1. This is a defendant's appeal (sic) out of a suit brought by four plaintiffs for a declaration that the plaintiffs have a right of easement for using the lane indicated by letters Q. A. B. C. D., in the plaint map and that certain constructions made by the defendant indicated by the letters A., B., C. and D., may be demolished. The Courts below have decreed the plaintiff's claim by ordering demolition of certain constructions north of it in the Commissioner's map. Out of respect for the very able arguments which have been advanced before me by Mr. Pandey and Mr. Pathak on behalf of their respective clients, I propose to notice specifically almost all the points raised by them and to deliver a fairly detailed judgment.
2. The case as set forward in the plaint was that the plaintiffs and their ancestors had been going from their houses to the southern and western portions of their village as well as to their fields and groves by passing through the lane indicated in the sketch map and that loaded bullocks, horses and elephants had also been coming to and going from the houses of the plaintiffs through this very passage. They further go on to state that the plaintiffs and their predecessors had been using as of right the aforesaid passage for several years and had been using it without any interruption as a passage for vehicles, bullocks, etc., and therefore the plaintiffs have a right of easement in respect of the aforesaid passage for every kind of use and with the exception of this there is no other passage for the use of these plaintiffs in this direction. The words used in the vernacular are 'galli,' 'rasta' and 'rah' and there is also the expression 'ashaish' used in the plaint. It is argued by Mr. Pandey that the case set forward in the plaint is a case of the acquisition of a right of easement under Section 15 of the Act. It is however argued by Mr. Pathak on behalf of the plaintiffs that they did not plead Section 15 either in terms or by implication. They pleaded a right of way based on custom and immemorial user and also on implied grant. The Courts below have not regarded this right as a right of easement under Section 15 but have uniformly spoken of it either as a village path-way or as a right of easement based on immemorial user. The lower appellate Court has also relied on cases which are applicable to the case of a grant or agreement. Nowhere in the judgments of the Courts below is there any mention of the conditions which are laid down under Section 15, Easements Act, and I am of the opinion that Section 15 was not pleaded and is not applicable to the facts of the present case.
3. We have then got to see what findings of fact have been arrived at by the Courts below. It has been held that the brick dalan in suit made by the defendant is a new construction and has not been made on any old foundation. It has also been found that the land in suit is rasta land and that the plaintiffs used to pass over it and used it as a way. The lower appellate Court says that the evidence adduced by the plaintiffs clearly establishes that the lane in suit was used by them as a way for going to and from their houses and they have acquired a prescriptive right of easement to the use over such lane and the plaintiffs can claim a right of easement of way based on immemorial user and that they have established such right by the evidence on the record. There cannot be the slightest doubt that both the Courts below have regarded the evidence produced by the plaintiffs as more reliable than the evidence produced by the defendant. The Court of first instance distinctly says that
the plaintiff's evidence is far more reliable than the defendants.
4. That evidence shows that this lane has been used as a passage for generations and indeed there is on the record a settlement map Ex. (1), dated 1879-80 which shows the existence of the present way. It is thus clear that this way has been in existence for over 50 years. The plaintiffs' evidence also shows that bullock carts and loaded animals have been passing by this way and on festive occasions horses and elephants have also been passing by this route. At the present moment at the spot where demolition has been ordered, according to the finding of the lower appellate Court, the way is quite insufficient for a man to pass through with load on his head.
5. The case of the plaintiffs therefore falls under Section 18, Easements Act, and. according to a number of cases it is not necessary for the plaintiffs to establish any special damage under those circumstances. In the case of Karain Singh v. Dal Chand A.I.R. 1924 All 159, it has been held that any kind of easement recognised by custom of the Provinces would surely fall within the meaning of the customary easement. In that case the defendant tenants were allowed a right of way over the land of the plaintiffs zamindars who had attempted to block the tenants passage and the Full Bench case of Udit Singh v. Kashi Ram (1892) 14 All 185, on which great reliance was placed by learned Counsel for the appellant before me was also considered and held not to have any application inasmuch as the case before Daniels, J., was a case of the acquisition of a right of easement under Section 18 and not a case of an acquisition of a right of easement under Section 15, and no question of a tenant who is in occupation of land by virtue of a licence from a zamindar acquiring an easement against the zamindar himself was in contemplation. There are several other cases where such an acquisition of a customary right of easement has been recognised. I may mention the case of Partap Singh v. Nand Kishore : AIR1928All591 , and the case of Chintamanirao Appasahab v. Ramchandra Govind A.I.R. 1932 Bom. 130. In the latter case it was held that the provisions of Section 15 are not exhaustive and prohibitory of other modes of acquiring easements and the Court may presume the existence of a grant at some distant period of time. In the case before me the existence of such a grant may be presumed and the lower appellate Court has distinctly held that the plaintiffs have acquired a right of easement of way based on immemorial user.
6. It was also contended before me that the plaintiffs were claiming either a right of easement under Section 15 or a right of public path or a right of village pathway. I have already held that the plaintiffs have not been claiming a right of easement under Section 15 and throughout the conduct of the case in the Courts below nobody understood it as a right of easement under Section 15. On the point as to whether the plaintiffs were claiming a public right of way or right of village pathway the defendant's contention is that in either case they have got to prove special damage and there is no finding by either of the Courts below that any special damage was sustained. It is true that the consensus of authority seems to be that if a person alleges that there is a public path which has been infringed by the defendant, before the plaintiff can maintain an action for the avoidance of the infringement special damage must be proved. The leading case on the subject is the case of Satku v. Ibrahim Aga (1877) 2 Bom 457, but a note of disagreement has been sounded by the Madras High Court in the case of Velan Pakkiri Taragan v. Subbayan Samban AIR 1919 Mad 674. Even, if it be conceded that in the present case the plaintiffs have got to prove special damage, I am. of the opinion that that special damage has been established. The: plaintiff Kunj Behari, has gone into the witness-box and has stated that: loaded bullocks and carts used to pass by this way and on occasions of marriage elephants and horses used to take this route, and it is clear that at the present moment the way is so narrow that even a man with load on his head will have some difficulty. The case of Hanuman Prasad v. Raghunath Prasad AIR 1924 All 715 is of some importance. In this case it was held that a right acquired by prescription of immediate access from private property to a public highway is a private right distinct from the right of the owner of that property to use the highway itself as one member of the public, and any interference with such a right of access which prevents a person entitled to it from bringing cart and carriages up to his house also causes particular damage entitling him to maintain a suit. The facts in that case are somewhat similar to the facts of the present case and the plaintiffs in that case were recorded as having two capacities, one as ordinary members of the public in relation to the right and secondly as having a particular right in it by virtue of the long user. Looking at the Commissioner's map paper No. 22C of the record it would become quite clear that the four plaintiffs have their houses round about this lane towards the North and in fact theirs are the only houses on the eastern side. The lane towards the south abuts the pucca road from Ghazipur to Ballia.
7. It is however fairly clear that the present lane cannot be considered a public highway in the sense in which it is ordinarily understood. It is more or less a village pathway wherein the residents on either side of the pathway and round about may be considered to have a right acquired by long user of passing to and fro and this right is referable to a grant or agreement on the part of the zamindar. In such a case it is not necessary to prove any special damage and the residents of the neighourhood can maintain an action for the avoidance of the obstruction without proving any special damage. That seems to be the view of the Calcutta High Court and the case of Harish Chandra Saha v. Harish Chandra Chakravarti AIR 1928 Cal 622, and the case of Harish Chandra Saha v. Pran Nath AIR 1921 Cal 405, may be mentioned. The case of Sh. Khoda Baksh v. Sh. Tajuddin (1904) 8 C W N 359 relied on by Mr. Pandey has no application inasmuch as that was a case under Section 26, Limitation Act, corresponding to Section 15, Easements Act. Even if a proof of special damage were necessary it is clear that a very small amount of inconvenience would entitle the plaintiff to the relief claimed and it was held in Ram Chandra v. Joti Prasad (1911) 33 All 287 that if it becomes necessary for the plaintiff to make a detour by reason of the obstruction to the pathway that constitutes special damage as would justify the plaintiff instituting a suit for removal of the constructions and according to the findings of the Courts below it is quite clear
that the path in dispute is the nearest way to the plaintiffs' house and in fact the main way
and they will have to make a long detour if that path is blocked.
8. There is a finding by both the Courts below in order to afford a reasonable passage to the plaintiffs the way should the 8 karis in width at the point in dispute and at the letter T in the Commissioner's map. This is a finding of fact and cannot be challenged in second appeal. I am therefore of the opinion that the view taken by the Courts below is correct and I dismiss this appeal with costs. Leave to file an appeal by way of Letters Patent is granted.