M.P Mehrotra, J.:— This is plaintiffs' appeal. The trial court decreed the suit for declaration and injuction. The lower appellate court, however, modified the decree. The brief facts are these:
2. The plaintiffs claimed over the disputed land the right of passage and the right to flow water through a Nali which also passed through the disputed piece of land. The rights were claimed on the basis of prescription. The courts below have given a concurrent finding that the plaintiffs had proved the rights which they claimed. The trial court had decreed the suit in full but the lower appellate court modified the decree.
3. The trial court had given a declaration that the plaintiffs had a right of way over the entire land in dispute which had been marked in red ink in the map attached to the plaint. Similarly, the right of flowing water through the disputed Nali as shown in the said map was also decreed. Permanent injunction was granted restraining the defendants nos. 1, 2 and 4 from causing any interference in the said rights of the plaintiffs. The modification effected by the lower appellate court was that it declared in this manner:
“…………that in case the servient owners choose to make any constructions or to enclose the disputed land otherwise they would leave 5′ (five feet) side passage for the plaintiffs and this passage would be left adjacent to and on the west of the line AB marked by me on the site-plan which forms part of the decree of the trial court. The ‘Nali’ of the plaintiffs also flows over this land and the right of the plaintiffs to discharge their water from their houses would also be restricted to the aforesaid 5′ wide piece of land. The rest of the decree of the trial court confirmed.”
4. In my opinion, the lower appellate court should not have made the said modification. Once the courts below held in favour of the plaintiffs in respect of their claim that they had an easementary right of passage over the entire disputed land, it was not open to the lower appellate court to curtail the said easementary right of passage acquired by prescription by restricting it to a 5′ wide passage instead of 15′ wide passage which had been claimed by the plaintiffs in the plaint and which claim had been found to be correct by the courts below.
5. In this connection, a reference may be made to section 28 which deals with the extent of easement. A reference to the said section will show that in clause (e) it is laid down:
“The extent of every other prescriptive right and the mode of its enjoyment must be determined by accustomed user of the right.”
6. In view of this clause, it was not open to the lower appellate court, after the finding of fact had been accepted about the acquisition of the prescriptive right of easement over the entire disputed land, to seek to cut down the said right by reducing the width of the passage from 15′ to 5′ only. It should be emphasised that the courts below were not dealing with an easement of necessity where the extent of easement may be determined with reference to the necessity and reasonableness of the plaintiff's claim in respect of the extent of such claim. The courts below were dealing with a claim of the plaintiffs based on the acquisition of easementary rights by prescription.
7. Learned counsel for the respondents has contended that an admission was made on behalf of the appellant and, therefore, the appellant is bound by the admission and in view of such admission, this appeal is not maintainable. I do not agree. In the judgment of the lower appellate court, it is said:
“It is further contended that if the plaintiffs are allowed to use the entire land in dispute as their passage, the defendants who claim themselves to be the servient owners would not be in position to use the land in dispute for their benefit. This proposition of law has not been disputed by the learned counsel for the plaintiffs' respondents.”
8. Now, firstly it has to be pointed out that the lower appellate court has treated the admission to be one on a proposition of law. It is well known that the admissions of the parties or their counsel on, question of law are not binding. In this connection, learned counsel for the appellant has invited my attention to the case Shiv Singh v. The State Transport Appellate Tribunal, AIR 1969 Allahabad 14 where it is laid down:
“Admission or erroneous opinion on question of law by parties counsels in lower court not binding on that party while seeking relief in appeal.”
9. Moreover, from the passage extracted above, it seems that the only admission which the appellant's counsel made in the lower appellate court was to the effect that in case the plaintiffs were allowed to use the entire land in dispute as their passage, the defendants would not be in position to use the land in dispute for their benefit. This concession cannot be treated as an admission that the appellant's counsel agreed that the plaintiff's right over the entire piece of disputed land could be curtailed so as to reduce the width of passage from 15′ to 5′ only. It is well known that a concession or admission has to be strictly construed and, therefore I do not think that the appellants should be held to be out of court on account of the so called admission by their counsel in the lower appellate court.
10. In the result, the appeal is allowed. The lower appelalte court's judgment and decree are set aside and the trial court's decree is restored. In the circumstances of the case, the parties shall bear their own costs.
K.J.C
11. Appeal allowed.
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