BALDEO BIND Vs. SKABDUL AZIZ

JUDGEMENT

(1.) This appeal is by the defendants against concurrent decisions of the Courts below and bas been referred to a Division Bench by Sinha J. before whom it first came sitting singly. The plaintiffs sued for a declaration that the Muhammadan community in five villages had the right, during certain Muhammadan festivals including the Muharram, to go in procession by a certain route and to carry tazias by that route from one place to another, Part of the route traverses the agricultural land of the appellants, defendants 1 to 3, who denied the existence of the right claimed by the plaintiffs. The plaintiffs were six in number, and they purported to institute the suit as representatives of the Muhammadan community of the locality. They failed, however, to comply with the requirements of Order 1, Rule 8, Civil P.C., with the result that the litigation has been treated as a suit by the plaintiffs in their individual capacity and not as representatives of their coreligionists. The principal relief claimed in the plaint was for a declaration that the plaintiffs have a right of easement to take out tazias and processions by the route shown in the sketch map attached to the plaint, and the averments in the plaint were, in general, for the purpose of showing the right of the plaintiffs to the relief which they sought, that is to say, the right to the easement which they claimed.

(2.) The first Court held that the plaintiffs had established by prescription the right which they claimed, that is to say, the finding of the first Court is the existence of the prescriptive easement. On appeal by the defendants, however, the learned Subordinate Judge rightly held that the plaintiffs had failed to establish any easement, there being no allegation or proof of any dominant for whose benefit the alleged easement could exist. The Subordinate Judge has, however, held that the plaintiffs have established a customary right to pass over the land of the defendants for the purposes alleged in the plaint and has come to a finding that the plaintiff have for 40 years or so, followed the route indicated in the map attached to the plaint.

(3.) The decision of the Courts below has been challenged on various grounds; but I propose to deal with only two of them, namely, whether on the plaintiffs pleadings it was open to the Court below to give the plaintiffs the declaration which has been given and, secondly, whether, on the findings of the Court below, a valid custom for the plaintiffs to pass over the defendants land had been established. With regard to the first of these points, it is a well established principle of pleading that the plaintiffs cannot be permitted to succeed on facts which they have not both alleged and proved and that they are not entitled to give evidence that is not in consonance with the pleadings. On the other hand, it is also well established that in India where pleadings are not usually drawn up with that particularity which is characteristic of the pleadings of some other countries, they have to be more liberally construed than would otherwise be the case. But, in the present instance, it appears to me to be quite obvious why the plaintiffs did not in their plaint make out a case of the existence of a customary right and preferred to rely on the allegation that what they claimed was an easement. Had they averred the existence of a customary right, the reasonableness of the right would have been a matter in issue, and they would have had to she, in spite of all indications of commonsense to the contrary, that it is reasonable for a large body of men to pass through agricultural land belonging to another, in which that latter has, at the cost of consider, able energy and expense, raised valuable crops. It is admitted by one of the plaintiffs himself, who was examined as witness 5, that this land has been under the cultivating possession of the defendants for forty years, during twenty-five of which Indian corn or makai was grown on it, and that for the last five years or so tobacco has been grown on it. Any claim that the plaintiffs have by custom established a right to carry tazias and go in procession through land bearing either of these crops must, in my view, fail on the ground of want of reasonableness, and that, in my opinion, is why the plaintiffs chose to frame their suit as a suit for declaration of a right of easement, and they should not have been permitted by the Court below to succeed on a ground which they had avoided pleading in the first instance.