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M. Akhtar HusaIn Khan and anr. Vs. Collector of District Bareilly and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All623; 147Ind.Cas.272
AppellantM. Akhtar HusaIn Khan and anr.
RespondentCollector of District Bareilly and ors.
Excerpt:
- - my finding on this issue therefore is that any right that the plaintiffs may have acquired has been defeated by obstruction on the part of the appellant for more than two years prior to the filing of this suit. the issue however on which i, am required to give a finding clearly relates to section 15. some passages are referred to, for instance, in the cross-examination of khudayar khan, d......granted costs against defendants 1 and 2, and defendants 3 and 4 were ordered to bear their own costs. defendants 1 and 2 appealed to the lower appellate court. that court amended the decree to the effect that the plaintiffs including defendants 3 and 4 would give 20 feet along the main road as an entrance at the place most convenient to them, presumably from the east corner of defendants 1. and 2's small shop on the main road and defendants 1 and 2 will give 20 feet along the small road at the place most convenient to them. parties will bear their own costs throughout. defendants 1 and 2 have come in second appeal to this court and an issue was remitted to the following effect:have the plantiffs acquired an easement of right of way over the land of defendants 1 and 2 from the sarai.....
Judgment:

Bennet, J.

1. This is an appeal by defendants 1 and 2 against a decree of the lower appellate Court. The plaintiffs sued for and obtained a decree from the Court of first instance declaring that for costs, horses and pedestrians to reach the plaintiffs' shop in the disputed chowk there is a right of passage from the west through the Sarai road over the phar of the shops of defendants 1 and 2 and for perpetual injunction against defendants 1 and 2 ordering them to open that passage from any place they think convenient and never to block the passage again. The plaintiffs were granted costs against defendants 1 and 2, and defendants 3 and 4 were ordered to bear their own costs. Defendants 1 and 2 appealed to the lower appellate Court. That Court amended the decree to the effect that the plaintiffs including defendants 3 and 4 would give 20 feet along the main road as an entrance at the place most convenient to them, presumably from the east corner of defendants 1. and 2's small shop on the main road and defendants 1 and 2 will give 20 feet along the small road at the place most convenient to them. Parties will bear their own costs throughout. Defendants 1 and 2 have come in second appeal to this Court and an issue was remitted to the following effect:

Have the plantiffs acquired an easement of right of way over the land of defendants 1 and 2 from the Sarai Ahmad road on the west to the shops of the plaintiffs by user for a period of 20 years?

2. The finding of the lower appellate Court is in the negative. It is contended, however, by learned Counsel for the plaintiffs that the finding is defective. The finding on remand states:

My finding on this issue therefore is that any right that the plaintiffs may have acquired has been defeated by obstruction on the part of the appellant for more than two years prior to the filing of this suit.

3. The learned Counsel contended in regard to this that the Court should have come to a clear finding as to whether a right of easement had been acquired at some period by user for 20 years. But Section 15 of the Easements Act, lays down:

Each of the said periods of 20 years shall be taken to be a period ending within two year next before the institution of the suit wherein the claim to which such period relates is con-tested.

4. We are, therefore, concerned in this case which is a case claiming a right of easement for the plaintiffs, with a period of 20 years which is to end within 2 years of the present plaint. It is of no importance to the present suit Whether there was or was not a period of 20 years' user at some period beyond two years before the present plaint. It is obvious, for instance, that a period of 20 years' user in the fifteenth century would have no bearing on the present suit. The lower Court has found that there was no period of 20 years' user ending within two years of the plaint, and therefore, the plaintiff has not established a right of easement by prescription within the meaning of Section 15 of the Indian Easements Act. Some further argument was made by the learned Counsel in regard to a finding of fact which was expressed as follows:

The issue however on which I, am required to give a finding clearly relates to Section 15. Some passages are referred to, for instance, in the cross-examination of Khudayar Khan, D.W. 6, which, it is contended, go to show that the foes were charged for the use of the strip of land (phar) and not for crossing over it. There does however appear to me to be definite evidence that the light to cross this strip had been obstructed for some years back by Rasul Baksh. The statement of Khudayar Khan, D.W.6, is quite, clear on the point.

5. The learned Judge had before his mind the argument now put forward by learned Counsel for the plaintiffs-respondents to the effect that there was a payment by a defendant who is stated to be Rasul Baksh for the use of a strip of land and not for crossing it. But the Judge found on the facts that it was for crossing the strip of Land that the payment was made, and that there was the obstruction by the defendants of the crossing of the land in question. Such an obstruction shows that there was not a user 'as of right without interruption' within the meaning of Section 15 for the term in question. Where a person makes a payment for the use of land such user is by license and is not a user by right, and it is only a user by right which can give rise to a right of prescription within the meaning of Section 15 of the Easements Act. The use of the land by cartmen crossing it on payment to the defendants does not give rise to any prescriptive right because by making such a payment the cartmen acknowledge the title of the persons to whom they pay. This is a common mistake in the law of prescription. 1 hold therefore that the appeal succeeds and that the plaintiffs have not acquired a right of easement over the land in question. Accordingly I set aside the decrees of the lower appellate Court and dismiss the suit of the plaintiffs with costs throughout in favour of of defendants 1 and 2, appellants.

6. Some argument was made on behalf of defendant No. 3, respondent, and it was claimed by learned Counsel that he was not a necessary party in this appeal and that he should get his costs from defendants 1 and 2, appellants. The position of defendant 3 has been already noted in regard to the decrees in question. Defendant 3 was not interested to contest the appeal of defendants 1 and 2, as in this appeal defendants 1 and 2 asked that this Court should set aside all the decrees of the Courts below and dismiss the suit of the plaintiffs. Defendant 3 was therefore a pro forma respondent. It was not necessary for defendant 3 to enter any appearance in this Court, and the learned Counsel appearing for defendant 3 admits that he has not contested the appeal. His appearance here before me appears to have been due to another appeal which is not connected with the present appeal and which has been already disposed of. S.A. No. 1236 of 1929 by Bhairon Singh, defendant No. 3. Under these circumstances, I hold that defendant 3 should pay his costs in this Court and should pay his costs in the Court of first instance. As regards the costs in the lower Court I have already held in S.A. No. 1236 of 1929 that defendants 1 and 2 should pay the costs of defendant 3 in the lower appellate Court and of defendant 3 in that appeal in this Court for reasons therein stated, and that order stands.


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