PRABHAVATI DEVI Vs. MAHENDRA NARAIN SINGH

JUDGEMENT

(1.) Defendant first party, an ex-military personnel is the appellant. He died. His heirs have been substituted in his place. The suit was filed under order 1 rule 8 of the Code of Civil Procedure in the year 1968. It was for a declaration that plote No. 1014 of Khata No. 256 of village Rampur police Station Lakhisarain in the district of Monghyr was Gair Mazrua Am Houj (a water reservoir) belonged to the villagers who were raiyats and they had easement to take water from that and to irrigate their land and that the settelmant of 5 acres out of it made with the appellants by the Land Reforms Deputy Collector was illegal, void and without jurisdiction. It was also prayed that the defendants be permanently restrained from going upon the land. The case of the plaintiff was that water was stored in survey plot No. 924 and 1014 which made one compact and from which water was used as Ahars for irrigating their land from time immemorial, although in the fard-ab-pasi and in the Kesra-ab-pasi only survey plot No. 924 was mentioned as representing the whole Ahar. It was also pleaded that the suit plot No. 1014 did not vest in the State of Bihar. It may be pointed out that plot No. 924 measures 13.26 acres and the suit plot 1014 measures 6.75 acres. Plot No. 924 is not in dispute. The learned subordinate Judge, Monghyr decreed the suit holding that the suit plot No. 1014 and plot No. 924 were one compact block which was used as Ahar and water was being used by the villagers for irrigation purposes, that the settlement made by the State of Bihar with defendants 1st party was valid, and, that the suit plot 1014 vested in the State of Bihar. The lower appellate Court affirmed the findings of the trial Court with some modification. The modification was that the plaintiffs could not be granted a decree for confirmation of possession because they had acquired easement subject to the proprietary rignt of the State of Bihar.

(2.) Mr. K.D. Chatterji appearing for the appellants contended that the Courts below have erred in granting decree for easement to the plaintiffs because such a right can never be granted in favour of fluctuating body of persons. In my opinion, he is right. The main characteristics of easement are;

(3.) An easement is a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done. in or upon or in respect of, certian other land not his own.