1. In this Regular Second Appeal under S. 32 of H.P Courts Order, 1948 against the judgment and decree D/- June 20, 1984, by defendant Mehar Singh and others, the sole question for determination is:

“Whether plaintiffs have succeeded in establishing their right to take water from Kiar Khad to their ghrats on the basis of custom?”

2. Before I proceed to determine the aforesaid question, it would be appropriate to detail certain necessary facts leading to the instant appeal. Respondents are plaintiffs whereas appellants are defendants (shortly hereinafter referred to as plaintiffs and defendants). The plaintiffs filed a suit for permanent injunction restraining the defendants from taking the water from Kiar Khad to their newly constructed ghrats at point “A” through water channel indicated as “B” in the map annexed with the plaint, or from interfering with their rights to the use of the water. Plaintiffs assert the existence of their ghrat in khasra No. 56 and 55/1 situate in chak Kiar, Teh, Theog in two buildings. There are three chakis in two ghrats out of which one belongs to the defendant. Plaintiffs allege that said ghrats were in existence since time immemorial and were being run since then by the water from the aforesaid Kiar Khad. Plaintiffs further assert that about 8 or 9 years back, defendants constructed a new ghrat in khasra No. 21 at point “C” referred to in the map aforesaid. However, no interference in the flow of water was created by the defendant at that time, as they did not raise any objection. According to them, later on defendants interfered with the flow of water by construction of a separate channel to their newly constructed ghrat which resulted in the filing of the instant suit. The main ground alleged is that according to law and custom of the illaqua, the flow of water which serves the ghrats cannot be impeded or curtailed. The plaintiffs' right to take water from Kiar Khad to their ghrats is indefeasible and absolute, their ghrats being in existence since the time immemorial and lawfully constructed. They have been using the said ghrat as of right openly and peaceably for more than 50 years.

3. Defendants resisted and contested the suit. The existence of ghrats in two buildings and that of three chakis in khasra Nos. 55 and 56/1 was admitted by the defendants but they claimed that one chaki only belonged to Basant Singh plaintiff. The functioning of the said two ghrats since the time of their ancestors for the last more than 50 years was admitted. So far as the custom pleaded by the plaintiffs is concerned, the only objection raised was that particulars of the custom had not been pleaded by the plaintiffs. As regards the construction of the new ghrats, it was admitted that the building thereof was constructed as back as 9-10 years. Nothing has been contended by the defendants in their written statement with respect to the fact as to since when the new ghrat owned by them allegedly constructed afresh started functioning.

4. On the pleadings of the parties, the trial Court framed the following issues:

1. Whether the defendants constructed a ghrat in khasra No. 21 in 1968 as alleged? Opp.

2. If issue No. 1 is proved, whether the water supply to the ghrats of the plaintiffs has been diminished as alleged? Opp.

2-A. Whether there is a custom in the illaqua regarding the flow of water which serve the ghrats? If so, what is that custom? Opp.

2-B. Whether the plaintiffs have acquired the right of using water for the ghrats as an easement as alleged? Opp.

2-C. Whether the suit is not competent as alleged? Opp.

2-D. Whether the plaintiffs are entitled to the relief of injunction as prayed for? Opp.

It is worthwhile to state that issues 2-A to 2-D were framed later on by the order of the first Appellate Court when the suit was remanded back for decision afresh.

5. The civil suit was instituted on 17th Sept., 1970 and the trial Court initially decreed the suit on 30th Nov., 1976 vide its judgment and decree which were assailed in appeal before the first Appellate Court. The appeal was accepted and the case was remanded and fresh issues as indicated above were framed. Thereafter, the trial Court vide its order dt. May 31, 1982 dismissed the suit but the same was appealed against and the first appellate Court accepted the appeal, set aside the judgment and decree of the trial Court and decreed the suit, as prayed for vide the impugned judgment. Feeling aggrieved with this judgment and decree, defendants have come up in this appeal.

6. Mr. Bhupender Gupta, learned counsel for the appellant, has contended that the plaintiff has set up a prescriptive right of easement with respect to the flow of water from Kiar Khad as per his pleadings and no case on the basis of local custom has either been pleaded or proved. As per him, in view of the pleadings of the parties, the first appellate Court committed a grave error in having set up a new case in the absence of any pleadings or proof on record with respect to the plaintiffs' right to the flow of water based on local custom. Alternatively, it has been urged that the plaintiff cannot be allowed to succeed on the basis of prescriptive right of easement claimed by him simultaneously based on local custom as alleged.

7. At the very outset, it may be pointed out that the easement and customary easement are distinct in nature. Section 4 of the Easements Act 1882 (hereinafter referred to as the Act) defines easement whereas S. 18 thereof deals with customary easement. The main characteristics of easement are:

(i) There must be dominant and a servient tenement:

(ii) The easement must accommodate the dominant tenement.

This is clear from the definition of easement given in S. 4 of the Easements Act, 1882. The relevant portion of that section runs as under:

“4. 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.

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

It is clear from the above that an easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Rights which are by a community or class of persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenement. Indeterminate and fluctuating body of persons such as the public or the community cannot have an easement. A customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body of persons like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general.

8. It is also well established that when plaintiff bases his case on custom, he must actually plead custom in his plaint and prove it by cogent evidence. Thus, the question for determination in this case is as to on what basis the first appellate Court has dealt with the lis in question. To this effect, it would be relevant to refer to para 9 of the impugned judgment:

“There is nothing in the plaint whereby one could even remotely infer that the easement right claimed was by way of prescription. Simply because it has been pleaded that said right was being claimed for more than 50 year will not mean that right claimed was by prescription, but, on the other hand the aforesaid pleading definitely reflected that the right claimed was under custom.”

I am in full agreement with the observations made by the first Appellate Court inasmuch as mere reference of user of the flow of water for running the ghrat from time immemorial openly, continuously, without interruption and for more than 50 years does not make the case of the plaintiffs having been based on prescriptive right. In this case it is clear that the local custom has been pleaded and for that purpose the plaint discloses the particulars in para 2 read with para 5 of the plaint. In the earlier para, plaintiffs have pleaded that the aforesaid two ghrats in two buildings having three chakis are in existence since the time of their ancestors and both these ghrats are fed by water from Kiar Khad, whereas in the later para, it has beer pleaded that “according to law and custom of illaqua, the flow of water which serves the ghrat cannot be impeded or curtailed……” Defendants have not denied the existence of custom so pleaded but simply it has been stated that it lacks particulars. Now, pre-requisites of a valid custom are that it must be ancient, invariable, reasonable, certain, continuous and must have been peaceably and openly enjoyed. The assertions made in the pleadings of the parties are to be read as a whole and not in piece meal fashion. The factum of specific expressions needed to make a custom to be a valid one as indicated above, having not been expressed in the plaint, does not mean that custom is not pleaded. In the instant case, specific allegation with respect to the user of the flow of water from Kiar Khad is that according to local custom, the flow of water to the ghrats can neither be impeded nor curtailed. It is not only the duty of the plaintiff to assert a particular fact like the existence of the custom so pleaded but equally it is the duty of the defendants to admit or deny the said fact and claim exception as to whether it is reasonable or not. The pre-requisites of a valid custom are to be concluded by the Courts on the basis of the evidence adduced by the parties and not only with reference to the allegations and counter allegations made by them. Thus, in this view of the matter, the assertion of the defendants that the custom has not been pleaded or that the plaintiff has set up his case exclusively on the basis of prescriptive easement, is not correct and to that extent, the submission made by the learned counsel for the defendants-appellants being meritless, is rejected.

9. Now coming to the next question as to whether the decision arrived at by the learned first Appellate Court is legally justified or not, I advert to the evidence adduced by the parties, inasmuch as the instant appeal has been filed under Para 32 of the H.P Courts Order, 1948, whereunder this court is empowered to re-appreciate the evidence. There is no controversy in between the parties that issues 2-A to 2-D were framed vide order D/- 7-9-1981 subsequent to the remand of the case by the first Appellate Court. The dispute as to the local custom has been raised through issue 2-A, meaning thereby that not only the said custom was pleaded but the same led to the framing of the issue and both parties being alive to the real controversy arising in between them, also led evidence to prove or disprove their respective claims. Now the only question is whether the evidence so adduced, does indicate the local custom so pleaded to be a valid one or not. In this behalf, the testimony of S/Sh. Kehar Singh, Daulat Ram, Kamna Ram — PWs. 8 to 10 and Mehar Singh, Mani Ram and Nikka Ram (DWs 5 to 7) besides wazib-ul-ars Ex. PE are material. Kehar Singh (PW-8) is one of the plaintiff. In his testimony, he has categorically stated that as per the local custom, a person is entitled to make use of the flow of water to his ghrat and such flow of water cannot be impeded or curtailed by any other person. Similar is the statements of PWs 9 and 10. Rather, Mehar Singh-defendant, while appearing as DW-5 has admitted the existence of such custom pertaining to the use of water for running of ghrat. According to him, the owner of the ghrat is entitled to so much water as is needed for its proper running and he is not entitled to the excess water. In his cross-examination, he has admitted that whatever flow of water is needed for the proper functioning of the ghrat, that cannot be impeded or curtailed by any person. In addition, he has admitted that the chaki belonging to the plaintiffs is being run since the time of his ancestors and the same is fed from the water of Kiar Khad. According to him, flow of water has not been diminished by him. It is to be noted that earlier he appeared as DW-1 wherein, in his cross-examination, he has categorically admitted that water of Kiar Khad coupled with that of the flow of water from Devi ghrat used to be used for the running of the ghrats belonging to the parties since the time of their ancestors and those ghrats used to function throughout the year. He has also admitted that water taken to the ghrat of the plaintiff from a particular point known as Malaun and that the water which now flows to his ghrat, falls ahead of the said Malaun; meaning thereby that flow of water from Kiar Khad to the ghrat of the plaintiff has been diminished. The existence of the local custom with respect to the use of the water from Kiar Khad has also been admitted by DWs 6 and 7. Rather, wazib-ul-ars cements the statements so made by the witnesses adduced by the parties. The contents of wazib-ul-ars Ex. PE categorically recites that none is entitled to impede, curtail or diminish the user of the flow of water, whether it is for irrigation, drinking purposes or for running ghrats. Now wazib-ul-ars (village administration paper) is a part of revenue record and is a statement of customs reciting rights and liabilities in an estate and presumption of truth attaches to it. The entries made therein are presumed to be correct. The defendants have not disputed the genuineness or validity of this document. The first appellate Court, in view of the aforesaid positive evidence on record, has rightly concluded that the case set up by the plaintiffs is on the basis of local custom so pleaded and proved. I do not find any infirmity in the impugned judgment and decree.

10. In view of the above findings, the appeal is dismissed, but with no order as to costs of this Court. The impugned judgment and decree of the first appellate Court is upheld.

Appeal dismissed.