1. In village Katera Jaferabad, in the district of Meerut, there are five johars (small tanks) including the one which is now in dispute and which stood on plot No. 431A. A part of the johar in dispute has now been levelled up and brought under cultivation. Lala Jugal Kishore, the lambardar of the village, had given the plot no lease to Nathu for cultivation. When Nathu started cultivating the land, the plaintiffs, who the some of the residents of the village, instituted the suit, which has given rise to this appeal, against Jugal Kishore and Nathu (defendants 1 and 2) to obtain a perpetual injunction restraining the defendants from cultivating the plot and a decree directing them to restore its condition as johar. Their case was that from time immemorial they and other residents of the village had been using the water of the johar for their cattle and taking earth from it for building and repairing their houses.
2. The defendants contested the suit on the ground that the plaintiffs alone were not entitled to maintain the suit as they had not complied with the provisions of Rule 8 of Order 1, Civil P.C., and that there was no johar on the plot in suit and the plaintiffs have not acquired any customary or prescriptive right of easement to take water or earth from the johar in suit and there were other johars in the village which were being used for the purpose mentioned above.
3. The trial Court held that there was a johar on the plot in dispute from time immemorial; that the plaintiffs and other residents of the village have acquired a customary easement to take their cattle to the johar in suit for drinking water and to take earth for building and repairing their houses; and that the plaintiffs having sued in their personal capacity the suit was maintainable in spite of the non-compliance with the provisions of Order 1, Rule 8, Civil P.C.
4. The defendants filed an appeal and challenged the finding of the trial Court that the plaintiffs had acquired a customary easement of the nature claimed by them and the plaintiffs filed cross-objections claiming further relief by way of direction to the defendants to restore the plot to its original condition of a johar. The lower appellate Court uphold the findings of the trial Court and considered the decree given by it as 'eminently just and reasonable'. Both the appeal and cross-objections were dismissed. The defendant Jugal Kishore has preferred this appeal
5. The Courts below have found that there is a johar on plot No. 431A. The lower appellate Court has further found that there are five johars in the village; that there is a custom in the village which entitles the residents of the village to take their cattle to anyone of the johars for drinking water and they have been taking their cattle to the johar in dispute as well as to other johars; that they have been taking earth from the johars for building and repairing their houses, and that the residents of the village, including the plaintiffs, have acquired a customary easement to take water and earth from the tank, which has been infringed. Consequently, the suit was maintainable.
6. The wajib-ul-arz of the village mentions the rights which the residents of the village enjoy in the johars. After reciting that there are five johars in the village, it says that the cattle drink water in them (unse mawesh pani pite hain) and the residents of the village take earth for constructing their houses.
7. The learned Counsel for the appellant has, in the first place contended that the Court below was wrong in holding that the plaintiffs had acquired a customary easement. It has been pointed out that the Court failed to appreciate the distinction between a customary easement and customary right. The learned Judge in the Court below recognised the distinction between customary easement' which is appurtenant to some dominant tenement and is capable of existing without it, and 'customary right' which is acquired quite independently of any dominant heritage and vests in the inhabitants of a locality for their sole benefit. He also recognised the fact that customary rights were excluded from the operation of the Easements Act by virtue of Section 2 of the Act. He, however, based his conclusions on the analogy of illustration (a) appended to Section 18 of the Act, which reads as follows:
(a) By the custom of a certain village every cultivator of village tend is entitled, as such, to graze his cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the village breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.
It means that A could acquire the customary basement to graze his cattle on the common pasture in accordance with the custom after 'having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot.' Such a right must be distinguished from a customary right which is acquired independently of any dominant heritage and is vested in the inhabitants of a locality for their sole benefit. The right to take cattle to a tank for drinking water or to take earth from a tank is a customary right, which is not appendant to any heritage.
8. It must, therefore, be held that the plaintiffs have not acquired any customary easement, but under the custom recorded in the wajib-ul-arz the cattle of the residents of the village, including the plaintiffs, can go to any of the five johars to drink water and the residents of the village can take earth from the johars for constructing their houses, and these are the 'rights which the residents of the village have [been exercising from a long time.
9. In the next place, it has been argued on behalf of the appellant that
even a right of customary easement to enjoy a profit a prendre when claimed as unlimited and indefinite in its extent without any reference to the needs of their tenements is bad as unreasonable.
There was a johar on plot No. 431A. If the residents of the village are given the right to take earth for building and repairing their houses from the johar, it will not in any way affect the form of the johar the deeper it is dug up the more useful it would become as a johar. Consequently, such a right cannot be considered altogether unreasonable. There is, however, another aspect of this matter. Can the plaintiffs enforce their right to take their cattle to or to take earth for construction of their houses from any particular johar? A customary right of the nature claimed by the plaintiffs must be exercised in a reasonable manner. When they can take their cattle to or remove earth from anyone of the johars and it has been found that they have been taking cattle to and removing earth from anyone of them, it follows that the right can be reasonably exercised with reference to anyone of the johars. It was never intended that the right should be simultaneously exercised in all the johars; nor could it be exercised in that manner. Consequently, so long as there are other johars-not only one but four-it would be unreasonable for the plaintiffs or other residents of the village to insist on exercising their rights in any particular johar.
10. For the proposition whether 'the nature of the right enjoyed, and also the extent of the land over which it is exercised, are capable of reasonable modification and extension' reference may usefully be made to a decision of the Madras High Court reported in Ramaswami Iyer v. Secy. of State A.I.R. (18) 1931 Mad. 213. In that case it was observed at p. 216:
The land-owners' right of free enjoyment would only be limited by a reasonable exercise of customary rights and it would probably be held unreasonable to insist on drying nets over a large tract of land.
In the Secretary of State for India v. Mathura Bhai 14 Bom. 213, the following observations appear:.right of free pasturage, which certain villages enjoy according to the recognized custom of the country, and which was admittedly enjoyed by this village, does not necessarily confer the right of pasturage on any particular piece of land, although it may confer the right of having sufficient land set apart for the purposes of the village...but in the absence of special circumstances...pointing to the tank in question having been used for glazing by the villagers in exercise of a right other than and independent of the above right, the user can only be properly referred to that general right.
Therefore, the right to take cattle to or remove earth from any of the five johars does not, necessarily mean that it could be exercised over any particular johar so long as there were other johars in the village in which that right could be exercised
11. There is a reported decision of this Court in Ram Saran Singh v. Birju Singh 19 ALL. 172 where a similar question was raised with reference to the waste land over which the residents of a village grazed their cattle. In that case it was contended that, under the terms of wajib ul-arz, the defendants had acquired a permanent and perpetual title to pasture their cattle on the lands in dispute and that the zarmindars of the village had no right to reclaim or bring under cultivation any land which was being used as pasturage. The wajib-U-arz did not contain any undertaking or coveant by the zamindars not to reclaim or bring under cultivation any land which then was waste land. It was held that the permission given by the custom could not take away from the zamindars the power to reclaim waste land as it would amount to a serious inroad on the proprietary rights of the zamindars.
12. The case reported in Bhola Nath Nundi v. Midnapore Zemindari Co. 31 Cal. 503 also lays clown that the landlords could not be prevented from cultivating or executing improvements upon their waste land so long as sufficient pasturage was left for the persons entitled to graze their cattle over the
13. The learned Counsel for the respondents pointed out that the cases relating to waste lands had no bearing on the cases of the present nature But the principle laid down in the cases referred to above applies to the cases of the present nature with full force. The question whether any portion of the waste land or the land which is covered by water can be reclaimed by the zamindars and brought under cultivation raises similar considerations. There is no limitation on the powers of zamindars to cultivate any waste or tank land or to execute improvements thereon so long as there is no substantial interference with the rights of the tenants. There are five tanks in the village and if one of them is levelled up and brought under cultivation, the rights of the plaintiffs or other incidents of the village will not be materially affected.
14. The learned Counsel for the respondents pointed out that the defendants had not contended that there was sufficient water in the other four tanks and no specific issue was framed by the trial Court in that connection; that the mere existence of other johars and their accessibility was not sufficient to prove that they were sufficient for the exercise of the rights claimed by the plaintiffs and that the plaintiffs could exercise the right in anyone of the johars. and it could not be interfered with. A reference to the written statements filed by the defendants makes it clear that they had alleged that there were several other johars in the village near the plot in suit to which the cattle of the residents of the village go to drink water. The point is mentioned in the judgment of the trial Court; but it was not properly appreciated The lower appellate Court has found that there are five johars in the village including the one in dispute, and that the residents of the village take their cattle to and remove earth from all the johars. In view of this finding there is no room for argument that the other four johars : are not sufficient for the exercise of the right; claimed by the plaintiffs. In order to obtain relief it was necessary for the plaintiffs to prove that there was substantial interference with their rights and it was to sufficient for then? to prove that their rights were curtailed only to some extent. In the absence of proof of substantial injury the plaintiffs were not entitled to any relief. The plaintiffs can exercise their rights as before as there are still four johars in the village. Consequently, there has been no substantial interference with their rights.
15. Lastly, it was contended on behalf of the appellant that the plaintiffs were not entitled to maintain the suit without complying with the provisions of Order 1, Rule 8, Civil P.C. But in the view of the case which I am taking it is not necessary to decide that question.
16. I, therefore, allow this appeal, set aside the decrees passed by the Courts below and dismiss the plaintiffs' suit with costs throughout.