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Vidya Sagar and anr. Vs. Ram Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 91 of 1970
Judge
Reported inAIR1976All415
ActsEasements Act, 1882 - Sections 15
AppellantVidya Sagar and anr.
RespondentRam Das and anr.
Appellant AdvocatePradeep Kant, Adv. for ;U.C. Srivastava, Adv.
Respondent AdvocateVishal Singh, Adv.
DispositionAppeal allowed
Excerpt:
.....1882 - user of mend existing between fields - generally not objected - permissive in nature - no easementary right. - - the trial court dismissed the suit holding that ram das had failed to establish that he had acquired any easementary right to use the land in dispute as a passage and as far as the claim of easementary necessity was concerned the finding was that an alternative passage was available to the plaintiff for approaching his fields and the claim could not be sustained on the basis of easement of necessity. this submission appears to be well-founded. 340. the trial court had, for good reasons, discredited the oral evidence of the plaintiff and the lower appellate court did not discuss the evidence of plaintiff's witnesses to indicate how he considered their testimony to be..........the western part of plot no. 340 to vidya sagar, defendant no. 1 appellant. there existed a 10 ft. wide passage over plot no. 340 in western extreme where it meets plot no. 354. the plaintiff claimed to have been using this passage for going to his southern fields and had also been taking his bullocks and cows over this passage to his fields. he, therefore, claimed having acquired easementary right by prescription over this passage. it was alleged that the appellant vidya sagar had made an encroachment over this passage by constructing an ahata. tt was further alleged in the plaint that the disputed passage, which had been encroached upon by vidya sagar, was the only passage by which the respondent ram das could reach his fields and a claim was also set up on the basis of easement of.....
Judgment:

O.P. Trivedi, J.

1. This is a second appeal by Vidya Sagar and Ram Sunder, defendants 1 and 2, respectively; Ram Das plaintiff-respondent No. 1 filed a suit against Vidya Sagar and Ram Das, defendants 1 and 2, Puddan defendant No. 3 and Razi Haider defendant No. 4. The plaint allegations were that the plaintiff held certain agricultural plots mentioned in para 1 of the plaint; to the North of these plots exists plot No. 340 which originally belonged to Puddan, respondent-defendant No. 3, and to the immediate West of the said plot there is plot No. 354 in the tenancy of Ram Sunder, defendant No. 2. Puddan sold the western part of plot No. 340 to Vidya Sagar, defendant No. 1 appellant. There existed a 10 Ft. wide passage over plot No. 340 in western extreme where it meets plot No. 354. The plaintiff claimed to have been using this passage for going to his southern fields and had also been taking his bullocks and cows over this passage to his fields. He, therefore, claimed having acquired easementary right by prescription over this passage. It was alleged that the appellant Vidya Sagar had made an encroachment over this passage by constructing an Ahata. Tt was further alleged in the plaint that the disputed passage, which had been encroached upon by Vidya Sagar, was the only passage by which the respondent Ram Das could reach his fields and a claim was also set up on the basis of easement of necessity. On these facts and allegations the plaintiff prayed for a decree for demolition of constructions made on the Ahata by Vidya Sagar and for restoration of his passage. The contesting defendants 1 and 2 denied existence of any passage between plots Nos. 354 and 340. They also denied that the disputed land was ever used by the respondent Ram Das as a passage to his fields. The trial court dismissed the suit holding that Ram Das had failed to establish that he had acquired any easementary right to use the land in dispute as a passage and as far as the claim of easementary necessity was concerned the finding was that an alternative passage was available to the plaintiff for approaching his fields and the claim could not be sustained on the basis of easement of necessity. The suit having been dismissed Ram Das appealed and the District Judge allowed the appeal holding that there was a 5 Ft. wide passage between plots Nos. 354 and 340 and the respondent Ram Das had succeeded in proving that he had been passing over this passage to his fields and also taking his bullocks through it for a statutory period and had thereby acquired right of easement by prescription. The judgment and decree of the trial court were set aside. Defendants 1 and 2 were directed to remove the construction which, on demarcation, was round to fall within their plots. It is in these circumstances that the defendants have come to this Court in second appeal.

2. I have heard learned counsel for the parties. The first submission is 'hat no case of acquisition of easementary right by prescription was set up in the plaint and, therefore, the lower appellate court was in error in spelling out a new case of that kind for the plaintiff. This submission, however, does not appear borne out from the plaint because in para 1 of the plaint there was an averment suggesting long user of the disputed land as a passage.

3. The next submission is that there was no evidence to support the lower appellate Court's finding that there was 10 Ft. wide passage between plots Nos 354 and 340 and that the respondent had been using any such passage either for himself going to his fields or taking his bullocks to the fields. In this connection it is submitted that all that was established from the evidence of defendant's witnesses was that there was a Mend between these two plots and it was this Mend which was being used by Ram Das for going to his fields and for taking his bullocks but it was submitted that this was permissive use of the Mend and there was no evidence that the plaintiff had been using the Mend as of right within the meaning of Section 15 of the Indian Easements Act so as to acquire a right by prescription. This submission appears to be well-founded. In his finding on acquisition of easementary right by prescription the lower appellate court appears to have relied mainly on the statements of defendants' witnesses namely, Gharib (D.W. 2), Sarwar (D.W. 3) and Puddan (D.W. 4) but he lost sight of the fact that those three witnesses only stated that there was a I Cubit wide Mend existing between plots Nos. 354 and 340 and that Ram Das had been using this Mend for going to his fields and for taking his bullocks to his fields. The defence witnesses nowhere admitted the existence of a passage between these two plots or on plot No. 340. The trial court had, for good reasons, discredited the oral evidence of the plaintiff and the lower appellate court did not discuss the evidence of plaintiff's witnesses to indicate how he considered their testimony to be credible or reliable. On the question of existence of passage and the width of passage there was discrepancy in the statements of plaintiff's witnesses. Whereas according to plaintiff (P. W. 1) the width of passage was 7-8 Ft. according to P. W. 2 it was 5 Ft. and according to P. W. 3 it was little over 3 cubits. Further, there was discrepancy between pleading and evidence also. Whereas in the plaint the suggestion was that the passage was 10 Ft. wide, in the witness box the plaintiff stated that it was 7 or 8 Ft. wide. I am of the opinion that this is a case in which this Court is entitled to interfere with the finding of fact recorded by the District Judge on the question of acquisition of easementary righ by prescription because he did not apply his mind to the ingredients of Section 15 of the Easements Act. Section 15 provides that a person acquires right by prescription where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption and for 20 years. He did not try to determine whether the user of the plaintiff was as of right or permissive. In my opinion there was no reliable evidence to support the lower appellate Court's findings about the existence of a 5 Ft. wide passage between plots Nos. 354 and 340 and all that was established from the admissions of defence witnesses was that there was a 1 cubit wide Mend existing between these two plots and it was this Mend which was being used by the plaintiff as a passage. It is common knowledge that in this country people pass on the Mend of a field without the person holding the field raising any objection. The mend of a field is permitted to be used by people in this way traditionally with reciprocal understanding. Such user of the Mend for going about must, therefore, be presumed to be permissive and has no foundation in any right within the meaning of Section 15 of the Easements Act It was held in the case of Smt. Bailey v. Rama Shankar Lal : AIR1975All461 that use of ridges of a field for passing to and fro would always be permissive user. With this view I am in respectful accord. This view is supported also by a Division Bench authority of the Madras High Court in the case of Kunjammal v. Rathnam Pillai (AIR 1922 Mad 5). In that case a Bench of the Madras High Court approved the observations of Justice Baneriee in Sheikh Khoda Buksh v. Sheikh Tajuddin ((1904) 8 Cal WN 359) and observed:

'In India there are conditions and circumstances such as nature and character of the servient land, the friendship or relationship of parties to be taken note of, before a court can come to the conclusion that the exercise of a right of way can be held to have been as of right.'

4. 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. No easementary right, therefore, can be acquired in this country by use of a Mend as a way unless there is clear evidence of such user as a matter of right. I am, therefore, of the Opinion that the finding of the lower appellate Court that a right of way was acquired by respondent Ram Das over the Mend existing between plots Nos. 340 and 354 cannot be sustained in law in view of the requirements of Section 15 of the Indian Easements Act. The claim was rightly rejected by the trial court on the ground of necessity in the face of evidence of an alternative route being available to the respondent. In the result the appeal must succeed.

5. The appeal is accordingly allowed and the judgment and decree dated 19-2-1970 passed by the District Judge, Sultanpur, are set aside and the Judgment and decree of the trial Court dated 9-5-1969 are restored. The appellant will get costs of this appeal from the contesting respondent No. 1.


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