Bakshi Prem Mohan And Others vs Ram Chandra Nigam And Others
2023 Latest Caselaw 23561 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Reserved
 
Neutral Citation No. - 2023:AHC-LKO:57160
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 130 of 1984
 

 
Appellant :- Bakshi Prem Mohan And Others
 
Respondent :- Ram Chandra Nigam And Others
 
Counsel for Appellant :- A.N.Verma,Surya Narayan Mishra
 
Counsel for Respondent :- H.S.Sahai,Anamita Srivastava,Beena Kishor,Uma Shankar Sahai
 

 
Hon'ble Jaspreet Singh,J. 

1. Heard Sri Surya Narayan Mishra, learned counsel for the appellant and Sri Shaswat Srivastava, Advocate holding brief of Sri U.S. Sahai, learned counsel for the respondents.

2. This is the defendant's second appeal being aggrieved against the judgment and decree dated 19.12.1987 passed in Civil Appeal No. 120 of 1981 whereby the suit for permanent injunction filed by the plaintiff-respondents bearing Regular Suit No. 323 of 1980 which was decreed in terms of the prayer made.

3. The instant appeal was admitted on 24.02.1984 on substantial questions of law as formulated and proposed in paragraph nos. 2 and 3 of the memo of second appeal which for ready reference is being reproduced hereinafter:-

"(i) Whether the plaintiffs-respondents had any title to the land in question along with the well and temple by virtue of the sale deed dated 25.08.1954 on the face of the statement on oath made by P.W. 2, the vendor of the plaintiff's vendor, to the effect that he had only sold the house to Dr. Gupta and not the temple and well.

(ii) Whether the vendor of the plaintiffs-respondents could convey better title on them than what was conveyed to him by his vendor P.W. 2."

4. In order to appreciate the controversy involved in the instant second appeal, it will be worthwhile to notice relevant facts giving rise to the instant appeal.

5. Sri Ram Chandra, Harish Chandra and Karam Chandra, the original plaintiffs instituted a suit in the Court of Munsif, Bahraich registered as Regular Suit No. 323 of 1980 seeking a decree of permanent injunction, restraining the defendants from interfering in the peaceful possession, use and occupation of the property which was more-fully shown in the site plan annexed and forming part of the plaint and suit as Aa, Ba and Sa with red colour lines.

6. It was pleaded that the property in question which is a large part which was shown by letters Aa, Ba, Sa, Pa, was purchased by them from the erstwhile owner Sri Shyam Sunder Gupta for a sale consideration of Rs. 4,000/- by means of sale deed dated 25.06.1954.

7. The controversy arose on account of the fact that the disputed property which had the house of the plaintiff but in the area shown by Pa, Ba, Aa, which was triangular in shape, it had a temple and a well on the eastern side of this small piece of land, part of the plaintiff's property falling on the northern side of the plaintiff's house and abutting the main road. The defendants were attempting to encroach upon the said land which prompted the plaintiffs to institute the suit.

8. The defendants filed their written statements and took the plea that the well and the temple located on the land in question was a public property and not part of the plaintiff's land which he had purchased by the sale deed dated 25.06.1954.

9. The specific plea raised by the defendants was that the temple and the well was being utilized by the members of the public for drawing water from the well and worshiping in the temple since many years and that they had acquired a customary and an easementary right over the same and for the aforesaid reasons, the suit of the plaintiff was not maintainable nor the defendants could be restrained from drawing the water from the well and worshiping in the temple.

10. It is in the aforesaid backdrop that upon exchange of pleadings, the Trial Court framed six issues and the relevant issues on which the suit was contested, were :-

(i) Whether the plaintiff is the owner in possession of the disputed property?

ii) Whether the plaintiff had the right to file the suit?

iii) Whether the suit was barred by virtue of Section 91 and Order 1 Rule 8 C.P.C.?

iv) Whether the suit was within limitation?

v) Whether the plaintiff was entitled to any relief?

11. After the parties led their evidence, the Trial Court recorded a finding that the plaintiffs were the owner of the entire property in question by the sale deed dated 25.06.1954 but it also opined that since the temple and the well were on the north eastern side of the open piece of land which was part of the plaintiff's ownership but since it was near the road and was in existence since long, accordingly, the Trial Court held that the defendants were restrained from interfering in the plaintiff's possession over the property marked by letters A, B, C, D and A, J, T and H which was shown in the Commissioner's map which was made part of the decree and the suit for injunction of the plaintiff for M, B, T, was dismissed (this is the area which had the temple and the well).

12. The plaintiffs filed a Regular Civil Appeal against part of the judgment and decree dated 24.04.1981 passed by the 3rd Additional Munsif, Bahraich whereby part of the suit was dismissed. The Lower Appellate Court after hearing the parties by its judgment dated 19.12.1983 in Civil Appeal No. 120 of 1981 decreed the suit in the entirety after allowing the appeal. It is this judgment of the Lower Appellate Court which is under challenge in the instant second appeal by the defendants.

13. Sri Surya Narayan Mishra, learned counsel for the appellant has primarily urged that the Lower Appellate Court fell in error in ignoring two vital aspects, inasmuch as, it was evident from the evidence laid before the Trial Court and also noticed by it that the temple and the well in question was very old and had been constructed by Sri Gopal Ji, the original owner.

14. Sri Gopal Ji had sold the property to Sri Shyam Sunder Gupta who in turn sold the property to the present plaintiffs on 25.06.1954. It is urged that in the sale deed, there was no specific mention that the well and the temple was being sold and thus since it was not sold to the plaintiffs, they have no right to institute the suit in respect thereto.

15. It is further urged that the original owner Sri Gopal Ji was examined as P.W. 2 who clearly admitted that the well and the temple was constructed by his grandfather and thus it was urged that since it was a longstanding structure which was being utilized by the persons including the defendants and the fact that the maintenance of the well and temple was also being done by contributions from the persons of the locality and the water from the well was drawn for the maintenance, cleaning of the temple and also for the purposes of offering the same to the deity. Thus, the right of easement of necessity and customary right vested with the defendants, consequently, the Trial Court had rightly appreciated the controversy in the correct perspective but it has been ignored by the Lower Appellate Court for insufficient reasons and as such the findings returned by the Lower Appellate Court are against the weight of the material on record and deserves to be set aside.

16. It is also urged that the plaintiffs could have only got what his predecessors had sold and since it was categorically stated by the original owner Sri Gopal Ji that he had not sold the temple and the well, therefore, the plaintiffs did not have any right and the suit was liable to be dismissed in so far as the area which was rightly demarcated by the Trial Court on the basis of the map made by the Commissioner and was made part of the judgment of the Trial Court shown by letters M, B, T, H.

17. Sri Shashwat Srivastava, learned counsel appearing for the respondents has disputed the aforesaid submissions and has urged that in so far as the title to the property is concerned, the same has been held by the Trial Court, vested with the plaintiffs by means of the sale deed dated 25.06.1954. The sale deed indicates the property purchased by the plaintiffs by the boundaries and the said boundary also includes that part of land over which the well and the temple is situate. It is urged that even if at all the same is not mentioned in the sale deed yet the well and the temple being part of the property sold pass on to the plaintiffs by virtue of the sale deed.

18. Taking his submissions forward, the learned counsel for the respondents submits that this finding recorded by the Trial Court was not assailed by the defendants by filing a cross appeal or cross objections under Order 41 Rule 22 C.P.C. and thus in absence of any challenge to the same, the defendants-appellants at this stage are prevented from raising any issue regarding the title of the plaintiffs over the property in question.

19. It is further urged that the entire premise of the submission of the defendants is flawed for the reason that though they had raised a plea of customary right and easement of necessity but unfortunately both have not been proved by leading evidence. It is noticing this aspect of the matter and confirming that the plaintiff is the owner of the entire property, did the Lower Appellate Court decreed the suit in its entirety and it cannot be said that there is any error which may require the interference of this Court. It is thus submitted that the judgment passed by the Lower Appellate Court deserves to be confirmed and the appeal be dismissed.

20. The Court has heard the learned counsel for the parties and also perused the material on record.

21. Considering the controversy involved and the questions of law as framed, it would be found that the plaintiffs had filed their sale deed dated 25.06.1954 which was marked as Exhibit-1 in terms whereof they had purchased the property from Sri Shyam Sunder Gupta. The sale deed in question clearly provides the boundaries and the northern boundary is up to the road, on the eastern side of the boundary, house of Vidyawati, on the western side of the boundary, there is a lane and on the southern side of the boundary, the house of Dr. Maharaj Narayan.

22. The original owner of the property namely Sri Gopal Ji was examined as P.W. 2 who also stated that he had earlier sold the property to Sri Shyam Sunder Gupta who in turn had sold it to the present plaintiffs.

23. Thus, in so far as the identity and the boundaries of the properties is concerned, the same was duly proved and a finding to this effect was also recorded by the Trial Court in its judgment. This finding was not assailed by the defendant by filing any cross objections since the suit was partly decreed and the plaintiffs had filed a regular appeal, it was always open for the defendants to have filed a cross objection against this finding which has not been done, hence, the said finding has attained finality and is also not in dispute before this Court.

24. In the aforesaid backdrop, now the issue that requires consideration is whether the Lower Appellate Court was justified in decreeing the suit in its entirety.

25. This has been necessitated on account of the fact that the Trial Court while partly decreeing the suit noticed that the area which has been shown by letters M, B, T, H in the Commissioner's map which has the temple and the well was treated to be an area where the public would have a right and to that extent the suit of the plaintiff was dismissed but for the remaining part, the suit was decreed.

26. The reason for dismissing the suit for that limited part as borne out from the judgment of the Trial Court was that apparently the well and the temple which was on the northern side of the house and was not encircled by any boundary wall and had been there from the time when the original vendor Sri Gopal Ji had sold, all indicates to the fact that it was for the benefit of the public as the persons were entitled to draw water and that they were also offering prayers in the temple.

27. However, this is based on the plea raised by the defendant in paragraph 12 of the written statement where they pleaded that the property in question was a public property and the temple and well was in the use of the public at large and thus they had acquired a customary and an easement of necessity.

28. In order to test the aforesaid contentions, it will be relevant to notice what an easement is, how an easement of necessity would arise, how a customary easement arises. In this regard, before proceeding any further, it shall be relevant to notice certain provisions of the Indian Easement Act, 1882. For the sake of easy reference, the following provisions are being reproduced hereinafter:-

4. "Easement" defined.--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, certain other land not his own.

Dominant and servient heritages and owners.--The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

Explanation.--In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.

Illustrations

(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. This is an easement.

(b) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household, out of a spring therein. This is an easement.

(c) A, as the owner of a certain house, has the right to conduct water from B's stream to supply the fountain in the garden attached to the house. This is an easement.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E's land. These are easements.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.

(f) A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement.

13. Easements of necessity and quasi-easements.--Where one person transfers or bequeaths immovable property to another--

(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, been entitled to such easement;

(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

Where a partition is made of the joint property of several persons,--

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or

(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

Illustrations

(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A's adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A's adjoining land to the field sold.

(b) A, the owner of two fields, sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B's field to the field retained.

(c) A sells B a house with windows overlooking A's land, which A retains. The light which passes over A's land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.

(d) A sells B a house with windows overlooking A's land. The light passing over A's land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A's hands.

(e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.

(f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.

(g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.

(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.

(i) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support from A's building, and A is entitled to a right to lateral support from B's building.

(j) A, the owner of two adjoining buildings, sells one to B and the other to C. C is entitled to lateral support from B's building, and B is entitled to lateral support from C's building.

(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A's land as is necessary for the safety of the house.

(l) Under the Land Acquisition Act, 18707, a Railway Company compulsorily acquires a portion of B's land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B's adjoining land as is essential for the safety of the siding.

(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support from B's portion as is essential for the safety of the upper room.

(n) A lets a house and grounds to B for a particular business. B has no access to them other than by crossing A's land. B is entitled to a right to way over that land suitable to the business to be carried on by B in the house and grounds.

18. Customary easements.--An easement may be acquired in virtue of a local custom. Such easements are called customary easements.

Illustrations

(a) By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.

(b) By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour's privacy. A builds a house in the town near B's house. A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A's house which are ordinarily excluded from observation, and B acquires a like easement with respect to A's house.

41. Extinction on termination of necessity.--An easement of necessity is extinguished when the necessity comes to an end.

Illustration

A grants B a field inaccessible except by passing over A's adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way over A's land which B had acquired is extinguished.

62. License when deemed revoked.--A license is deemed to be revoked--

(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license;

(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;

(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;

(d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;

(e) where the licensee becomes entitled to the absolute ownership of the property affected by the license;

(f) where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable;

(g) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;

(h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;

(i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist."

29. Now, in the aforesaid context, if the Section 4 of the Easement Act, 1882 is seen, it would indicate that an easement is a right which the owner or occupier of certain land possess for the beneficial enjoyment of his land to do or 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.

30. This would indicate that an easement can only arise if any right accrued to the defendants which is necessary and beneficial for the enjoyment of their own property and in order to do that they had acquired a right of easement which was on the land of the other person.

31. In continuation thereof if the easement of necessity as indicated in Section 13 is seen, it would necessarily have to be read with Section 41 of the Easement Act which says that an easement of necessity is extinguished when the necessity comes to an end.

This aspect can be seen in two parts:-

(i) the dispute arises on account of the existence of a temple (ii) a well.

32. From the pleadings of the defendants, they have merely pleaded that the well was being utilized for drawing water as well as for the offerings made to the deity in the temple but the evidence on record as laid by the defendants clearly indicates the fact that the land in question which was in dispute was not a public land rather it was a private property of the plaintiffs. No evidence could be laid that any public functions were held or that on festivals, public at large used to utilize the temple or the well.

33. On the contrary, the plaintiffs led the evidence to state that since the well was present at the time when the property was purchased in the year 1954 and since many persons did not have water connections, therefore, they used to come to take the water from the well to which he did not object.

34. At this stage, it will be relevant to discern the difference between an easement and a license and for the said reason Section 52 of the Easement Act, 1882 which defines a license, is being noticed, which reads as under:-

"52. "License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

35. As far as the right to draw water from the well is concerned and from the material available on record, two things are clear which are:-

(i) that the property where the said well is situate was the private property of the plaintiffs and prior to time even of their predecessor in interest.

(ii) If he did not object to some members of the public to draw water would not necessarily give rise to an easement rather it would be a license.

36. The submission of learned counsel for the appellants, if tested on the aforesaid provisions, as noticed above and in light of the evidence available on record, it would indicate that with passage of time when the persons got water connections, they stopped using the well which necessarily was the property of the plaintiffs, hence, the alleged easement of necessity as pleaded by the defendant in terms of Section 41 of the Easement Act stood extinguished.

37. Though, the pleading and the foundation for the easement and customary right was made but there was not sufficient evidence to prove that said fact. The only effort of the learned counsel for the appellant has been to draw the attention of the Court to the statements of the plaintiffs that they admit this fact but if the evidence of the plaintiff is seen, all that it indicates is that he did not merely object the people from taking water from the well as all persons at that relevant time did not have water connections.

38. This clearly does not establish an easement rather it is merely a license since in order to establish an easement, it must first be shown that the property belongs to someone else and in order to enjoy the property belonging to the person who sets up the easement, it is necessary to go on to the property of the other.

39. There is no evidence to that effect that the defendants themselves were drawing water and in order to enjoy their particular properties it was necessary to go on to the plaintiff's land and draw the water, thus, the plea of easement was not established and all what can be said was that it was merely a license granted for drawing water and in any case once a property is transferred, the license also extinguishes along with it unless there is a contract to the contrary.

40. In the instant case, the moment the plaintiffs filed the suit, it was a clear indication that the alleged license, if at all existed, the same also came to an end. The Court also relies upon a decision of the Madras High Court in Saripella Venkatapathiraju and Others vs. Saripalli Subbaraju and another report in the Law Weekly 1931 page 191 and the relevant portion reads as under:-

"It is therefore necessary to bear in mind that in considering questions of easements of necessity convenience is not the test, but absolute necessity. In some English cases the reason why an easement of necessity is presumed to have been granted is stated to be this. Public Policy required that all available lands should be used and cultivated. It could not be done if there be no access to the same. We should bear this in mind, when we approach the consideration of the question that arises for decision in this case. It is admitted that the second brother had a right of way of necessity to pass from B-2 to B-3 through the land of the 3rd brother C-3. It is also admitted that B-3 was purchased from the second brother's branch by the plaintiffs who belong to the 1st branch. After such purchase access to B-3 could be had through A-2. There was no necessity to have access through C-3 for passing from A-2 to B-3 after B-3 was purchased by the plaintiffs. What is the effect of the plaintiff's purchase of B-3 on the right of way of necessity that existed for access between B-2 and B-3 through C-3? The plaintiffs contended that the easement of necessity was in suspense, and they arguod that after the plaintiffs' purchase of B-2 also some years later, the old easement right of way of necessity to pass from B-3 to B-2 through C-3, revived. I am unable to agree. Revival of easements is dealt with by Sect. 51 of the Easements Act, and the present case would not come under that section. Suspension of easements is dealt with by Sect. 49, and the present case would not come under that section either. C-3 the servient tenement has never passed hands from the 3rd brother's branch to the defendants, since they have continued to be owners of the same all along. The defendants argued that as soon as the owner of the dominant tenement acquired an adjoining plot through which access to the several portions of the dominant tenement could be had, then, the old easement of necessity became extinguished. They relied on Sect. 41 of the Easements Act which enacts that 'an easement of necessity is extinguished when the necessity comes to an end.' Illustration to Sect. 41 was also relied upon by the respondents. The learned Advocate for the appellants argued that a right vesting in the dominant owner, such as a way of necessity, is a valuable right, and he could not be said to have lost that right, simply because he spent his own money in purchasing some adjoining property. He argued that the servient owner could not take advantage of a purchase made by the dominant owner by using the dominant owner's moneys. He also submitted that the right really appertains to the two plots of lands B-2 and B-3, and as soon as the said plots became united in ownership under one person, the old right of way of necessity revived, and that the lower Courts were wrong in disposing of the question rather summarily without properly discussing the same."

41. Now, in so far as the issue of temple is concerned over which the defendants claimed a customary right but this Court is afraid to note that there is no evidence to establish a customary right in accordance with law rather the evidence of the defendants clearly indicated that there was never any occasion, festival which was celebrated and the temple was again situate on a private property for the benefit of the owners and there was no evidence to indicate that the said temple had partaken the nature of a public property or that it vested in the public at large.

42. However, the appellants have pleaded customary rights. However, there is not ample evidence on record to establish it. Customary rights or traditional rights are rights are those rights and obligations held by an individual, a group or a community which have the roots in the custom. In order to claim such rights heavy burden lay on the defendants-appellants but no such cogent evidence was led to establish such customary rights.

43. The Court also draws strength from the decision in Kuar Sen v. Mamman and Others reported in Indian Decisions New Series 17 Alld. Page 88 and the relevant portion reads as under:-

"Section 18 of the Indian Basements Act, 1882 (Act No. V of 1882) leaves at large the question of law how a local custom may be established. As such a local custom as is now set up on behalf of the defendants excludes or limits the operation of the general rule of law that a proprietor or other person lawfully in the possession of land, and whose rights are not controlled or limited expressly or impliedly by Statute law, by grant, or by contract, has an exclusive right to the use or enjoyment of his land for all purposes not injurious to the rights of his neighbours, it is necessary that those setting up such a custom as that in the present case should be put to strict proof of the custom alleged by them.

A local custom to have the effect of excluding or limiting the operation of the general rules of law must be reasonable and certain. A local custom as a general rule is proved by good evidence of a usage which has obtained the force of law within the particular district, city, mohalla or village, or at the particular place, in respect of the persons and things which it concerns. Where it is sought to establish a local custom by which the residents or any section of them of a particular district, city, village or place are entitled to commit on land not belonging to or occupied by them, acts which, if there was no such custom, would be acts of trespass, the custom must be proved by reliable evidence of such repeated acts openly done, which have been assented and submitted to, as leads to the conclusion that the usage has by agreement or otherwise become the local law of the place in respect of the person or things which it concerns. In order to establish a customary right to do acts which would otherwise [92] be acts of trespass on the property of another the enjoyment must have been as of right, and neither by violence nor by stealth, nor by leave asked from time to time. We cannot in these Provinces apply the principle of the English Common Law that a custom is not proved if it is shown not to have been immemorial. To apply such a principle as we have been urged by the counsel for the appellant to do would be to destroy many customary rights of modern growth in villages and other places. The Statute law of India does not prescribe any period of enjoyment during which, in order to establish a local custom, it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed. And in our opinion it would be inexpedient and fraught with the risk of disturbing perfectly reasonable and advantageous local usages regarded and observed by all concerned as customs to attempt to prescribe any such period."

44. At this stage, it will also be relevant to notice that if at all the defendants had any claim, they could have also instituted a petition under Section 92 C.P.C. which they did not, therefore, this also implies that they were otherwise aware that the property was private and so also the temple and the well. This is also strengthened by the fact that when the Trial Court recorded a finding that the property in question was a private property yet that finding was not challenged by filing a cross objections, hence, the defendants acceded to the same.

45. Thus, considering this aspect of the matter, the Lower Appellate Court rightly concluded that it was not a case of easement or customary right rather it was a merely a license which was always in the domain of the plaintiffs to revoke and such findings are pure findings of fact which are not liable to be interfered with in exercise of powers under Section 100 C.P.C. Consequently, the appeal sans merit and is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. The records of the court below be returned expeditiously.

Order Date :- 28th August, 2023

Asheesh