D.B. Lal, J.
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.
4. In the plaint, in paragraph (2) the allegation was that the plaintiffs alone were sending their cattle for pasture inside the disputed land. It appeared, therefore, that the claim was for acquisition of easement by prescription under Section 15 of the Act. But in paragraph (3) of the plaint, the area was called 'Shamlat' of the village, meaning thereby that the plaintiffs as well as the other residents of the village used to take their cattle for pasturage in this area. That was really a claim for a customary right or customary easement under Section 18 of the Act. At any rate, the pleadings were not got clarified by proper statements before the issues were framed. The Issue No. 1 itself was rather vague which ran as below:--
'Whether the plaintiffs have grazing rights in the suit land. If so, its effect.'
As I have stated before, grazing rights or rights of pasturage could be founded on custom as well as on prescription. If the land is 'shamlat; the right could take its origin into a custom and the easement would be customary easement under Section 18 of the Act. If the land is not 'shamlat' because the revenue entries show proprietary rights in favour of the defendants, the plaintiffs may claim an easement of pasturage by prescription under Section 15 of the Act. Due to this confusion, the parties could not adduce proper evidence and the points at issue could not be clarified so that a correct decision could not be arrived at.
5. The learned District Judge set aside the judgment of the learned Subordinate Judge under a reasoning which cannot by any process be considered sound. He has specified that between the disputed land and the land belonging to the plaintiffs, some other fields intervene; but that factor could not disentitle the plaintiffs from claiming a right of pasturage. The cattle could as well go over the disputed land and an easement could be claimed because the dominant tenement would be the plaintiffs' land, while the servient tenement would be the land in dispute. Then it is asserted by the learned appellate Court that no entry of pasture existed in the revenue paper. This is again a faulty method of assessing evidence. The entry of pasture is made in 'wajib-ul-arz' and is never made in 'jamabandis'. Then the learned appellate Court concluded that the plaintiffs did not exercise the easement as of right for a period of 20 years. This was really an inference drawn upon data which was incomplete for any such inference. However, in the last, the learned District Judge concluded that the plaintiffs never grazed their cattle over the disputed land. This finding could not be arrived at upon the evidence. Mani Earn (P. W. 1) stated that the plaintiffs as well as others grazed their cattle over the disputed land. Wazir Chand (P. W. 2) and Prabhu (P. W. 3) both stated that they themselves grazed their cattle over the disputed land. Raunki (P. W. 4) stated that the plaintiffs grazed their cattle from 30 years at this place. All these witnesses, however, stated that others also grazed their cattle over this land. There are documents to indicate that as far back as in 1890, the predecessors-in-interest of the plaintiffs asserted 'shamlat' rights of pasturage over this land. However, the proprietorship entries that existed in favour of the predecessors-in-interest of the defendants were not altered and the parties were directed to go to a Civil Court for determination of their rights. That incident, no doubt, proved that an assertion was made for pasturage in respect of this land. However, I leave the Courts below to adduce their inference upon evidence which shall now be recorded after proper issues are framed. I should not be understood to express any opinion as to whether the easement is at all established, or if established, it is by prescription or by custom.
6. Before parting with this case, however, I would like to stress the distinction which exists under law between an easement based on prescription and an easement founded on custom. The basis of every right of easement by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner. It may be expressed, as is mentioned in Sections 8 to 12 of the Act, or it may be implied from the circumstances as in Section 13 of the Act. or it may be presumed from long and continued user for a certain period as in Section 15 of the Act, or it may be inferred from a long and continued practice of user by a certain class of the public in certain locality. It is then to be seen on the basis of proper evidence as to what type of easement, if any, can be claimed by the plaintiff. Persons claiming a customary easement have not only to prove the elements required under Section 15 of the Act but also something more, namely, that the custom set up was ancient, continuous, reasonable, certain and compulsory. For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others. Different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. These observations I have made, so that the evidence is properly appreciated, while the case goes back to lower Courts.
7. In the end. I would set aside the decision of the Courts below and would remand the case for a fresh trial and decision. The parties should be made to clarify their pleadings. Proper issues are to be framed. Fresh evidence is to be led. However, the evidence already on the record shall also be considered alone with such other evidence which is produced. The case will then be decided according to law.
The costs in this appeal shall abide the event.