HIGH COURT OF MADHYA PRADESH (AT: INDORE)
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(1.) IN this reference the question to be answered by us is this: Whether in the event of the owner of a bhumiswami agricultural holding claiming a right of easement on a contiguous holding which is also held in bhumiswami rights, the easement materializes on peaceful, uniterrupted and continuous usage for 20 years as provided in the main body of Section 15 of the Indian Easements Act, or whether on the ground that the land "belongs" to government, it should be for a period of 60 years under the old Limitation Act and 30 years under the present one, as provided in the last clause of the same section?
(2.) THERE are two other questions which arise in the same second appeal; first, one of fact, whether actually the claimant to the easement has proved such usage for a period of over 30 years; the second, one of law, whether, in view of the amendment of the Indian Limitation Act, even on the theory that this land "belongs" to the government, the period would be only 30 and not 60 years. This would depend upon the applicability or otherwise of the "savings" in Section 31 (b ). We do not feel called upon to say anything about these two questions which are entirely within the competence of the Single Bench to which the case shall be returned with an answer to the first question already set out.
(3.) THE facts necessary for our purposes are simple and are practically common grounds except for the duration mentioned in connection with the question of fact. The parties to the suit hold contiguous holdings namely, plot No. 101 in the village nogawa, Tahsil Depalpur of area 0. 40 acres owned by the plaintiff. Adjacent to it are two fields Nos. 104 and 105, the first belonging to defendants 1 to 3 and the second to defendant No. 4. By "belonging to" or "owned by" with reference to these three plots is meant that all these persons have a bhumiswami right on the respective plots owned by them. The plaintiff's case is that he has got a right of easement for passage over the plots 104 and 105 to his own plot 101. He has claimed to have exercised it for a long time and wants this right to be declared. In addition he wants the defendants to be restrained by a permanent injunction from interfering with his (plaintiff's) exercise of the right of easement over the respective plot numbers. The lower appellate Court has found as a fact that the plaintiff had been exercising his right of passage over the fields of the defendants peacefully and without interruption for a continuous period between 30 and 35 years. The trial Court itself has dismissed the suit giving reasons which are slightly different from those given by the lower appellate Court; but it is sufficient for our purpose to concentrate our attention on the appellate decision. Holding that the last clause of Section 15 of the Indian Easements Act was applicable to this case and that the Indian Limitation Act as it stood at the time of the filing of the suit was applicable, the lower Court held that in the absence of 60 years' continuous and uninterrupted use the easement could not be declared. In this it was guided by the ruling of another Single Bench of this High Court reported in Rawaji v. Keshav, 1962 Jab LJ 1039 = (AIR 1963 Madh Pra. 202 ).;
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