S K. PHAUJDAR, J, J. The present second appeal was admitted on the follow ing substantial questions of law: (1) whether the right of easement can be claimed on a public path way; (2) whether the right of path way can exist on a land which has been declared to be a bhumidhari land of the appellant; and (3) whether the right of easement can be claimed on a bhumidhari land. 2. A suit was filed before the Munsif, Bijnor, by the present respondent which was registered as Original Suit No. 237 of 1972. The present appellants were the defendants therein. The suit related to a path- way lying towards the west of the haveli belonging to the plaintiff. The pathy-way stretched from north to south and was a public way. The plaintiff and his predecessor have been in use of that path-way for 100 years and the pathy-way was capable of use by foot and by bullock-cart. The plaintiff claimed to have acquired in easementary right thereon. There was no other way for such user by the plaintiff for egress and ingress from and to his Haveli and Ahata. It was alleged that the defendants intended to block the path by raising some constructions although they had no right thereon. The defendants had also started keeping their manure pits in the path-ways to the hindrance of the plaintiff in its user. The plaintiff prayed for a per manent injunction against the defendants so that no disturbance or hindrance to the use of the path-way be created by them. 3. The defendants contested the suit on the ground that the plaintiffs family owned a residential building in the southern por tion of the abadi in question. In the plaint, the southern boundary of the Haveli of the plaintiff was indicated as Ahata of Phool Singh. The Ahata of the plaintiff and Ahata of Phool Singh was one and the same. Mohan Singh was the grand- ancestor of the plaintiffs family. His sons had a grove on plot No. 1384 prior to 1934. Mokha, a son of this Mohan Singh, had raised in Ahata in the south-western portion of the abovesaid grove in 1935 and had opened a 10 ft. wide door in the western wall of the Ahata. Mohan Singh was the grand- ancestor of the plaintiffs family. His sons had a grove on plot No. 1384 prior to 1934. Mokha, a son of this Mohan Singh, had raised in Ahata in the south-western portion of the abovesaid grove in 1935 and had opened a 10 ft. wide door in the western wall of the Ahata. In 1937, the predecessors-in-interest of the defendants had filed a suit against Mokha which ended in a compromise and Mokha and others were permitted to keep the aforesaid door opened for their egress and ingress from and to their Ahata and in lieu of this concession, they made some payment to the two ancestors-in-interest of the defendants. That door was still in existence, according to the defendants. To the west of the door there was still a 10 ft. wide land to be used as an approach road for reaching the public path-way in plot No. 1201, now num bered as plot No. 1032 in consolidation proceedings. This 10 ft. wide land was in the use of Mokha and his successors as their path. In 1972, one Bhim Singh, a grand-uncle of the plaintiff became the Pradhan of the village. Taking advantage of the tem porary absence of the defendants from the village, the plaintiff and other members of his family, with the connivance of the Prad han, Bhim Singh, demolished a portion of the western wall of their Ahata in its north ern portion and further demolished a cattle trough of the defendants which was in exist ence since long. These persons further raised a wall towards the east of their Kotha and the plaintiff and others started asserting a right to use the northern portion of their western wall of the ahata so demolished as a door. The defendants asserted that the plaintiff and others had no right to use any door other than the one which was in exist ence from before and which, in terms of the compromise in the suit of 1937, they were permitted to use. The plaintiff and others had also opened sky light in the western wall of their kotha and had opened two parnalas on their kotha towards their west which was originally lying towards north. The plaintiff and others had also opened sky light in the western wall of their kotha and had opened two parnalas on their kotha towards their west which was originally lying towards north. The defen dants submitted that the land lying towards the west of the ahata cf the plaintiff was plot No. 1200/2, now designated as plot No. 944 in the consolidation proceedings, and this land was always owned and possessed by the defendants and their ancestors. They had become bhumidhars for this land prior to the consolidation operations. They have been payingland revenue to the State as bhumidhar. The defendants had been using this land for crushing sugarcane. They have their manure pits etc. on the same and have been using the land for keeping fuel, puwal, tractor and the likes. They are also keeping their cattle on this land. The defendants further claimed that the land in dispute was the land appurtenant to the house of the defendants prior to the coming into force of the U. P. Z. A. & L. R. Act and by operation of law the land vested in the defendants. In the consolidation proceeding it was found to be a bhumidhari land belonging to defendant No. 3 and Smt. Shanti Devi. The consolida tion proceedings have ended and have be come final and the defendants became owners of the land in dispute. It was asserted that the land in suit was never a public path way. The public path had all along been towards the west of the defendants con structions on plot No. 1032. The plaintiff had no easementary right upon the land in dispute. Plot No. 1383 was also owned and possessed by the defendants and their ances tors. 4. The suit was dismissed by the court of first instance on a finding that the suit plot was not a pathway as claimed by the plaintiff and the plaintiff had no right of user of the same as a path-way. The trial court further found that the suit plot belonged to the defendant and was in their possession and was appurtenant to their house and the suit was accordingly not maintainable. The trial court was of the view that the plaintiff never got the suit land surveyed to fix its identity. Accordingly, the trial court accepted the consolidation entries. 5. The trial court further found that the suit plot belonged to the defendant and was in their possession and was appurtenant to their house and the suit was accordingly not maintainable. The trial court was of the view that the plaintiff never got the suit land surveyed to fix its identity. Accordingly, the trial court accepted the consolidation entries. 5. The aggrieved plaintiff filed the first appeal which was registered as Civil Appeal No. 382 of 1976 and the same was heard and decided by the 1st Addl. District Judge, Bijnor on 12-1-1977. The first appellate court allowed the appeal, set aside the judgment and decree and decreed the suit restraining the defendants from raising any construc tion on the land in dispute and from causing any obstruction on the public path accept ing the plaintiffs right of way thereon. The defendants were also directed to remove the manure pits and other encroachment on the public path. 6. The plaintiff described the Haveli of the plaintiff by its boundary only as follows: East - plot of Rampal West-Rasta South - Ahata of Phool Singh North - Land of Ram Pal The disputed rasta was described again by its boundary: East-Abadi West-Abadi North - Rasta, which took a turn and proceeded to east South - Rasta which took a turn towards abadi. 7. The substantial questions of law may now be taken up. It was argued on behalf of the appellants that a right of easement has been claimed on a public pathway and there being no dominant heritage as against the public pathway the right of easement of any person on its may not be claimed or declared. The provisions of Indian Ease ments Act, 1882, were referred to. Section 4 of this Act defines what is an easement. Under this section an easement is a right which the owner or the occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do or continue to do something or to prevent or continue to prevent something being done, in or upon, or in respect of, certain other land not his own. The land for the beneficial enjoyment of which the right exists is called the dominant heritage and occupier thereof, the dominant owner; the land on which the liability is imposed is called servant heritage and the owner or occupier thereof, the servant owner. The land for the beneficial enjoyment of which the right exists is called the dominant heritage and occupier thereof, the dominant owner; the land on which the liability is imposed is called servant heritage and the owner or occupier thereof, the servant owner. Right to use a public highway by any person does not depend on the ownership of the property and in this sense it may not be covered within the definition of Section 4 of the Easement Act. There is no servant owner of the public pathway and, moreover, the public pathway may not be described as "certain other land not his own" in respect of the dominant owner who claims the right of easement. This view was taken by the Supreme Court in the case reported in AIR 1954 SC 728 . However, the Allahabad High Court was of the view as reported in the case 1980 ALJ 88 that even though there is no easementary right in respect of passage over a public highway a member of public has uninter rupted right of passage over the highway and obstruction to that right is actionable. In the view of the Calcutta High Court as expressed in AIR 1964 Calcutta 548, the rights of the residents on either side of the village road to carry carts on that road, is not the easementary right. There is no difficulty, therefore, in answering the first question that in terms of the definition of "easement", a right of easement cannot be claimed on a public pathway. This may not, however, set at rest the real dispute between the parties as from the trend of pleadings and on the basis of the findings, this court must look to the dispute if it was really for a public path way or for an approach thereof. 8. The next question as framed by this court at the time of admission of the appeal is whether the right of pathway can exist on a land which has been declared to be a bhumidhari land and the third question is really a corollary to the first two and reads as follows: "whether a right of easement can be claimed on a bhumidhari land. " In answering the first question it has been indicated that the dispute between the par ties is really not over the public pathway but over a private land on which a passage is claimed*for approach to and from the public pathway. The present two questions No. 2 and 3 are really two facets of a single ques tion. 9. From the pleadings and the findings of the courts below we arrive at certain un disputed facts. The written statement indi cates that in 1937 there was a suit between the predecessors of the parties which ended in a compromise and the predecessors of the plaintiffs were allowed to open a door on the south-west side of their boundary wall and to use a 10 ft. wide passage for going to the public pathway which was in Khasra No. 1200/1 (present consolidation plot No. 1032 ). It was alleged that this passage had all along been used since then. It was further stated that in June, 1972, the plaintiff had opened another door on the north-western wall of his house and claimed passage through the land of the defendants at that site also for approaching the public path way. It was contended by the appellant that the easementary right accepted on com promise in 1937 was for a passage leading from the south- western door from the an cestral property of the plaintiff to the public pathway, and was still in existence and simp ly because the plaintiff got the northern portion of the property on partition, he can not again claim a second passage under the plea of an easementary right. After the filing of the written statement with the above averment, a replication was filed by the plaintiffs. The story of partition, as alleged, of the dominant heritage was accepted. It was, however, stated that the partition was made 30 years ago from 1972 and the present disputed passage has been used for ingress and egress since then. It was asserted in the replication that in 1941 the predecessor-in-interest of the defendant had filed a suit against the plaintiffs father for a decla ration that plot No. 1200 was in her posses sion. The suit was dismissed and it was held that entire plot No. 1200 was a public path. It was asserted in the replication that in 1941 the predecessor-in-interest of the defendant had filed a suit against the plaintiffs father for a decla ration that plot No. 1200 was in her posses sion. The suit was dismissed and it was held that entire plot No. 1200 was a public path. A further suit followed in 1944 for the same path by the defendants predecessors which was also dismissed and again it was held that a plot No. 1200 was a public path. In the replication the plaintiffs further asserted that the suit land had never been appur tenant to the house of the defendants. The defendants made the manure pits thereon only a few days prior to die filing of the suit. They also made constructions on the public path only to obstruct the right of user by the plaintiff. 10. Learned counsel for the appellant took me through the relevant provisions of the Easement Act in this respect. Section 30 of the Easement Act deals with partition of dominant heritage and states that: "where a dominant heritage is divided bet ween two or more persons, the easement becomes annexed to each on the shares, but not so as to increase substantially the burden on the servant heritage: Provided that such annexation is consistent with the terms of the instrument, decree or revenue proceedings (if any) under which the division was made, and, in the case of prescriptive rights, with the user through prescriptive period. " An illustration under this Section made the position more clear. A house to which a right of way by a particular path is divided into two parts, one of which is granted to A and the other to B, each is entitled, in respect of his pail to a right of way by the same path. On the basis of this provision, the learned counsel for the appellant sub mitted that the right of way already con ceded in 1937 was for the undivided dominant heritage and only this right of way may be claimed by all the co-owners of the dominant heritage and each may not, on partition, lay a separate claim on the servant heritage, which is conceded would in crease the burden on the servant heritage. 11. 11. The learned trial court, as indicated earlier, had dismissed the suit of the plaintiff on a finding, amongst other, that the suit property was not a pathway as claimed by the plaintiffs and the plaintiffs had no right to use it as a path-way. The trial court also found that the disputed land belonged to the defendants and was in their possession. The plaint did not describe either the Haveli or the public way by its plot number. But in the replication, the whole of plot No. 1200 was claimed as a Raasta. The records indicate two separate plots, namely, 1200/1 and 1200/2, the first having been recorded as a Raasta and the second as a land belonging to the predecessors of the defendants. The learned first appellate court framed three questions for determination in the appeal and in the first two he had discussed the questions if the. plaintiff had a right to use the land in dispute as a public path and if the defendants had been the owners of the land in dispute. Neither the court of first instance nor the first appellate court indicated as to what was the land in dispute but it appeared from the pleadings of the parties that the real dispute was not for the recorded public pathway but for plot No. 1200/2. The learned first appellate court relied upon the judgments in the earlier suits between the parties for plot No. 1200 (whole) which was held to be a public path. He also discussed the oral evidence and the report of the Com missioner to infer that the door on the north portion of the western wall of the plaintiff was in existence from prior to 1970 and it was not opened in 1972, as alleged by the defendant. The first appellate court failed to consider the effect or the record of plot No. 1200/2 as a bhumidhari land No 944 in the name of the defendants. He met this entry by a finding that although the defendants had acquired bhumidhari right in the land in dispute, the plaintiffs had prescribed an easementary right on the same as a path way as this right was in use continuously and so the bhumidhari right must be held sub ject to the easementary right of the plain tiff. 12. He met this entry by a finding that although the defendants had acquired bhumidhari right in the land in dispute, the plaintiffs had prescribed an easementary right on the same as a path way as this right was in use continuously and so the bhumidhari right must be held sub ject to the easementary right of the plain tiff. 12. On this point the learned counsel for the appellant drew my attention to the provisions of the U. P. Z. A. & L. R. Act. Sec tion 142 of the this Act gives to the bhumidhar a fight to exclusive possession of the land of which he is recorded as a bhumidhar. It was contended that the finding of the first appellate court was based solely on the ear lier judgments without properly appreciating the legal position after coming into force of UPZA & LR Act and the learned first appellate court should have held that on the basis of the bhumidhari record the defen dants were entitled to claim exclusive pos session on plot No. 1200/2. A further objec tion was taken by the appellants saying that when, after consolidation operations, the land in dispute was carved out into a new plot No. 944 and recorded in the name of the defendants, the civil court had no jurisdic tion to make any declaration against such entries. 13. Section 49 of the U. P. Consolida tion of Holdings Act (in short, UPCH Act) states that notwithstanding anything con tained in any other !av;, the declaration and adjudication of the rights of tenure-holders in respect of land lying in an area for which the notification has been issued under sub section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act shall be done in accord ance with the provisions of this Act and no civil or revenue court shall entertain any suit or the proceedings with respect to such right or rights in such land or in respect of any other matter for which a proceeding could or ought to have been taken under this Act. 14. The right of easement differs from a right of possession. 14. The right of easement differs from a right of possession. It is always claimed on the land of another and does not affect the exclusive possession of the servient owner on the servient heritage. Thus, Section 142 of the U. P. Z. A & L. R. Act has no conflict with the claim of right of easement if estab lished by facts. The bar of civil suit under Section 49 of the UPCH Act is there for a land for which a notification under Section 4 (2) of the said Act has been issued and the right claimed is one which could be decided in a proceeding under the UPCH Act. The plaintiffs claim that plot No 1200/2 is a public path, is dependent on a declaration that the entries made in the consolidation proceedings lor that plot were wrong. This portion of the claim of the plaintiffs must, therefore, be deemed barred under Section 49 of the UPCH Act as the consolidation proceeding has finally settled the dispute regarding the nature and possession of the land. Section 49 of the UPCH Act provides for a revision by the Director of Consolidation who could examine the records of any case for satisfying himself as to the correct ness, legality or propriety of any order passed by such authority. The entry of plot No. 1200/2 as a land belonging to the defen dant could have been challenged by way of a revision before the Director of Consolida tion which would have been a proceeding in accordance with the provisions of UPCH Act. The civil suit for a declaration that plot No. 1200/2 was in fact a public path would not, therefore, lie. We may, therefore, answer the questions 2 and 3 as framed at the outset in the following manner: A public pathway cannot be claimed in a civil suit upon a land which has been held to be a bhumidhari land as Section 49 stands as a bar to such suit, but a right of easement, if it was existing under the law, may be claimed on a bhumidhari land irrespective of the provisions of Section 142 UPZA & LR Act giving exclusive right of posses sion to the bhumidhar. 15. With these two findings, we go back to the provisions of Section 30 of the Ease ments Act. 15. With these two findings, we go back to the provisions of Section 30 of the Ease ments Act. The compromise recorded in the year 1937 between the predecessors of the parties indicate that the predecessors of the present plaintiffs had paid certain sum to the predecessors of the present defendants whereupon they were allowed to open a door to have an approach to the public path. This suggests that in the intervening land between the public path and the door of the plaintiffs, there must have been some land belonging and in possession of the defen dants for which the plaintiffs had to pay a certain consideration for getting the right of user. It is undisputed that for the easement so created by the compromise, the dominant heritage belonged to the plaintiffs pfedecessors and the servant heritage belonged to the defendants predecessors. It is not disputed that the dominant heritage was partitioned. The defendants claimed that subsequent to this partition, the plain tiff, who got the northern portion of the dominant heritage cannot have a new right of way at a new site upon the land of the defendants and Section 30 and the illustra tion thereof supports this contention of the defendants. Learned first appellate court relied upon the replication of the plaintiffs wherein a claim of exercise of the right of way was claimed for 30 years. This claim was not made in the plaint itself, wherein the plaintiffs built up a case on the assertion that they were claiming a right on a public pathway and not on the land of the defen dant. The learned appellate court had ac cepted the right of the defendants on the land in question but built up a third case to give relief to the plaintiffs. The plaintiffs claim of right of user for long 30 years was not made in the plaint nor was there any proof and the learned first appellate court accepted the plea of the plaintiffs simply on the ground that as the right was exercised prior to 1972, it must have been in use for the prescriptive period. 16. The plaintiffs claim of right of user for long 30 years was not made in the plaint nor was there any proof and the learned first appellate court accepted the plea of the plaintiffs simply on the ground that as the right was exercised prior to 1972, it must have been in use for the prescriptive period. 16. Upon the answers to the substan tial questions of law as framed in the appeal and upon the interpretation of Section 30 of the Easements Act as made in the foregoing paragraph, it may be concluded that al though an easement could not have been claimed for a public pathway and although the question whether a right of pathway was there on a land which has been recorded as a bhumidhari land in a ceiling proceeding was out of the ambit of the civil court to decide, a right of easement could have been claimed even on a bhumidhari land. But in the present case, the right of easement has been claimed in violation of the provisions of Section 30 of the Easements Act. The plain tiffs could not have claimed a second pas sage through the land of the defendants to the public pathway merely on the ground of partition of the dominant heritage as another right of way had already been con ceded to the plaintiffs predecessors upon the land of the defendant for the self-same dominant heritage and this right of use had been in use since 1937 till the date of the suit. The plaintiffs claim, therefore, cannot be decreed. 17. The appeal is accordingly allowed. The judgment and decree of the first appel late court is set aside. The judgment and decree of the court of first instance is res tored and the order dismissing the suit with costs, as recorded by the Munsiff, is con firmed. The parties will, however, bear their own costs of this appeal. Appeal allowed. .