NARASAPPA Vs. NANJAPPA

JUDGEMENT

(1.) As many as 8 plaintiffs, including the present three appellants each of whom owns the several survey numbers referred to in para 2 of the plaint, brought a suit against the defendants for a declaration of their easementary rights to drive their carts and to pass through certain survey numbers belonging to the defendants and for a permanent injunction to protect their right. That suit was dismissed by the Munsiff whose decision has been confirmed by the Subordinate Judge. Plaintiffs 1, 2 and 6 alone have come up in second appeal.

(2.) The learned Munsiff, on a detailed consideration of the evidence, oral and documentary, came to the conclusion that "the plaintiffs had miserably failed to establish that they had acquired a right of easement by way of prescription regarding the alleged suit pathway in Section Nos. 4, 6 and 70". The learned Subordinata Judge concurred with him in holding that the suit pathway A B C never existed. He thought that some of the traces of the pathway in Section Nos. 4 and 6 would indicate that during the summer season when there was no crop on the lands, bullock carts were permitted to pass and that the same did not establish a right of easement in the plaintiffs. The owners only of Section Nos. 6 and 71 have come up in second appeal and the rest of the plaintiffs have dropped out.

(3.) It is contended by Mr. K.R. Sethu Rao, learned Counsel for the appellants, who has argued the appeal fully before me, that the evidence of the Commissioner P. W. 5 Mr. Srikantiah is clearly to the effect that there must have been a cart track along the line A B C and that even Mr. Krishna Rao, D. W. 1, another Commissioner who has been examined for the defendants has deposed that there was no other convenient path to go to Section No. 71. The Courts below have rightly pointed out that the present is not a case of establishment of an easement of necessity and Mr. Sethu Rao does not put his case on that footing. He represents that the right to pass along the line A B C is not merely a right of easement referred to in S. 15, Easements Act, but is really in the nature of a mamool right referred to in Section 18 of that Act, and argues that if the right claimed by the plaintiffs falls under S. 18 they have 12 years within which they could sue to establish their right and that the same would not depend on the proof of mere long user for over 20 years. He further urges that merely because P. W. 4 Shivanna has stated in his evidence that the plaintiffs were prevented from using, this pathway some 3 or 4 years before the suit, that would not stand in the way of their suit and that Section 15, Easements Act, would not be a bar. For this position he has relied on a case reported in -- 'Muthu Goundan v. Anantha Goundan', AIR 1916 Mad 1001 (A), where Sadasiva Aiyar J. has made the following observations at page 1005 of the report: "But the Statute (Easements Act) is remedial, and is neither prohibitory nor exhaustive. A man may acquire a title under it who has no other right at all, but it does not exclude or interfere with other titles and modes of. acquiring easements". In the case before him the right of way was being claimed to pass over the path which was called a mamool path, as in this case also And when we come to examine that case it is found that the High Court merely confirmed the conclusions which the lower appellate Court had come to viz.: that the plaintiff and his predeces-sors-in-title to the dominant tenement were using the plaint path for much longer than 20 years before the interruption took place in September 1910 by the act of the defendants putting up the fence, and that the suit was brought in July 1911. Though the defendant objected to the plaintiff using the way in 1907 or 1908 the plaintiff did actually continue to enjoy the right of way till the fence was put up in September 1910. In view of that finding on the evidence the observations of Sadasiva Aiyar J. would be 'obiter' as the plaintiff in that case would have been able to establish his case without the assistance of any mamool right. Moreover by merely describing the path as a mamool path the dominant owner cannot escape the operation of S. 15: Section 18 provides for customary easements which may be acquired by virtue of a local custom. The two illustrations to that section refer to the right of every cultivator of a village to graze cattle in a common pasture and to the right of privacy respectively. If by a right to pass along a mamool path is meant a right to pass along a public way or a pathway belonging to the village, a right which may be established by immemorial user, it would not be really an easement but a property right inherent in every one in the village who has therefore a right to use it. The claim of a dominant owner to go over another's land for certain purposes or generally as claimed in this case is a right which he can acquire under the other relevant sections of the Easements Act either by prescription or by necessity and would clearly be different in nature from a customary easement provided for in Section 18 or a proprietor's or a citizen's right to use a public path or a path belonging to himself and the rest of the community. If an easement to pass over another's lands could also be brought under Section 18 then the provisions of Section 15 would be redundant and I do not think that Section 18 was meant to be used in that way. I do not think therefore that in the circumstances of this case the plaintiffs' rights can be brought under any head other than an ordinary prescriptive right of easement which has to be adjudicated upon under the provisions of Section 15. As I have already pointed out the con-current findings of the Courts below are clearly against the right claimed in the plaint. If the plaintiffs have failed to establish that they had been continuously, openly and as of right making use of this path for over 20 years, and that they had brought the suit within two years of the effective obstruction to their right, they are bound to fail.