GANPAT Vs. NARAYAN

JUDGEMENT

(1.) 1. The plaintiffs-respondents who are cultivators in the village of Both in the Yeotmal District, instituted the suit out of which this appeal arises for: (1) a declaration that they and the other residents of the village had a right of passage for themselves and their cattle through two fields in the village belonging to the defendants-appellants in order to take their cattle to graze in the adjoining Government C Class forest; and (2) a permanent injunction to restrain the defendants from obstructing such passage. In para. 1 of the plaint the plaintiff's alleged: All the village people have a right to take cattle by the way, and as they have been enjoying the right at least for 50 or 60 years they have acquired a right of easement and have been enjoying the same.

(2.) THE plaint was in Marathi, but the word "easement" was written in English. The defendants denied that the plaintiff's have been taking their cattle as a right through the fields in question for the statutory period so as to enable them to maintain the suit. They also denied that the path in dispute had ever been used as a public way, which had not been suggested. The trial Court framed two issues on the point: (1) whether the path in suit was a public path of the villagers of Both for going to the C class forest and taking their cattle there; and 4. What rights the villagers had acquired in respect of this path. Evidence was given to show that the villagers had taken their cattle to the C class forest by this path continuously for about 50 or 60 years, which both Courts have accepted as true, and the trial Court held that the villagers had acquired an easement by prescription. The learned Additional District Judge, who realized what an easement was, held that the villagers had acquired this right either by virtue of an easement by prescription, or of a customary easement, or of a customary right. In second appeal it was argued for the appellants that the right of way had been claimed as an easement by prescription, that there could not be any such easement except for the beneficial enjoyment of other land, and that in this case there was no such land. In reply to this it was urged by the respondents that the plaintiffs had really pleaded a customary easement and not an easement by prescription. There has been considerable misunderstanding as to what constitutes an easement. In Section i, Easements Act, it is defined as a right which the owner or occupier of certain land (called "the dominant heritage") 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, certain other land not his own (called the servient heritage"). An easement may be acquired by prescription under Section 15, where the right has been peaceably and openly enjoyed as an easement and as of right without interruption for 20 years, or it may be acquired in virtue of a local custom under Section 18. As explained by Peacock in his Law relating to Easements in British India, at p. 206, Edn 3: "The acquisition of an easement by virtue of a custom differs from the acquisition of an easement by prescription in that prescription belongs only to the individual, whereas custom must appertain to many as a class.

(3.) THE question therefore is whether the plaintiffs can succeed on proof of custom. The plaintiffs' pleadings have been unhappily drafted, but issue 4 framed by the trial Court, was sufficiently wide to cover a plea of customary right, and evidence has been given proving that custom. A custom in order to be valid must be ancient, invariable, reasonable and certain; whereas an easement need not be reasonable. In this case the appellants have urged that if custom had been specifically pleaded they would have taken the objection that the custom was neither reasonable nor certain. This objection could not help them, as such a custom could not be held to be unreasonable; nor is it uncertain, for definite persons, residents of the village with cattle to graze, claim a definite right to take their cattle through the appellants' fields on their way to the Government G class forest. I am therefore of opinion that the plaintiffs should succeed and that the defendants have not been prejudiced by the way in which the case has been tried. The appeal is dismissed with costs.