LACHHI Vs. GHANSARA SINGH

JUDGEMENT

(1.) This second appeal filed by the plaintiffs arises out of the judgment and decree dated 30th April, 1968 of the District Judge, Dharamsala. Lachhi Ram and five others who are the plaintiffs, came to Court with the allegations, that Ghansara Singh and two others who are the defendants, being proprietors of Khasra Nos. 1025 and 1048 of Tikka Andreta of Palampur Tehsil, have erected a hedging so that their cattle which used to graze over the disputed land, have been stopped from going there. The plaintiffs based their claim on the allegations, that they as well as their ancestors have been using the disputed land for pasturage and their cattle used to go there and rest for the day. It was only recently that the defendants created the obstruction and hence the plaintiffs claimed for a declaration that they had acquired a right of pasturage and that a permanent injuncion is also to be granted in their favour and against the defendants, restraining the latter from interfering in the plaintiffs' grazing rights.

(2.) The defendants contested the suit on the allegations, that the plaintiffs never grazed their cattle inside the disputed land and that they did not acquire any right of pasturage. The contentions of the plaintiffs found favour with the trial Court and the suit was decreed. However, the learned District Judge in first appeal disagreed with the findings of the learned Subordinate Judge and dismissed the suit.

(3.) The plaintiffs have now come up in second appeal and the only point of contention is, as to whether the plaintiffs have acquired any right of the nature of easement for pasturage. After hearing the learned counsel for both the parties and after a careful reading of the record, I cannot help concluding, that the Courts below have not given proper consideration to the points that were really at issue between the parties. They should have understood the distinction between an easement acquired by prescription under Section 15 of the Easements Act (Hereinafter to be referred as the Act) and a customary easement as defined in Section 18 of the Act. In order to bring out this distinction so that the parties get their proper rights, the judgments of the learned appellate Judge as well as of the learned Subordinate Judge shall be set aside and the case shall be remanded.