Re.: Issues. Error in Issue No. 1.-- On the pleadings referred to above, the learned Judge framed issues and the parties went to trial. The most important issue is Issue No. 1. But the very manner in which Issue No. 1 is framed reveals the Court's confusion about the nature of right claimed by the plaintiff. Issue No. 1 runs as follows:--
"1. Whether the plaintiff proves that he is entitled to draw water from a pond of water in plot No. 12?"
It will be readily seen that said Issue No. 1 is framed in an excessively broad manner. The plea of the plaintiff was not merely that he was "entitled" to draw water from the defendant's pond. That would make no sense unless he had specified the basis which "entitled" him to draw the water. He had stated that basis. His plea was that he had a customary right to draw water from the pond. He has not pleaded his right to take water from that pond on any other basis such as customary easement or any other kind of easement. Customary right to draw water from the pond was the exclusive basis for the claim made by the plaintiff.
The learned Judge has, on the other hand, framed the said Issue No. 1 in the broadest possible manner, thereby giving liberty to the plaintiff to squeeze into his claim any material he likes and to prove his claim the way he likes. Such framing of issues cannot be justified. As will be presently pointed, between customary right and customary easement there exists a world of difference.
Bombay High Court
Smt. Radha Krishna Kandolkar And ... vs Tukaram Pundalik Homkhandi on 30 March, 1990
Citations: AIR 1991 Bom 119, 1991 (1) BomCR 315
Bench: S Manohar
1. This is a defendant's appeal arising out of a decree for perpetual injunction passed by the Civil Judge, Junior Division, Panaji, restraining them from preventing the plaintiff from drawing water from the pond situate in Lote No. 12 and restraining them from preventing the plaintiff from constructing a "mer" in the defendant's land for the purpose of irrigation of the "vaingan" crop of the plaintiff in the land Lote No. 13.
The decree passed by the trial Court was confirmed by the Appeal Court and hence, this second appeal to this Court.
2. Facts and Pleadings.--The facts out of which the appeal arises may be briefly stated as follows:--
Land Lote No. 12 belongs to the defendant. The adjacent land Lote No. 13 belongs to the plaintiff. Both the Lote Nos. 12 and 13 belong to the common landlord, namely the Communidade. It is the case of the plaintiff that he came into prossession of the land Lote No. 13 as a tenant since about 30 years before the date of the suit. According to him, in Lote No. 12 which is in possession of the defendant as a tenant of the Communidade, there is a pond and the plaintiff has been taking water from that pond for the purpose of irrigation of his own "vaingan" crop which he makes in the land Lote No. 13. For doing so, he avers, he used to construct a "mer" in the land Lote No. 12 in the lawful possession of the defendant and his claim is that he has been doing so for the last 30 years before the suit. His further claim in the plaint is that he is doing so as a matter of customary right. This is what the plaintiff states in para 4 of the plaint in this behalf:--
"In the Lote No. 12 there is a pond of water which supplies water for vaingan crop to Lote No. 12 and Lote No. 13. The water of the said pond is brought to Lote No. 13 by constructing an artificial "mer" and this practice is being followed since the time the plaintiff cultivated the said field."
As will be presently pointed out, the emphasized portion of the above averment itself is enough to non-suit the plaintiff. In para 5 the plaintiff has made the following averment relating to his claim of a customary right to use of water from the said pond. According to the plaintiff, in the inquiry held by the Sub-Divisional Magistrate, Panaji, it has been held that:
"Plaintiff has a customary right to use water from the big pond situated at top of the plot No. 12 of the paddy field "Namo Khazan Cantor" for the agriculture in the vaingan season of the lote No. 13."
Taking the above two averments together it may be inferred that the plaintiff has claimed a customary right to :
(a) take water from the pond belonging to the defendant and situate in the land of the defendant; and
(b) to construct a "mer" through the defendant's land uptil the plaintiff's land with a view to take water to the plaintiff's land from the pond in question.
There is no dispute before me that what was claimed by the plaintiff was customary right to take water, but simultaneously the kind of customary right that he has pleaded is that the right existed only from the time when he started cultivating his land Lote No. 13 about 30 years before the date of the suit. He, thus, claims to be the progenitor of the "custom" in his own favour.
3. Defence.-- Defendant has squarely denied any such right belonging to the plaintiff. He has denied that the plaintiff took water from the pond belonging to the defendant in the defendant's land as a matter of right. His contention is that in fact the plaintiff has constructed another pond in his own land Lote No. 13 and has been taking his "vaingan" crop with the help of the water in that pond. He has averred that he, the defendant, constructed a larger pond in his own land Lote No. 12 and improved the walls of the pond and started accumalating larger quantity of water in the pond because he wanted to get better crop in his own land Lote No. 12. According to him, when the plaintiff saw this larger supply of his water obtained by the defendant to his own land, he, (the plaintiff) became avaricious and started making this false claim to draw water from the defendant's pond.
4. Re.: Issues. Error in Issue No. 1.-- On the pleadings referred to above, the learned Judge framed issues and the parties went to trial. The most important issue is Issue No. 1. But the very manner in which Issue No. 1 is framed reveals the Court's confusion about the nature of right claimed by the plaintiff. Issue No. 1 runs as follows:--
"1. Whether the plaintiff proves that he is entitled to draw water from a pond of water in plot No. 12?"
It will be readily seen that said Issue No. 1 is framed in an excessively broad manner. The plea of the plaintiff was not merely that he was "entitled" to draw water from the defendant's pond. That would make no sense unless he had specified the basis which "entitled" him to draw the water. He had stated that basis. His plea was that he had a customary right to draw water from the pond. He has not pleaded his right to take water from that pond on any other basis such as customary easement or any other kind of easement. Customary right to draw water from the pond was the exclusive basis for the claim made by the plaintiff.
The learned Judge has, on the other hand, framed the said Issue No. 1 in the broadest possible manner, thereby giving liberty to the plaintiff to squeeze into his claim any material he likes and to prove his claim the way he likes. Such framing of issues cannot be justified. As will be presently pointed, between customary right and customary easement there exists a world of difference.
The fact that the plaintiff has failed to prove even any other kind of right or easement in any manner whatsoever is a different Story.
5. The nature of plaintiff's evidence.-- In support of his claim, the plaintiff examined witnesses and relied upon a document. I am tempted to describe that document, Exh. P.W.1/A, as a beautiful document. The defendant has examined his son, because as stated by him in his written statement, he was very much ill and was unable to give evidence. This position is not disputed.
I may mention at this stage itself that excepting the two witnesses and the beautiful document, the plaintiff has relied upon no other evidence. He has led no evidence to prove the custom from which, basically, his so-called "customary right" to draw water from the defendant's pond emanated. The evidence led by the plaintiff aims, exclusively, at proving that he had been taking water from the defendant's pond for 30 years. This is not an evidence of custom. All the same both the lower courts have swallowed the plaintiff's plea hook, line and sinker, just because the two witnesses stated that they had seen the plaintiff drawing water from the defendant's pond for his (plaintiffs) crops in the land, Lote No. 13 and because the beautiful document Exh. P. W. 1/A contemplates some kind of pond in the defendant's land. What the Courts have failed to appreciate is that the evidence led by the plaintiff is no evidence at all. Neither of the Courts below has applied its mind to the question as to whether a customary right can be created just by 30 year's user (assuming that the said 30 years' user is proved), all by himself without its recognition by the community as a whole.
6. Difference between customary right and Customary easement.-- There is a world of difference between a customary right and customary easement. In fact easement is not a word even as much as whispered in the Plaint. An easement is required to be acquired by particular modalities. But the easement goes with the land or, rather with the lands : the land which claims the easement (dominant tenement) and the land which is subjected to easement (servient tenement).
As regards the modalities of acquisition of easement, none has been either pleaded or proved. Customary easement vests in the dominant tenement; not in the particular person or a group of persons (unless they are rightfully in possession of the dominant tenement in question). A customary right, on the other hand, is claimed by a person or by a group of persons on the basis of the custom recognised by the community as a whole. From the very nature of things, a customary right is the one which results from a custom and hence, the custom has got to be pleaded and proved in the usual manner, indicated by the Evidence Act. The object of proof and the mode of proof are entirely different in the two cases. Failure to appreciate this distinction has resulted in a thoroughly illegal decree of injunction being passed by the Court below.
7. Plaintiff's Evidence : No evidence, in law.-- Reverting back to the nature of the evidence led by the parties and the appreciation of the same by the Courts below, what needs to be noted is that the plaintiff's evidence is no evidence at all. AH the plaintiff's witnesses stated, admittedly, that during the last 30 years before the suit, the plaintiff was drawing water from the defendant's said pond. I have gone through the evidence just with a view to satisfy myself whether any legal evidence to support the plaintiffs claim existed and I have noticed that no witness has stated as to whether the plaintiff was drawing water from the disputed pond as a matter of right or whether he was drawing it by the mere permission granted by the defendant. The defendant has stated in his written statement, in terms, that, out of friendly relations, he did allow the plaintiff to take water from the disputed pond on some occasion. His specific plea is that this fact gave no particular right to the plaintiff to draw water from the disputed pond for all the time to come. Nothing is stated by any of the plaintiff's witnesses nor by the plaintiff himself, which proves anything having been done by the defendant, in the last 30 years, which converted the plaintiff's act of drawing water from the disputed pond which has rigidified into a right to draw that water.
Whether that act resulted in a customary right in favour of the plaintiff or not is an entirely different question. About the so-called customary right, neither the plaintiff nor any of his witnesses has as much as murmured one word. Thus, the custom is not pleaded; nor any evidence is led to prove that custom from which alone the customary right could emanate.
8. Essentials of proof of customary right.-- This brings me to the question as to what is required to be proved by the plaintiff when he claims a customary right to draw water from the defendant's pond. A customary right is recognized even by the Easement Act (See S. 2). But can be claimed not as a mere personal right of the plaintiff vis-a-vis the particular defendant. It is the right of the community or the right recognized by the community as a whole. Normally, a custom has got to be immemorial, in the sense that its origin may not be traceable. In any event, it has got to be of very long duration, and of very remote and distant origin. It may be that it is not strictly speaking immemorial on certain occasions because the courts may come across witnesses sufficiency old to remember that during some time in the past in their childhood, such a custom did not prevail. But to prove the custom the long uninterrupted practice recognized by the community as a whole has got to be established. Law on this point is to be found in the Evidence Act, reference to which will be made presently. The custom may also have its origin in some lost grant. In such a case it will not be strictly speaking, a customary right but a right flowing from the lost grant, but even then the custom can be proved by exercise of the right by the community or locality. In all such cases members of the community must be examined to prove the existence of such a longstanding custom as the community's custom. The mere statement by a witness that he saw the plaintiff using the defendant's pond for watering his own crop on his own land does not amount to evidence of custom recognized by the community. Moreover, it is anomalous to hold that merely because the plaintiff was allowed to take water from the defendant's pond and that he was taking water in such manner for nearly 30 years does not create any custom enforceable against the defendant. By and large the custom has got to be recognized by the community as a whole. The beneficiary of the custom may be an individual. We have for instance, customary right for a particular member of a family and his descendants to perform the puja of a deity. The beneficiary of such custom is no doubt, a particular member of a family. But the point is that the custom is recognized by the community as a whole and that is why it partakes the character, in a sense, of customary law applicable for the people governed by that custom. The custom is not vis-a-vis individuals with the community having no interest in the same. It can never be. But this is the precise thing sought to be pleaded and proved by the plaintiff and hence, this suit is liable to be dismissed on this narrow ground itself.
I am of the view that this is so much of a settled law that no authority as such, is necessary for this purpose, but if any authority is to be cited, one may conveniently refer to the judgment of the Nagpur High Court in Raghoba v. Anandabhai AIR 1930 Nagpur 40, where it has been held that a customary right can be acquired only in favour of a class or community.
There are other aspects of this question which will be discussed presently in a separate para.
9. What is set up by the plaintiff is not custom at all.-- In para 2 above, I have extracted the relevant portion of the plaint which shows that the real claim of the plaintiff is not even of custom. What he has set up, in reality, is a practice which is according to the plaintiff, "being followed since the time the plaintiff cultivated the said field". This is not a pleading of custom; this is not a pleading of its distant origin. This does not spell even the frills of custom, far less of any customary right.
As stated in para 2 above, the extracted averment in the Plaint itself is enough to nonsuit the plaintiffs.
Moreover out law does not know of cases where the plaintiff claims a right flowing from a custom is or can be himself the progenitor of he custom; From the nature of things, a custom is something the originator of which is known to none by certainty. Ex hypothesis, herefore, plaintiff cannot claim to have started a custom. He may start a practice (which is pleaded by him). But the practice cannot lead to the legal consequence to which a custom leads.
The claim of the plaintiff, thus, is nothing but a result of confused thinking.
But the worse is still to come.
10. The beautiful document.-- In support of his claim for customary right the plaintiff relied heavily upon a certificate issued by the Comunidade giving an extract of some book of agreements and assessment of paddy fields. Mr. Bhobe appearing for the respondents, placed strenuous reliance upon Clauses Tenth and Twelfth of the said certificate (agreed translation of which was produced before this Court). The said Clauses Tenth and Twelfth run as follows:--
"Tenth -- The water (of rains I say) of ponds, dams and springs shall be dammed as per the usage and customs. Twelfth -- Each one of the tenants of the Lotes No. 11, 12, 13 and 15 of the "Casana Cantor" shall make 'advon' at the actual sites of width and height of 50, 90 and 90 centimetres respectively."
Even a cursory glance at these two Clauses is enough to show that the two clauses have not a Ghost of a relevance with the kind of right claimed by the plaintiff. All that Clause Tenth says is that the rain water shall be dammed in ponds, dams and springs as per the usage and custom, meaning thereby that the damming operation will not be in any other manner. The Clause gives no inkling about the question as to who is to be the beneficiary of the water in the pond. In any event, the Clause does not even indicate that the water in the pond can be used, as of right, by anyone who does not own the pond.
The Twelfth Clause refers to the duties to be performed by the owners of Lote Nos. 11, 12, 13 and 15. It imposes upon them an obligation to make "advon" (kind of bunding) in their own lands of the width and height of 50, 50, 90 and 90 cms. respectively. Evidently, this has no reference whatsoever to the plaintiff's right to take water from the defendant's pond.
Curiously enough, it is this glorious document that both the Courts below have concurrently relied upon to arrive at the beautiful conclusion that the plaintiff has established his right to take water from the defendant's pond as a customary right. Evidently, the lower Courts had not either read or (at least) applied their minds to these Clauses at all. It is riot of reasoning or failure of reasoning and it is this failure on the part of the lower courts that has vitiated their judgments and has necessitated this Appeal.
Mr. Bhobe made a feeble attempt to place some reliance upon the Clause "Sixth" in the certificate. I will simply set out that Clause Sixth and that will be enough to prove the complete irrelevance of the said Clause so far the present dispute is concerned. The said Clause runs as follows:--
"Sixth.-- The Lotes of the cultivation of rabi (vaingan) crop shall be sown till the 30th November and those of (xe 1 say of) Kharif (sorod), if the process of cultivation is "Xell" till the 10th May and the remaining one till the 15th June. If, however, the seed thrown is not sprouted owing to any circumstance or is destroyed by snails it is open to the tenant to do the transplanation in the respective Lotes till the 10th July with tender shoots, giving notice of this fact in due course to the watchman and the attorney of the Comunidade."
No further comments are necessary on the relevance of this Clause Sixth.
11. Some aspects. Some authorities.-- It is worth-while examining a few authorities on some of the aspects of the basic question arising in this proceeding.
(a) .-- In all these cases the question of burden of proof assumes quite some significance. It has assumed particular significance in the present case because no legal evidence is led by the plaintiff to vindicate the existence of any custom as such and still the lower Courts have proceeded upon the basis that the custom existed merely because there was a pond in the defendant's land, Lote No. 12.
In 'Mohammad Baguer v. Naim-un-Nisa Bibi, , the Supreme Court has held that "the burden of proving a custom in derogation of the general law being heavily upon the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them". Even in that case, no documentary evidence was produced in support of the plaintiff's case of customary right. We have seen that in the instant case the plaintiff has produced the beautiful document, which is not worth the paper it is typed on, so far as the question of supporting any customary right is concerned.
Even larger number of witnesses were examined by the plaintiff in that case, but the Courts refused to be impressed by their evidence because their evidence did not relate to any custom as such. Even in the present case, the two witnesses examined by the plaintiff in addition to his own evidence do not say anything which pertains to any custom as such.
(b) .-- A custom is not a matter of creation by any individual by mere repetition of the act even for thirty years. A thirty years' practice of going over another person's land may give the owner of the dominant tenement an easement by prescription, but that is a far cry stating that a customary right was created in favour of any such person. In , a question of some such kind had arisen and it was held that a customary right could be based on long immemorial user only.
(c) Nature of evidence to establish custom in supersession of general law. AIR 1924 PC page 5.-- I have referred in para 8 to the essentials of proof of a customary right. The customary right pleaded by the present plaintiff cannot but be the result of some local custom, although he has not pleaded any particular kind of custom as such. After all, it can be a local custom or a family custom, or a special custom, or general custom. None of these has been pleaded by him. But assuming that a local custom is contemplated, the method of establishing the customs has been laid down by the Privy Council in the case of 'Kumar Satya Narain Singh v. Raja Satya Niranjan Chakravarti (AIR 1924 PC 5)'. There the Privy Council was distinguishing a local custom from a family custom and this is what the Privy Council has stated in its judgment:--
"A local custom is one binding on all persons in the local area within which it prevails, and differs entirely from a family custom, binding only on members of the family as to rule of descent and so forth; Rajkishen v. Ramjoy (1876) ILR 1 Cal 186). It is one which must be pleaded with particularity as to the local limits of the area of which it is alleged to be the custom and the evidence must be evidence as to the prevalence of the custom in that area."
(d) Special custom. . -- Assuming that what is contemplated is the special or a general custom, this is what the Supreme Court has to say about it in the case of 'Harihar Prasad Singh v. Balmiki Prasad Singh "But in the first instance it is for the plaintiffs to prove the existence of the custom and if they fail to do so they cannot succeed on the basis that the defendants did not succeed in proving that the custom did not exist."
In the instant case, all that the plaintiff has done is to examine two witnesses and himself to say that he used to take water from the pond in dispute. Not one word is uttered by anyone about custom, without which a customary right cannot exist.
(e) Re : Custom in general. AIR 1964 SC page 118.-- In 'Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Mannar Sultan Bahadur v. Sri Pushpavathi Visweswar Gajapathiraj Rajkumar. The Supreme Court was required to lay down law in respect of method of proof of a valid custom. The custom pleaded in that case related to deviation from the general law of succession. While laying down the law relating to custom, they followed the principle laid down in (1872) 14 Moo Ind App 570 and AIR 1917 PC 181 and held that :--
"it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends."
In my opinion all the authorities mentioned above fully bear out statement of law set out by me in para 8 above.
(f) Is the pleaded right reasonable and certain?. -- I may mention here that one of the essentials of custom is that it must be reasonable and certain. Mr. Lotlikar invited my attention to the topographical and geographical position and pointed out that by the "mer" referred to by the plaintiff, which he claimed to have constructed every year through the defendant's land, a large portion of the defendant's land would be completely devastated. This means that the defendant repairs and constructs the bund for getting more water for his own land; plaintiff takes water through the "mer" on the defendant's land and defeats the very defendant's purpose of getting the bund repaired and this the plaintiff does for the purpose of giving water to the crops on his own neighbouring land. All this is most preposterous, argued the counsel.
Another point raised by Mr. Lotlikar was that there was not even any certainty about the right. The plaintiff has led no evidence about the actual place over the defendant's land over which the "mer" is to be constructed.
I am in general agreement with him, but these are questions of fact and hence, I have not examined that aspect of the matter quite fully.
12. Final Order.-- The Appeal therefore, succeeds. The decree passed by the trial Court and confirmed by the Appeal Court is hereby set aside and the defendant's appeal is allowed with costs throughout.
13. Appeal allowed.
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