How to prove customary easement?

Taking up the first question framed above for consideration it relates to the customary easement. Section 18 of the Indian Easements Act reads thus.

18. Customary easements. -An easement may be acquired in virtue of a local custom. Such easements are called customary easements.?

10. In Halsbury's Laws of England, Third Edition, Vol. II under Article 294 the word custom has been defined thus:

A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality.?
In the case of Lakshmidhar Misra v. Rangalal, reported in MANU/PR/0054/1949 : AIR 1950 PC 56, the Privy Council observed in page No. 59 of the report thus:

A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. Fitch v. Rawling (1795) 2 H BI 393 : 3 RR 425. The custom, if established makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property.?

11. It is, thus, clear that the Appellants/Plaintiffs were required to plead and prove the local custom of the nature stated above.

12. I have perused the plaint. I find that the Appellants/Plaintiffs did not aver that there was any local custom. All what was claimed was that the suit way was the customary way which the Plaintiffs were using for the last 50 years. However, the plaint is completely silent as to the existence of any local custom as required for proving customary easement. Apart from that both the Courts have concurrently recorded a finding that the suit way was not proved to have been used beyond 30-35 years. I, thus, come to a conclusion that the Appellants/Plaintiffs failed to prove existence of customary easement within the meaning of Section 18 of the Act and hence, question No. 1 is answered in the negative.

Equivalent Citation: 2011(5)ALLMR62, 2011(6)BomCR66, 2011(5)MhLj345

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55/1995

Decided On: 30.06.2011

Appellants: Manikrao S/o Narayanrao Bhoge and Ors.
Vs.
Respondent: Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale

Hon'ble Judges/Coram:
A.B. Chaudhari, J.

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