop (shown in red colour in map Ex. OO) and the Kothi of Lachmi Narain Reoti Prasad shown in the same map and to perform the other acts incidental to it.

2. The learned Counsel for the defendant-appellant, accepting the findings of fact recorded by the Courts below, has argued that the customary right set up by the plaintiffs in this case is an unreasonable right and should not be recognized by the Courts. He has cited the case in Kuar Sen v. Mamman (1895) 17 All. 87. in that case the findings of fact recorded by the District Judge were that the defendants had acquired no right by prescription to use the land in question or the chabutra in question and that no custom to use the land or chabutra had been established. The learned Judges in their judgment observe at pagers 90.91 of the report:

it is obvious from the findings of the District Judge that no easement by prescription had been proved in this case. All that was proved, according to the findings of the District Judge, was that various mirasis, whose connexion with each other is not established, have within a period of 20 years or so placed tazias on the land and sung there.... What we have to consider is, does the fact which the District Judge found - that various mirasis whose connexion with each other wins not proved, had within a period of 20 years or so placed feizias on the land and sung there - unexplained, necessarily in law lead to the conclusion that there was a local custom by virtue of winch the easement now claimed by the defendants was acquired?

3. It was an appeal under Clause 10 of the I letters Patent against a decision of a learned single Judge who had reversed the decree pursed by the District Judge and had observed in his judgment : vide Mamman v. Kuar Sen (1894) 16 All. 178 at page 179:

There was evidence in the case that the mirasis to which caste the appellants belong, had for a period of 20 years or so placed tazias on the disputed plot and sung there.... In my opinion, the facts found by the District Judge are sufficient to establish the custom set up by the appellants.

4. The learned Judges who heard the appeal under the Letters Patent allowed the appeal and observed in the last paragraph of their judgment:

We cannot Kay that in law the District Judge was bound, on the evidence before him in the first appeal, to hold that a local custom under which the defendants could lawfully and adversely to the plaintiff go upon his land or erect a chabutra there was established. Under such circumstances we allow this appeal....

5. It will thus be seen that the case is no authority for the proposition that the right claimed in that case, or the right claimed in the case before us, is a right of a character which cannot be recognized by the Courts. There are numerous authorities that such rights can be acquired and are recognized by the Courts and relief is granted to the persons who had acquired such rights. Reference may be made to Ashraf Ali v. Jagnnath (1884) 6 All. 497 and Rajab Ali v. Rajjoo Khan (1914) 1 A.I.R. All. 416. In addition to the cases mentioned in the judgments of these two rulings, we may also refer to the case in Hall v. Nottingham (1875) 1 Ex. D. 1. In our judgment the decree passed by the Courts below in favour of the plaintiffs is correct. Accordingly we dismiss this appeal with costs.


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