JUDGMENT
D.K. Seth, J.
1. The order dated 20th August. 1999 passed by the learned Additional District Judge. VIIth Court. Azamgarh in Misc. Civil Appeal No. 310 of 1998 reversing the order dated 17th November, 1998 passed by the learned Civil Judge. Junior Division. Azamgarh in O.S. No. 1285 of 1997 has since been challenged in this petition.
2. Mr. U. K. Mishra, learned counsel for the petitioner contends that the impugned order dated 20th August, 1999 could not have been passed restraining the plaintiff from interfering with the possession and his right to rear fish and its enjoyment and or catching the same in view of the provision contained in Order XXXIX, Rule 1 of the Code of Civil Procedure. According to him, the defendant cannot take advantage of Order XXXIX, Rule 2 because of specific provision contained therein particularly in the absence of any contract between the parties. So far as the Order XXXIX, Rule 1 is concerned, the defendant could have fallen back only on clause (a). But in no way redress could have had by the defendant in clause (b) and (c) of Rule 1. As such in the absence of any ingredient within the meaning of clause (a), the order passed by the Appeal Court could not be sustained. Relying on a decision in the case of Kirat Singh and another v. Madho Singh and others, (1979) AWC 296, in which this Court had held that Order 39, Rule 1 did not authorise the Court to restrain the plaintiff at the instance of the defendant unless there is a finding that the property in dispute was in danger of being wasted, damaged or alienated by any party to the suit. Mr. Mishra had also relied on the decision in the case of
Abdul Gaffar v. State of U. P. and others. 1998 (1) AWC 706 in order to contend that there cannot be any renewal of lease through or to private negotiation. According to him, the lease was renewed through private negotiators and as such the defendant could not claim any right on the basis thereof. Thus, the impugned order cannot be sustained.
3. Mr. I. R. Singh, learned counsel for the opposite party on the other hand contends that the plaintiff did not pray for any declaration of right in his favour except that he has easement right over the suit property. He has not asked for any declaration that the lease granted in favour of the defendant is invalid and cannot be acted upon. As such, he cannot maintain the suit. He further contends that the Appeal Court had come to a finding that there was lease executed in favour of the defendant which had since been registered and therefore, the order of injunction has been rightly passed. He then contends that there are ingredients to show that the present case comes within the scope and ambit of clause 1 (a) of Rule 1 of Order XXXIX of the Code of Civil Procedure. On these grounds, he prays that the petition should be dismissed.
4. I have heard both the counsel at length.
5. A perusal of the plaint which is Annexure-1 to the writ petition shows that the plaintiff had not claimed grant of the lease in respect of the suit property which admittedly belongs to the Gaon Sabha. In the impugned order, it was found that the suit property belongs to Gaon Sabha. The defendant had been granted lease in respect of the fishery right in the suit property by virtue of an order passed by the District Magistrate and that the lease of fishery right in favour of the defendant had since been registered. In the plaint, the only prayer that has been made is in respect of an injunction on the basis of easement right in favour of the plaintiff against the defendant-opposite party. Gaon Sabha is not a party to the suit. The other prayer that was made in the plaint was that
the plaintiff should not be dispossessed from the suit property. In a suit where the easement right is claimed, the only protection that can be asked is in respect of easement right. The right of easement is a right to enjoy the property. In the present case as it appears from the order impugned that there is a lease in favour of the defendant. Thus, if there is an attempt to possess the property in that event, there would be surely a case of causing waste and damage to the fishery right of the defendant which comes within the scope and ambit of clause (a) of Order XXXIX, Rule 1. Thus it cannot be said that this case was outside the scope and ambit of clause (a) of Order XXXIX. Rule 1 of the Code. Thus, the decision in the case of Kirat Singh (supra) cannot come in aid for the plaintiff-petitioner. In view of the observation made therein, in the present case, the defendant can ask injunction under Order XXXIX, Rule 1 against the plaintiff since prima facie it appears right from the prayer for injunction restraining the defendant from interfering with the possession of the plaintiffs which itself means that there is every possibility of damages to the fishery right to the defendant which prima facie is apparent from the finding of the learned Lower Appellate Court where it has been found that a lease has been granted in his favour by the District Magistrate which has since been registered.
6. Section 4 defines easement as follows :
“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.”
Dominant and servient heritage and owners.–The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner, and land on which the liability is
imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation.–In the first and second clauses of this Section the, expression “land” includes also things permanently attached to the earth ; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity, and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”
7. Thus, easement is confined to a right of enjoyment over a servient heritage. This cannot mean to claim exclusive ownership or exercise a right of ownership. There is no ingredient made out in the plaint to show that the plaintiff had an easement in respect of catching or fishing from the disputed fishery. On the other hand, the allegation that lease was renewed through private negotiation shows that the fishery was being leased out by the Gaon Sabha. Therefore, there cannot be any easement in respect of catching fish from the fishery by the plaintiff. In as much as, fishery was leased out to someone else other than the plaintiff. Thus, the plaintiff cannot claim right preventing the lessee from exercising his right in respect of the leased out fishery. If the plaintiff has a right of taking water from the tank or the right of bathing, the same would be something different. But the plaintiff has not prayed for any injunction in respect of exercise of his easement right either for taking water from the tank or for bathing in the tank. A prayer that has been made clearly shows that it is his prayer by which he seeks to interfere with the lease-hold right of the defendant who had held the lease for a period of ten years before the same was renewed once again for another period of ten years. Thus, as against the lessee, nothing has been shown by which the plaintiff could claim easement to prevent the lessee from enjoying his
lease hold right even if the tank fishery is called to be a servient heritage.
8. Admittedly, the fishery is owned by the Gaon Sabha. Thus, the Gaon Sabha is the servient owner of the alleged servient heritage whereas the lessee defendant is an occupier who can also be called a servient owner but that is subject to the terms of his lease only in respect of the fishery. The right to fishery is not a right to the property. The right of fishery is a right to rear and catch fish. It is only a possessory right to the extent of rearing and catching fish without the exclusive right in respect of the tank. The right of lessee in respect of a tank fishery is a restricted right. The lessee can maintain his fishery right against all others. An easement have been claimed in respect of catching fish from the tank fishery, which appears to be a wholly baseless claim in the facts and circumstances of the case. The learned Courts below had held that the plaintiff has not been able to make out a prima facie case.
9. In view of the definition of the Easement in Section 4 of the Easements Act, the following materials are required to be present in order to claim an easement right, which are as follows–
(i) the right is in the owner or occupier of land as such ;
(ii) it is for the beneficial enjoyment of that land ;
(iii) it is to do or to continue to do something or to prevent or continue to prevent
something being done ;
(iv) that something is in or upon or In respect of certain other land ;
(v) the other land is not his own.
10. All these elements are to be satisfied in order to claim an easement in view of the definition in the Indian Law of Easements Act. 1882, which includes profit-a-prendre which is appurtenant to a dominant tenement. But such easement, is for the beneficial enjoyment of the
dominant heritage. Easement is also defined in Section 2(f) of the Indian Limitation Act. 1963. The definition is an inclusive one. It includes the easement defined in Section 4 as also profit-a-prendre in gross which are not easements under the Easements Act. However, the definition in Section 2(f) applies in all those areas to which the Easements Act has not been extended. In Halsbury’s Law of England, IVth Edition, Volume XIV at page 6, Paragraph 9. Halsbury states :
“A person possesses an easement in respect of some estate or interest in a particular piece of land, and the easement is said to be appurtenant to that land. No one can possess an easement irrespective of his enjoyment some estate or interest in a piece of land, for there is no such thing as an easement in gross- When validly annexed to land constituting the dominant tenement an easement remains inseparably attached to the tenement so long as the easement continues to exist, the easement cannot be served from the dominant tenement, nor can it be made a right in gross.
The benefit or advantage
conferred by the right must relate to the purpose for which the dominant tenement is used, although in that sense an easement will usually, if not always. Increase the value of dominant tenement.
A legal easement must ensure to the benefit of the dominant tenement as was held in the case of Fatik Lal Pal v. Sudhir Das. (1978) 2 Cat LJ 270. Literally the word “appurtenant” means “pertaining to” or “belonging to.” The word does not, however mean adjacent to and from this it could be easily inferred that proximity of the appurtenant land is not essential. What is essential is the concept of belonging for more beneficial enjoyment of the parent property. The land in question being Just in front of the plaintiffs house though across a narrow lane could still be land appurtenant to the plaintiffs house if it was shown that it was
being used for the more beneficial enjoyment of the plaintiffs house as was held in the case of Harnam Singh v. Bhikmbar Singh. AIR 1980 All 50.
An easement does not give the dominant owner the exclusive or unrestricted use of any part of servient tenement. The grant of exclusive and unrestricted use of a piece of land passes the property or ownership in the land and not merely an easement in it. A right which amounts in effect to the whole beneficial user of the servient tenement to the exclusion of the owner or to a joint user of the servient tenement, or which would prevent the servient owner from making ordinary use of his land cannot take effect as an easement either by virtue of grant of by prescription. Whether or not a right asserted amounts to a claim to the whole beneficial user of the servient tenement is a question of law to be determined in accordance with all the facts of a particular case, the problem is one of degree.
A right of easement subsists in order that the dominant owner may better enjoy the dominant heritage. The right must be in some way connected with the enjoyment of the dominant heritage. The characteristic that an easement must be for the beneficial enjoyment of the dominant heritage is also included in the expression “appurtenant to the dominant heritage”.
In Re. Ellemborough Park, (1956) Ch 131, it was held that what is required is that the right accommodates and serves the dominant tenement and is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all.
The benefit or advantage conferred by the right must relate to the purpose for which the dominant tenement is used. Where the
dominant tenement is used for business purposes a right which benefits the business may accommodate the dominant tenement and so be recognised as an easement.
11. In the case of State of Bihar v. Subodh Gopal, AIR 1968 SC 281 at page 289, the Apex Court had held that:
“A profit-a-prendre in gross that is a right exercisable by an Indeterminate body of persons to take something from the land of others, but not for the mere beneficial enjoyment of dominant tenement is not an easement within the meaning of the Easements Act. To the claim of such a right, the Easements Act has no application. Section 2 of the Easements Act expressly provides that nothing in the Act contained shall be deemed to affect, inter alia, to derogate from any customary or other right (not being a licence) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property. A claim in the nature of a profit-a-prendre operating in favour of an indeterminate class of person arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails. But to be a valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit-a-prendre in the exercise of which the residents of locality are entitled to excavate stones for trade purposes would ex facie be unreasonable, because the exercise of such a right ordinarily tends to complete destruction of the subject-matter of profit.
A profit-a-prendre if it is an unreasonable burden, a release from which could never be obtained from the owners of the right which would affect the subject-matter in a manner that would soon become exhausted. Such an easement cannot exist.
12. In the case of Lutchhmeeput Singh v. Sadaulla Nushyo, (1883) ILR 9 Cal 608, a Division Bench of the Calcutta High Court accepted the principle laid down in the case of Lord Rivers v. Adams, (1878) 3 Ex Div 361. In that case the plaintiff sought to restrain the defendant from fishing in certain jhils belonging to his Zamindars. The defendants pleaded, inter alia, that they had prescriptive right to fish in the Jhils, under a custom, according to which all the inhabitants of the zamindari had the right of fishing. It was held that no prescriptive right of fishery had been acquired under Section 2(f) of the Limitation Act and that the custom alleged could not, on the ground that it was unreasonable, be treated as valid.
13. The facts pleaded in the plaint does not satisfy the test as observed above with regard to the injunction sought for against the defendants.
14. Thus prima facie it appears that the plaintiffs have not been able to make out a case in their favour for grant of injunction restraining the defendant from interfering with the possession of the plaintiffs. The decision in the case of Abdul Gaffar (supra) also cannot come in aid in the present case since the grant of fishery right in favour of the defendant is not under challenge in this proceeding. Unless the grant of lease is under challenge, the question of validity thereof cannot be raised. Therefore, this decision also does not help the plaintiff.
15. In that view of the matter. I do not find any reason to interfere with the impugned order. The writ petition therefore, fails and is, accordingly, rejected. However, there will be no order as to costs.
16. However, none of the observation made by the lower
appellate court nor any of the observation made in this order shall be taken note of at the time when the matter will be decided on merit since all these finding are tentative for the purpose of deciding the application for injunction only. It is expected that the learned trial court shall expedite the hearing of the suit.
