Smt Shyama Devi and ors Vs. Bhuneshwar Mahto - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.226 of 1984 =========================================================== Smt. Syama Devi & Ors. .... .... Defendants-Appellants-Appellants Versus Bhunesher Mahton @ Jagdeo Mahton & Ors. .... .... Plaintiffs-Respondents-Respondents with Second Appeal No. 228 of 1984 =========================================================== Smt. Syama Devi & Ors. .... ....Plaintiffs-Appellants-Appellants Versus Bhunesher Mahton @ Jagdeo Mahton & Ors. .... .... Defendants-Respondents-Respondents =========================================================== (Both the Second Appeals have been filed by the appellants against the common judgment and decree dated 18.02.1984 passed by 3rd Additional Subordinate Judge, Gaya in Title Appeal No.13 of 1983/165 of 1967 and Title Appeal No.166 of 1967/12 of 1983) Appearance : For the Appellants in both the Second Appeals : Mr. Surendra Kumar Singh, Sr. Advocate. Mr. Praveen Prakash, Advocate with him. For the Respondents in both the Second Appeals : None. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT

Date:

30. 08-2013 Mungeshwar Both the Second Appeals have been filed by the Sahoo, J.

appellants against the common judgment and decree dated 18.02.1984 passed by the learned 3rd Additional Subordinate Judge, Gaya in Title Appeal No.13 of 1983/165 of 1967 and Title Appeal No.166 of 1967/12 of 1983 whereby the learned lower appellate court dismissed both the appeals and confirmed the judgment and decree dated 31.08.1967 passed by the learned Execution Munsif, Patna High Court SA No.226 of 1984 dt.30-08-2013 2 Gaya in Title Suit No.04 of 1967/68 of 1963 and Title Suit No.03 of 1967/133 of 1960.

2. The present appellants filed Title Suit No.133 of 1960 praying for declaration that the defendants have no right to store water on survey plot nos.812, 643, 649, 745, 651 and 768 or to damage the paddy crops grown by the plaintiffs on the said plots and further for removal of the bundh put across survey plot no.657 and new dhonga put in survey plot no.641. The said relief was claimed on the basis that the plaintiffs are the owners of the aforesaid property but the defendants with the assistance of their friends and associates of the village have taken out the tar dhonga into the west of survey plot no.655, filled it up and have demolished a portion of genra and have put a bundh, as a result of which the flow of water has been changed. They have put a new dhonga in plot no.641 in spite of protest of the plaintiffs. Because of this illegal act of the defendants, the water coming from the hills flows into survey plot nos.655, 812, 643 and 768 and is stored there turning the aforesaid plots into reservoir of water, as a result of which the crops of the plaintiffs are damaged. The defendants have no right to use the land of the plaintiffs as reservoir of water for their irrigation purpose.

3. The defendants filed contesting written statement Patna High Court SA No.226 of 1984 dt.30-08-2013 3 alleging that they are using the water since time immemorial and more than forty years. During the pendency of this suit filed by the present appellants being Title Suit No.133 of 1960 the defendants filed Title Suit No.68 of 1963 and claimed that it may be declared that the plaintiffs (plaintiffs of Title Suit No.133 of 1960) have got no right to drain out the Ahar water to the north of bundh being plot nos.656 and 641 accumulating on plot nos.812, 649, 651 and 768 and other plots and on declaration of the same the plaintiffs be directed to close the cuttings at their own costs. The said relief was claimed by the defendants alleging that they are using the water from the land of the plaintiffs since time immemorial. In the suit the appellants in the Second Appeal were the defendants and vice versa. Both the title suits were heard together and by the common judgment and decree, the trial court dismissed the plaintiffs’ suit recording a finding that the defendants have prescribed title by easement as they are using water for irrigation purpose from the plaintiffs’ land since more than 40 years. Accordingly, the present appellants’ suit was dismissed and the respondents’ suit was decreed. The present appellants then filed Title Appeal No.166 of 1967 against the judgment and decree whereby the present appellants’ suit was dismissed and Title Appeal No.165 of 1967 against the judgment and decree whereby the present respondents’ Patna High Court SA No.226 of 1984 dt.30-08-2013 4 suit was decreed. As stated above, both the title appeals have been dismissed.

4. Second Appeal No.226 of 1984 arises out of Title Suit No.68 of 1963 filed by the present respondents whereas Second Appeal No.228 of 1984 arises out of Title Suit No.133 of 1960 filed by the present appellants. Since both the Second Appeals were directed to be heard analogously, a common substantial question of law was formulated on 11.04.1985 as follows:- (i) Whether the courts below have erred in law in holding that the defendants of Title Suit No.133 of 1960 have acquired irrigational right over the land of the plaintiffs bearing plot nos.812, 643, 645, 649, 651 and 768? 5. The learned senior counsel Mr. Surendra Kumar Singh in support of the substantial question of law formulated, submitted that while granting the right of easement to the defendants of the present appellants’ suit or in the suit filed by the present respondents, the courts below have not at all considered the provision as contained in Section 15 of the Indian Easements Act, 1882. According to the learned counsel, for constituting prescriptive right there must be uninterrupted peaceably use of right for 20 years but in the present case both the courts below did not consider any elements constituting the prescriptive right. The learned counsel further submitted that both the courts below considered Ext.6 i.e. the Patna High Court SA No.226 of 1984 dt.30-08-2013 5 plaint filed by the present respondents in the year 1951 being Title Suit No.154 of 1951 wherein at paragraph 7 the present respondents, who were the plaintiffs in that suit, clearly admitted that in the last year i.e. in the year 1950 the defendants of that suit (present plaintiffs-appellants) had interrupted the use of easementary right. The said suit filed by the present respondents had been dismissed for default on 02.12.1953, therefore, admittedly there was interruption from the period 1950 till the institution of the present suit in the year 1963 by the defendants i.e. for 13 years. Although the courts below have considered these documents of interruption but had granted the decree only on the basis of evidences that the defendants are using the water from the lands of the present appellants since long. In support of his contentions, the learned counsel relied upon A.I.R. 1971 SC 187.(Chapsibhai Dhanjibhai Dand Vs. Purushottam); 2005 (1) P.L.J.R. 188 SC (Justiniano Antao & Ors. Vs. Smt. Bernadette B. Pereira); and A.I.R. 1986 Kerala 75 (Maniyan Krishnan and another Vs. Maniyan Nanukuttan).

6. As stated above, no one appeared on behalf of the respondents.

7. It is admitted fact that both the courts below have categorically recorded the finding that the plaintiffs are the owners of the property in dispute. The respondents only alleged i.e. pleaded Patna High Court SA No.226 of 1984 dt.30-08-2013 6 in the written statement or the suit filed by them, is that they are using the water which is stored in the appellants’ land since time immemorial or more than 40 years. Therefore, in view of the claim of the parties, the only question which has been formulated is with regard to easementary right. Section 15 of the Indian Easements Act, 1882 reads as follows:-

“1. Acquisition by prescription:- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.”

8. In view of the aforesaid provision, an easement by prescription can be claimed over another man’s property. The respondents are claiming that right on the appellants’ land. The Hon’ble Supreme Court in the case of Chapsibhai Dhanjibhai Dand (supra) held that to prove easementary right it is necessary to Patna High Court SA No.226 of 1984 dt.30-08-2013 7 establish that it was exercised on someone else’s property and not as an incident of his own ownership of that property. For that purpose his consciousness that he was exercising that right on the property treating it as someone else’s property is a necessary ingredient in proof of the establishment of that right as an easement and or acquired the easement. The person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not in his own and where no such consciousness is proved, he cannot establish a prescriptive acquisition of right.

9. In the case of Maniyan Krishnan (supra), the Kerala High Court has held that the plaintiffs user must be as of right and not permissive. In the present case, the only pleading of the respondents is that they are using the right of irrigation from time immemorial or 40 years ago, therefore, there is absence of pleading or evidence regarding as to whether they were using the right of irrigation as a matter of right or not.

10. In the case of Justiniano Antao (supra) the Hon’ble Supreme Court at paragraph-9 has held as follows:- “We have gone through the three judgments i.e. trial Court, first appellate Court and that of the High Court. We have gone through the evidence adduced. From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the Patna High Court SA No.226 of 1984 dt.30-08-2013 8 defendants was used as of right for the last 20 years. The evidence very categorically shows that the plaintiff has an access on the south east side and this was being used by her for a long time. It was pointed out that only in the year 1984 the plaintiff has started using the access through the property of the defendants. It is also admitted that the defendants were during that time on board of ship and as soon as they came and saw the use of their land by the plaintiff, they put obstructions to it. Therefore, it is clear that it is not the case that the plaintiff has been using the access as of right through the property of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property we see no reason why the property of other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years. More so we find that material placed on record and especially the photographs which have been exhibited and marked as Ex.D.W.3/A in the Court that there are two pillars showing the existence of a gate in southern side but it has been closed down by rubble stones. The defendants have put up a strong case that the plaintiff has an opening in the southern side and it is amply established that there exist two pillars showing the existence of a gate which has been covered by rubble stones in the southern side. It was also pleaded that the plaintiff was using the same and it is only after 1984 she got the gate constructed through the land of the defendants. Therefore, on the Patna High Court SA No.226 of 1984 dt.30-08-2013 9 basis of the evidence and statement of the witnesses, we are satisfied that the first appellate Court has correctly approached the matter and the view taken by the High Court as well as the trial Court does not appear to be based on correct appreciation of facts.”

11. In the present case also it is clear that it is not the case of the plaintiffs-respondents that they are using the right of irrigation from the land of the appellants as of right for more than 20 years. Here, the further fact as would be evident from the trial court and also the appellate court that the respondents themselves have admitted interruption of their right by the appellants as far back as in the year 1950. Now, therefore, the most important element i.e. peaceable uninterrupted 20 years’ right is not there. Admittedly the suit has been filed by the respondents in the year 1963. Interruption as stated above has been admitted in the year 1950. In such circumstances, the respondents were not using their right for last more than 13 years prior to the date of institution of the suit in the year 1963, therefore, the period of 20 years is also absent. As stated above, there is no pleading also nor there is any evidence that as a matter of right they were exercising this right, therefore, this element is also absent in the present case.

12. From perusal of the judgments of both the courts below, it appears that both the courts below have not at all considered this legal provision and the settled principles of law laid Patna High Court SA No.226 of 1984 dt.30-08-2013 10 down by the Hon’ble Supreme Court discussed above. In my opinion, therefore, the judgments of both the courts below are vitiated. Thus, the impugned judgments of both the courts below are set aside. The substantial question of law formulated is answered in favour of the appellants. It is held that the respondents have no right of easement to use the lands of the appellants as water reservoir for the purpose of irrigation. Thus the appellants’ suit is decreed and the respondents’ suit is dismissed. No order as to costs. (Mungeshwar Sahoo, J) Harish/-