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Ashok Pal Singh and ors. Vs. Moti Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 36 of 1954
Judge
Reported inAIR1956HP47
ActsEasements Act, 1882 - Section 15
AppellantAshok Pal Singh and ors.
RespondentMoti Ram
Appellant Advocate D.N. Vaidya, Adv.
Respondent Advocate D.R. Chowdhary, Adv.
DispositionRevision rejected
Cases ReferredChhotalal Bhaichand v. Babulal Sunderlal
Excerpt:
- .....property or rights of easement.'columns 2 and 3 of the schedule prescribe ,a period of 20 years limitation for such suits, commencing from the time, when the possession of defendant became adverse. section 3, as already pointed out, prescribed that there shall be no period of limitation as against the state. in other words, even if the possession of the defendant became adverse more than 20 years prior to the date of the suit, it was open to the darbar to sue for the possession of the immovable property involved or for the determination of the easement rights therein.section 3 of the amending act 1997 sm. makes the matter clearer by prescribing that there shall be no adverse possession against the state. it is true that easement rights are not the same as rights acquired by.....
Judgment:

Ramabhadran, J.C.

1. This revision petition by two plaintiffs was admitted by this Court on 23-11-1954, on the following point :

'Whether in the erstwhile Mandi State easement rights could be acquired against the State or not.'

2. I have heard learned counsel for the parties. Both the Courts below have answered the question in negative. The learned trial Judge has pointed out that under the Mandi Limitation Regulation, (Regulation V of 1975 Sm.), there was no period of limitation as against the State, vide Section 3 of that Regulation.

Before the learned District Judge, it was urged by the respondent's learned counsel that under the Mandi State Laws, no rights of easement could be claimed or acquired against the Darbar property. Mr. Thakar Parshad, who appeared for the appellant in that Court, did not challenge the correctness of that proposition, vide the judgment of the District Judge.

3. In this Court, Mr. D. N. Vaidya, for the petitioners argued that Section 3 of Regulation V of 1975, did not mean that easement rights could not be acquired against the Darbar. He also invited my attention to the Mandi Limitation Amendment Act of 1997 Sm. Under Section 3 of the Amendment Act, Section 3 of the Regulation V of 1975, was recast as follows : 'There shall be no adverse possession against the State.'

4. Learned counsel for the respondent pointed out that the provisions of the Indian Easements Act, were first applied to Mandi State on 25-12-1948 by means of the Himachal Pradesh (Application of Laws) Order, 1948, issued under Section 4, Extra-Provincial Jurisdiction Act, 1947. It is not disputed that there was no corresponding Act previously in force in Mandi. We have, therefore, to see, what is the intention behind Section 3 of Regulation V of 1975, which ran as follows : 'There shall be no period of limitation against the State.'

5. I find considerable force in the argument of the learned counsel for the respondent that it was open to the Darbar to file a suit at any time and seek relief concerning any Darbar property. For instance, it was open to the Darbar to sue for an injunction restraining persons from passing over its lands, although, they may have been doing so for more than 60 years. In the schedule to Regulation V of 1975, we come across item No. 2, 'suits for the possession of immovable property or rights of easement.'

Columns 2 and 3 of the schedule prescribe ,a period of 20 years limitation for such suits, commencing from the time, when the possession of defendant became adverse. Section 3, as already pointed out, prescribed that there shall be no period of limitation as against the State. In other words, even if the possession of the defendant became adverse more than 20 years prior to the date of the suit, it was open to the Darbar to sue for the possession of the immovable property involved or for the determination of the easement rights therein.

Section 3 of the Amending Act 1997 Sm. makes the matter clearer by prescribing that there shall be no adverse possession against the State. It is true that easement rights are not the same as rights acquired by adverse possession. But the fact remains that it was open to the State, at any time, to put an end to rights which had been enjoyed by persons for any length of time, whether they had been acquired by way of easement or otherwise.

6. I am, therefore, of the view that the Courts below were right in holding that the period, prior to the merger of Mandi State in the Union of India, during which the rights may have been enjoyed by the petitioner, cannot be taken into consideration for computing the 20 years period necessary under Section 15, Indian Easements Act. Even if we assume, for the sake of arguments, that the period subsequent to the Amending Act of 1997, can be taken into account, even then the total period falls short of 20 years.

7. I may refer to the following authorities cited on both sides.

8. Mr. D. N. Vaidya, for the petitioners cited :

(a) 'Saya Ram Das v. Lahore Electric Supply Co. Ltd.', 1942 Lah 124 (AIR V 29) (A). There with reference to Section 26 (2), Limitation Act, a Division Bench of the Lahore High held that:

'The word 'belongs' in Section 26 (2) should be given its plain meaning or should not be interpreted by a forced construction as equivalent to has belonged'. Therefore, where an easement is claimed over some property in the hands of a transferee from the Crown, the right would be acquired against the transferee, to whom the property belongs, by the expiry of a period of 20 years within two years next before the suit brought. The 60 years' rule does not apply.' This ruling has no application on the facts of present case. As already shown, prior to merger, no period of limitation was prescribed for the State.

(b) 'Jehangirji v. Nariman', 1953 Bom 318 (AIR V 40) (B). There following 1942 Lah 124 (AIR V 29) (A), a Division Bench of the Bombay High Court indicated that:

'When at the date of suit the property over which the easement is claimed, belongs not to the Government, but to a private individual, either by transfer or otherwise from the Government, the period prescribed under Section 15 for establishing; easement right is 20 years and not 60 years. The person claiming the right as against the transferee from Government can take the benefit of the period of user as against the Government for establishing his claim against the transferee.' This ruling too will not help the petitioner, because possession or user, however long, would not have availed against the former Mandi State.

9. Mr. Chowdhary, for the respondent, cited:

(a) 'Lalit Kishore v. Ram Prasad', 1943 AH 362 (AIR V 30) (C). There a Division Bench of the Allahabad High Court pointed out that :

'A person, who had begun a period of prescription against the Government might continue the period as against the Government's transferee as such. But a person claiming an easement against a transferee from the Government, has an option. He can either base his claim upon user for a period of sixty years against the Government and the transferee, as such, of the Government, or, if he so prefers, he can ignore the period of prescription against the Government and base his claim entirely upon user for a period of twenty years while the property has been in the possession of the transferee.' This ruling, too is not applicable to the present case, because, here the Indian Easements Act came into force only in 1948; prior to that, the State was protected against limitation.

(b) 'Chhotalal Bhaichand v. Babulal Sunderlal', 1951 Sau 5 (AIR V 38) (D). There the facts were that under the former Jam Nagar State Law, no one could acquire easements rights against the Government. A Division Bench of the Saurashtra High Court, accordingly, held that: 'Therefore, the period during which a dominant owner has been discharging water from his house on the servant tenement, when it is of Slate ownership, cannot be tacked on to the period during which he is in the process of acquiring the right of easement against a private person, after the sale of the servient tenement by the State to such private person.'

10. It is true that under the Mandi Laws there was no specific provision debarring person from acquiring easement rights against the State, but as already pointed out earlier, Section 3 of Regulation V of 1975, read with Section 3 of the Amendment Act of 1997, would, in my opinion entail the same result. It is common ground that the property in question belonged to the State right upto 1951 A.D.

11. In view of all that has been said above, I see no reason to interfere with the decision of the Courts below.

12. I reject the revision petition accordingly. Since however, this is the first time, that this matter has been before this Court, I leave the parties to bear their respective costs of this petition.


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