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AMICUS AI
Citation Codes
Equivalent Citations
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Case Number
Advocates
  • R. Dwivedi and R.P. Singh
  • Prem Chandra Srivastav
Judges
  • K.B Asthana, C.J
Acts
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • R. Dwivedi and R.P. Singh
  • Prem Chandra Srivastav
Judges
  • K.B Asthana, C.J
Acts
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Smart Summary

Structured Summary of the Opinion — K.B. Asthana, C.J.

Factual and Procedural Background

The plaintiff-respondent sued for a permanent injunction restraining the defendants from interfering with the plaintiff's and his servants' and labourers' right to go to plot Nos. 9 and 10 over the Rasta MNPQ shown in the plaint plan and for an order directing the defendants to remove a portion of a wall marked MN. The plaintiff alleged a one Lattha wide passage joining his plots Nos. 9 and 10 with the main public road in the north, passing over the boundary between plots Nos. 30 and 31, and that he and others had been using it for more than 25 years as of right, thereby acquiring a prescriptive easement under Section 15 of the Easements Act. He also pleaded that this was the only access to the public road from his plots.

The defendants denied the existence of a Lattha-wide passage, contending that what existed was an irrigation channel between fields Nos. 30 and 31 and that the plaintiff had not used any part of the land as a Rasta as of right. They alleged the plaintiff had recently constructed a gate in the north of his plots and that in consolidation proceedings no such claim had been made; they further pointed to the existence of a Chak road to the east as an alternative access.

The trial Munsif inspected the spot and found no Lattha-wide passage; he observed a beaten path (1–2 feet wide) on the ridge between the two fields, and concluded the plaintiff failed to establish a passage adequate for bullock carts and Ikkas. The Munsif dismissed the suit.

On appeal, the Civil Judge affirmed that no Lattha-wide passage existed but found a "Danda" (a 1–2 foot foot-path on the ridge) had been used by the plaintiff and his servants for more than 25 years and, on that basis, held a prescriptive right under Section 15 and decreed the suit to that extent, also directing demolition of the defendants' wall. The Civil Judge affirmed the Munsif's findings that (a) the defendants had not been shown to have reduced any passage width following consolidation, and (b) the plaintiff's gate at the northern boundary appeared recently constructed.

The defendants appealed to the High Court (second appeal). At an earlier stage of the appeal the Chief Justice framed an issue about alternative access and received a finding that a Chak road ran east of the plaintiff's plots and that a beaten track adjacent to the southern boundary provided an alternative if the plaintiff removed hedges; a belated objection to that finding was condoned and filed but the Chief Justice rejected the objection.

Legal Issues Presented

  1. Whether the plaintiff acquired a prescriptive right of way under Section 15 of the Easements Act over the "Danda" (the 1–2 foot ridge path) running between fields Nos. 30 and 31.
  2. Whether there exists an alternative access to the plaintiff's plots Nos. 9 and 10 from the public road other than the route MNPQ shown on the map (i.e., the existence and adequacy of a Chak road or beaten track as alternative passages).

Arguments of the Parties

Plaintiff-Respondent's Arguments

  • The plaint alleged a one Lattha wide passage (sufficient for bullock carts and Ikkas) connecting plots Nos. 9 and 10 to the main public road, passing over the boundary between plots 30 and 31.
  • The plaintiff claimed uninterrupted user of that passage by himself, family and servants for over 25 years "as of right", thereby acquiring a prescriptive easement under Section 15 of the Easements Act.
  • The plaintiff asserted that the passage shown in the plaint map (MNPQ) was the only access from his plots to the public road.

Defendants' Arguments

  • There was no Lattha-wide passage as alleged; what existed was an irrigation channel between fields Nos. 30 and 31 and not a Rasta.
  • The plaintiff had not used any part of the land "as of right"; use was permissive or by leave.
  • The plaintiff had recently constructed a gate at the north of his plots and falsely claimed long-standing use of that gate as access.
  • In consolidation proceedings the plaintiff did not assert such a claim and a Chak road had been carved on other plots to the east, providing an alternative route to the plaintiff's plots.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hari v. Mahadeo, A.I.R. 1921 Nag. 127 Cited by plaintiff's counsel to support the proposition that long user may give rise to prescriptive rights. The court observed that this case (as with the others cited) does not establish an absolute rule that mere long use automatically creates an easement; the facts of each case determine whether user was "as of right" or permissive. The precedent was not treated as overruling the necessity to distinguish permissive from adverse use.
Phoolchand Narayan Dass v. Murari Lal Nathilal, A.I.R. 1951 M.B. 89 Cited to support the contention that long uninterrupted use can lead to prescriptive rights. The court noted that in that case the factual conclusion was that the user was as of right (or was found to be by way of leave/licence depending on facts); it does not support an automatic presumption of adverse user from mere long use. The present case was distinguished on factual basis.
Tukaram Rajaram Suple v. Sonba Chindu Mal, A.I.R. 1959 Bom. 63 Relied upon by plaintiff to show that long user can establish prescription under the Easements Act. The court treated the citation as fact-specific and held that those authorities do not lay down a general rule converting any long use into an exercisable prescriptive right; the court emphasized that user over agricultural ridges is commonly permissive and must be distinguished from adverse use.

Court's Reasoning and Analysis

The court undertook a step-by-step factual and legal analysis, grounded in the findings at trial and on appeal:

  1. Findings of fact: Both the Munsif and the Civil Judge found there was no Lattha-wide passage capable of carrying bullock carts and Ikkas. What was established on the spot was a narrow beaten path or "Danda" of 1–2 feet width along the ridge between two cultivated fields (plots Nos. 30 and 31). The plaintiff's gate and the defendants' wall appeared recently constructed.
  2. Alternative access: The court addressed the issue of alternative access and accepted the finding that a Chak road runs to the east of the plaintiff's plots and that a beaten track along the southern boundary could provide access if the plaintiff removed hedges. The court rejected the plaintiff's contention that that beaten track was railway land and held there was no evidence to establish that.
  3. Interpretation of long user authorities: The plaintiff relied on authorities to argue that long uninterrupted user (over 25 years) gives rise to a prescriptive right under Section 15. The court examined those authorities and concluded they do not establish a rule that mere passage for over 20 years automatically leads to a prescriptive right. Rather, those cases turned on their particular facts — in some, user was held to be as of right; in others, user was permissive or by leave/licence.
  4. Permissive nature of ridge use: The court explained a salient factual and legal point applicable to agricultural villages: ridges (Mend boundaries) between cultivated fields are commonly used by villagers and such passing is ordinarily permissive; agriculturalists rarely object. Consequently, uninterrupted user of such ridges is presumptively permissive, not adverse "as of right". Recognizing prescriptive rights over such field boundaries would create complications for agricultural re-arrangements and thus would be contrary to public interest.
  5. Failure to assert in consolidation: The court noted that during consolidation (Chaks formation) the plaintiff did not request a Chak road or a reserved passage over the disputed land. Although the Civil Judge may have been correct in concluding certain objections could not be raised under Sections 9 or 20 of the Consolidation of Holdings Act, the court observed that nothing prevented the plaintiff from asking the Consolidation authority to leave a passage when the Chaks were being carved.
  6. Absence of demarcation pillars: The plaintiff's attempt to rely on alleged stone pillars placed by the Consolidator as demarcation failed because there was a finding that no such stone pillars were found on the spot.
  7. Legal conclusion: On the basis of the established facts and the principle that ridge use is commonly permissive, the court concluded the lower appellate court misdirected itself in holding that the plaintiff had acquired a prescriptive right of way under Section 15. The nature of the user was presumed permissive and not adverse; therefore prescriptive right was not established.

Holding and Implications

Holding:

APPEAL ALLOWED; JUDGMENT AND DECREE OF THE LOWER APPELLATE COURT SET ASIDE; PLAINTIFF'S SUIT DISMISSED WITH COSTS.

Implications:

  • Direct effect on the parties: The decree granted by the Civil Judge in favour of the plaintiff is vacated; the plaintiff's claim for a prescriptive right of way over the 1–2 foot "Danda" fails and the suit is dismissed with costs throughout. The plaintiff's cross-objection seeking a decree to the full one Lattha width was dismissed due to concurrent findings that no such one-Lattha passage existed.
  • On legal principle: The court articulated that passing along ridges between agricultural fields is commonly permissive in villages and such permissive user should not lightly be converted into a prescriptive easement. The opinion emphasizes the necessity of distinguishing permissive user from adverse user and warns against recognizing prescriptive rights that would impede agricultural re-arrangements. This reasoning is based on the facts of the case and the court's view of public interest in the agricultural context.
  • Precedential note: The court distinguished the authorities cited by the plaintiff and held they do not support an automatic rule that long user alone establishes a prescriptive right; instead, the factual character of the user (permissive or adverse) is decisive.

Note: This summary is strictly confined to the facts, findings and reasoning contained in the provided opinion. No information has been added beyond what appears in that opinion.

Show full summary ...

    Smt. Bailey And Another v. Rama Shankar Lal And Others

    K.B Asthana, C.J:— The plaintiff-respondent brought the suit giving rise to this appeal for a permanent injunction restraining the defendants from interfering in any way with the right of the plaintiff, the members of his family, the labourers employed by him and the bullocks belonging to him from going to plot Nos. 9 and 10 over the Rasta MNPQ shown in the plan attached to the plaint and for directing the defendants to remove the portion of a wall MN marked in the plan aforesaid constructed by them. The plaintiff's case was that the passage claimed by him was one Lattha wide joining his plot Nos. 9 and 10 with the main public road in the north and passing over the boundary between plots Nos. 30 and 31 and that he, members of his family and servants had been using it for a period of more than 25 years as of right without any let or hinderance, thus they acquired a prescriptive right of easement under Section 15 of the Easements Act. The plaintiff further pleaded that the passage over the land MNPQ shown in the plaint map was the only access available to the public road from his plots Nos. 9 and 10. The defendants resisted the suit on the plea that there was no passage one Lattha wide as claimed by the plaintiff and what existed was a mere channel for irrigation purposes between the two fields Nos. 30 and 31 which the plaintiff claimed falsely as a passage. It was denied that the plaintiff as of right had been using any part of the land as a Rasta. It was further pleaded that the plaintiff had two or three years prior to the filing of the suit constructed a gate on the north of his plots Nos. 9 and 10 which were enclosed by boundary walls and has falsely put up the claim that the gate existed for a long time as the access point from the public road to plots Nos. 9 and 10. It was also pleaded that in the consolidation proceedings no such claim was ever asserted by the plaintiff and a Chak road was carved out on other plots from the public road which runs towards the east of the plantiff's plots Nos. 9 and 10 and he can reach his plots through the Chak road.

    2. The learned Munsif who tried the suit made a local inspection and found that there was no passage one Lattha wide as claimed by the plaintiff on the spot.

    3. He found that on the ridge between the two fields there was a beaten path 1 to 2 feet wide which lead from the main road in the north up to the northern boundary of the plaintiff's fields Nos. 9 and 10 passing over the boundary between plots Nos. 30 and 31. The learned Munsiff further found that the gate set up by the plaintiff in the north of his boundary enclosing plots Nos. 9 and 10 appeared to be new and fresh. As regards the wall alleged to have been constructed by the defendants, it was found that the defendants had enclosed their plots Nos. 30, 31 and 33 and that wall was also freshly constructed. The learned Munsif on a consideration of the entire evidence on record found that the plaintiff had failed to establish the existence of the passage as claimed by him as one Lattha wide sufficient for the plaintiff to carry his bullock carts and Ikkas, and dismissed the suit. On appeal by the plaintiff, the learned Civil Judge found that there was no passage one Lattha wide as claimed by the plaintiff on the spot but there was a ‘Danda’ a foot path, on the ridge between the boundaries of the two fields 1 to 2 feet which connected the plaintiff's enclosure on plots Nos. 9 and 10 with the main public road in the north. The learned Judge held that the plaintiff having established by cogent evidence that he, members of the family and servants had been using the ‘Danda’ for more than 25 years without any interruption the plaintiff acquired a prescriptive right of way under Section 15 of the Easement Act and to that extent decreed the plaintiff's suit restraining the defendants from interfering with the plaintiff's right to use the passage as found on the ridge between the defendants plots 30 and 31. The learned Judge further decreed the suit directing the demolition of the wall MINT constructed by the defendants. It may be stated here that the learned Judge affirmed the finding of fact recorded by the learned Munsif that there was no proof that the defendants had in any way after the formation of the Chaks in the consolidation proceedings reduced the width of the passage. He also affirmed the finding that the plaintiff had constructed a gate on the northern boundary of his Gher in plots Nos. 9 and 10 in the recent past. The defendants feeling aggrieved have now come up in second appeal.

    4. When this appeal was heard by me at an earlier stage, I sent down an issue for finding “Whether the plaintiff, his servants and cattle can have access to his grove in plots numbers 9 and 10 from the Ghazipur-Varanasi road by any pathway other than MNPQ marked in the Amin's map, paper No. 20C2 on record?” A finding has been returned to the effect that there is a Chak road running in the east of the plaintiff's plots Nos. 9 and 10 and at the south-east corner of the field of Prem Prakash adjacent to plaintiffs plots there runs a beaten track passing on the southern boundary of the plaintiff's Gher and if the plaintiff removed his hedges on the southern boundary, he can have access to his plots Nos. 9 and 10. A belated objection was filed to these findings which I admitted after condoning the delay.

    5. I do not find any merit in the objection raised to the finding recorded by the court below on the question of an alternative passage. It was urged by the learned counsel for the plaintiff-respondent that to the south of the plaintiff's Gher in plots No. 9 and 10 is the railway land and any time access through it can be stopped. Learned counsel, however, has not been able to satisfy me that the finding recorded by the court below that there is a well beaten track which is used by the villagers running adjacent to the southern boundary of the plaintiff erroneous. There is no evidence on record to show that the said beaten track is on railway land. Even if it were so, it cannot be predicated nor it is necessary to do so what rights have been acquired by the villagers on the land under the said beaten track. Suffice to say that there is an alternative passage through which the plaintiff can have access to his Gher in plots Nos. 9 and 10 from the public road.

    6. The main question that falls for determination in this appeal is whether the plaintiff can be said to have acquired a prescriptive right of way under Section 15 of the Easement Act on the ‘Danda’ running over the ridge between the two fields Nos. 30 and 31. Learned counsel for the plaintiff-respondent contended that the learned Judge of the lower appellate court rightly applied the law in holding that the plaintiff having proved that he has been passing over the disputed passage for over 25 years after purchasing plots Nos. 9 and 10 for enjoyment thereof without any let or hinderance, it would be presumed that he did it as of right. Reliance was placed in this connection on the cases of Hari v. Mahadeo . A.I.R 1921 Nag. 127., Phoolchand Narayan Dass v. Murari Lal Nathilal . A.I.R 1951 M.B 89. and Tukaram Rajaram Suple v. Sonba Chindu Mal . A.I.R 1959 Bom. 63.. In my judgment, the learned Judge of the court below seems to be of the view that once a person establishes his passing over a piece of land for more than 20 years without any evidence of interruption or hinderance, then he would be deemed to be doing as of right and he would acquire a prescriptive right of way under Section 15 of the Easement Act. Even the cases cited by the learned counsel for the plaintiff-respondent do not lay down any such rule of law. It would be seen that in all those cases on the facts and circumstance it was either found that the user was as of right or the user was not as of right but was by way of leave or licence. Here in the instant case the plaintiff came with a case that there was passage one Lattha wide on which bullock carts and Ikkas could pass and he had been using it for over 25 years as of right for access from the main road to his Gher in plots Nos. 9 and 10. This affirmative case pleaded by him has not been found to be established. What has been found established is that on the ridge between the boundaries of the two cultivated fields there was a passage 1 to 2 feet wide which could be used as an access from the public road to the agricultural plots in the village lying to the south of that public road. It is the common feature in our agricultural villages that on the Mend boundary between the cultivated agricultural fields public generally pass and hardly by habit any agriculturalist objects to it. I have no hesitation in holding that such passing over the ridges of the fields to and fro by the villagers would always be permissive user. Thus an uninterrupted user by any person of a ridge between the two agricultural fields for passing over it would be presumed to be permissive and not as of right. Moreover, it would not be in public interest if this court countenances recognizing acquisition of prescription right of way over the boundaries of the agricultural fields as that would lead to complication in the agricultural areas having a baneful effect and completely preventing the re-arrangements of agricultural fields or their divisions. In the circumstances of the instant case in the consolidation proceedings, on the own admission of the plaintiff, Rama Shanker Lal, who appeared in the witness-box, he did not ask for a Chak road over the disputed land. The view of the court below that such an objection could not have been raised under Section 9 or 20 of the Consolidation of Holdings Act may be a correct view but there was nothing to prevent the plaintiff when the Chaks were being carved to ask the Consolidation to leave a passage. The attempt of the plaintiff that the consolidation had put stone pillars demarcating the passage has miserably failed as there is a finding recorded that no such stone pillars were found at the spot which were put as demarcation by the Consolidator. I, therefore, hold that the lower appellate court has misdirected itself in holding that as of right the plaintiff had been using the ‘Danda’ for access to his plots Nos. 9 and 10 from the public road. It would be presumed that the user was permissive. The plaintiff could not succeed therefore, merely on the evidence as adduced by him that any prescriptive right of way has accrued to him under Section 15 of the Easement Act.

    7. There is a cross-objection filed by the plaintiff-respondent claiming that the suit ought to have been decreed to the full extent of the width of the passage as one Lattha. Since there is a concurrent finding of fact recorded by the court below that there was no passage one Lattha wide as claimed by the plaintiff, this cross-objection has no merit and is dismissed.

    8. The result, is that the appeal is allowed, the judgment and decree of the lower appellate court is set aside and the plaintiff's suit stands dismissed with costs throughout.

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    Comments

    Smt. Bailey And Another v. Rama Shankar Lal And Others
    (May 14, 1975)