JUDGMENT : Ajay Mohan Goel, J. : By way of present appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Bilaspur in Civil Appeal No. 108 of 2003 dated 19.09.2005, vide which the learned appellate Court has upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class, Bilaspur in Civil Suit No. 76/1 of 2001 dated 26.09.2003 with the prayer that the judgments and decrees so passed by both the learned Courts below be set aside and the suit of the plaintiff/appellant be decreed as prayed for. 2. This appeal was admitted on 06.12.2007 on the following substantial question of law: “Whether the alleged customs of use of maind i.e. boundary land of the respective plots of the parties having not been specifically pleaded nor proved on record therefore the respondent has no right to interfere with the ownership and possession of the appellant.” 3. Brief facts necessary for the adjudication of the present case are that the appellant/plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit for permanent prohibitory injunction in the Court of learned Sub Judge 1st Class, Bilaspur on the grounds that he was a resident of Village Panjgain, Pr. and Tehsil Sadar, District Bilaspur, H.P. and was owner in possession of suit land comprised in Khata/Khatauni No. 198 min/982 min, Khasra No.1182, measuring 0- 9 bighas, situated in Village Panjgain. Defendants were also residents of Village Panjgain and had no right, title and interest over the suit land and they were forceful and sourceful persons and were forcibly trying to create a new path through the suit land. The plaintiff requested the defendants not to interfere in the suit land in any manner, but the said requests of the plaintiff were turned down, hence the suit. 4. According to the plaintiff, the cause of action arose on 20.08.2001 when the defendants forcibly tried to create new path through the suit land. Accordingly, he prayed that a decree for permanent injunction be passed restraining the defendants not to interfere and create new path through the suit land in any manner themselves or through their agents etc. In the alternative, it was prayed that in case the defendants succeed in dispossessing the plaintiff during the pendency of the suit, then the same be ordered to be restored to the plaintiff. 5. In the alternative, it was prayed that in case the defendants succeed in dispossessing the plaintiff during the pendency of the suit, then the same be ordered to be restored to the plaintiff. 5. The suit was contested by the defendant No. 1 by way of filing of written statement. In preliminary objections, it was stated that the defendants have been using the maind (beer) of the lands in order to reach the house and cowshed from the road which is a custom prevailing in the area since time immemorial. In the alternative, the defendant No. 1 also pleaded that there is easement of necessity to the defendants to use the path as there is no alternative path on the spot. On merits, the case put forth by defendant No. 1 was that the said defendant do not object the ownership and possession of the plaintiff on the suit land except the use of maind to reach the house from the main road. Defendant No. 1 further submitted that he has no concern with the suit land except the use of maind which was the boundary of land of the parties. It was further contended on behalf of defendant No. 1 that he was not creating any new path over the suit land as alleged. 6. On the basis of pleadings on record, learned trial Court framed the following issues on 11.07.2002: “1. Whether the plaintiff is entitled for the permanent prohibitory injunction as prayed for? OPP 2. Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP 3. Whether the suit was not maintainable as alleged? OPD 4. Whether the plaintiff has not come with clean hand as alleged? OPP 5. Whether the defendant has a right by customs to use main (Beer) on the suit land as alleged? OPD 6. Whether the defendant has easement of necessity as alleged? OPD 7. Relief.” 7. These issues were answered by the learned trial Court as under: “Issue No. 1: No. Issue No. 2: No. Issue No. 3: No. Issue No. 4: No. Issue No. 5: Yes. Issue No. 6: No. Relief: The suit of the plaintiff is hereby dismissed as per operative part of the judgment. 8. Thus, the learned trial Court held that admittedly the plaintiff and defendants had lands adjacent to each other and have a common edge, i.e. maind in between. Issue No. 6: No. Relief: The suit of the plaintiff is hereby dismissed as per operative part of the judgment. 8. Thus, the learned trial Court held that admittedly the plaintiff and defendants had lands adjacent to each other and have a common edge, i.e. maind in between. It further held that it stood admitted in his evidence by the plaintiff that in plain areas the maind in between the lands of two persons is used by them jointly and grass is also cut jointly. It further held that therefore the defendants have also same right on the edge as plaintiff and hence, the plaintiff and defendants have equal rights over the edge/maind in question in the case. The learned trial Court also held that if the plaintiff has right to use the maind, the defendants have equal right to use the maind in question and the use of the maind by the defendants does not prove any interference by the defendants. Learned trial Court also held that it has further come in evidence that it was the custom in the area to use the maind/edge in between two fields of the persons for ingress and egress by the parties having adjoining lands. This fact was corroborated by the witnesses of the plaintiff and oral evidence of defendants. Learned trial Court also held that in view of the fact that it had come in evidence of plaintiff that Shimla-Beri road abuts the land of the defendants, he could not claim any easement. Thus, the learned trial Court dismissed the suit of the plaintiff and held that the plaintiff was not entitled for permanent prohibitory injunction. 9. Feeling aggrieved, the plaintiff filed the appeal before the Court of learned District Judge, Bilaspur, H.P. 10. The learned Appellate Court vide its judgment dated 19.09.2005 upheld the judgment passed by the learned trial Court and dismissed the appeal by holding that the plaintiff had failed to prove that defendant was interfering with his possession over the suit land and was bent upon to open a new path over the suit land. The learned appellate Court also held that the use of maind by the defendants does not prove any interference by the defendants, more so, there was a custom prevailing in the area that maind was being used as a path for coming and going by the parties to their own lands. The learned appellate Court also held that the use of maind by the defendants does not prove any interference by the defendants, more so, there was a custom prevailing in the area that maind was being used as a path for coming and going by the parties to their own lands. It also held that the plaintiff has miserably failed to prove any kind of interference except use of maind for which the defendants had the right to use as per the admission of the plaintiff as a witness. 11. It is against the findings so returned by the learned Courts below that the present appeal has been filed by the appellant/plaintiff. 12. Mr. G.D. Verma, learned Senior Counsel appearing for the appellant has strenuously argued that the judgments and decrees passed by both the Courts below were not sustainable in the eyes of law and were liable to be set aside because both the Courts below have failed to appreciate that the defendants had neither pleaded nor proved customary right of use of maind in the area as is required in law. According to Mr. Verma, a feeble reference in the written statement by defendant No. 1 therein to the effect that the defendants were using the maind (beer) of the land in order to reach the house and cowshed from the road, which is a custom prevailing in the area since times immemorial, does not amount to pleading of custom as is required in law. Mr. Verma further argued that the defendant in fact had become owner of the said land only in the year 1972, therefore, it is not understood as to how he could say that he was using the maind to have access to his house from time immemorial. Mr. Verma further argued that it was clear from the evidence on record that there was an alternative road leading both to the shop as well as to the house of defendant No. 1. Mr. Verma further argued that it was clear from the evidence on record that there was an alternative road leading both to the shop as well as to the house of defendant No. 1. According to him, this very important aspect of the matter had been ignored by both the learned Courts below which had erred in not appreciating that when defendant No. 1 himself admitted that there was a road leading to his shop and house, then the very contention being put forth by the defendant No. 1 that there was no access to his house and land except the use of the maind was a totally wrong stand taken by him. On the basis of this, Mr. Verma strenuously argued that the findings returned by both the Courts below were liable to set aside and the suit filed by the plaintiff be decreed as prayed for. In order to substantiate his arguments, Mr. Verma has relied upon the following judgments: 1. AIR 1995 HP 1982 2. AIR 2004 Rajasthan 196 3. AIR 2011 SC 545 13. Mr. K.D. Sood, learned Senior Counsel appearing for respondent No. 1 has argued that there is no merit in the contentions which have been raised by learned Senior Counsel for the appellant. According to Mr. Sood, custom was not only pleaded by defendant No. 1 in the written statement as is required in law, but it was also proved by defendant No. 1. Mr. Sood further argued that both the Courts below have come to the conclusion and rightly so that the defendants were not causing any interference in the ownership and possession of the plaintiff over the suit land and that the usage of the maind could not be termed to be an interference. According to Mr. Sood, there being concurrent findings in favour of the defendants in this regard, the same did not warrant any interference in the second appeal. He further submitted that the maind was being used to have access to the land of the defendants which was at the back of the house to which there was no other approach except the maind. Accordingly, he argued that as there was no merit in the present appeal and the same should be dismissed with cost. Mr. K.D. Sood, in support of his case, has relied upon the following judgments: “1. 1991(2) Sim. L.C. 94 2. Accordingly, he argued that as there was no merit in the present appeal and the same should be dismissed with cost. Mr. K.D. Sood, in support of his case, has relied upon the following judgments: “1. 1991(2) Sim. L.C. 94 2. AIR 1976 Allahabad 415 3. 2014(2) Him. L.R. 1043 14. I have heard the learned counsel for the parties and also gone through the records of the case. 15. Mulla in his Principles of Hindu Law observed as follows: “A custom derives its force from the fact that it has, from long usage, obtained the force of law. Mulla further observed: All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.” 16. Section 13 of the Indian Evidence Act, 1872 envisages as under: “13. Facts relevant when right or custom is in question.-Where the question is as to the existence of any right or custom, the following facts are relevant:- (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence; (b) particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or departed from.” 17. Out of the 7 issues which were framed by the learned trial Court, issue No. 5 was: “Whether the defendant has a right by custom to use Maind (Beer) on the suit land as alleged? OPD This issue has been answered in favour of the defendants by the learned trial Court. 18. A perusal of the statement of PW-1 Sita Ram, i.e. the plaintiff demonstrates that he has admitted the custom of use of maind (beer) for the purpose of going from one field to the other in the village. His deposition is quoted hereinbelow: “Thik hai ki gaon mai ek khait se dusere khait ko jana ho to beer par se jate hai thetha rasta aadi kaagjat mai darz na hote hai” 19. PW-2 Bohra Ram has also admitted it to be correct that Nand Lal and Sita Ram etc. use the maind (beer) for the purpose of going to their lands. 20. PW-2 Bohra Ram has also admitted it to be correct that Nand Lal and Sita Ram etc. use the maind (beer) for the purpose of going to their lands. 20. Hariman, Field Kanungo Sadar, District Bilaspur has entered into the witness box as DW-1. He has proved on record Tatima Ex. DW-1/A. He has also deposed that when he investigated the matter, he found that defendants have not encroached upon any land of the plaintiff. He further deposed that red line reflected in the Tatima is the maind between the two numbers. In his cross-examination by the plaintiff, he has clearly stated that in between the boundaries of the plaintiff and the defendants, there is a maind which is used by the defendants. 21. Similarly, defendant Nand Lal has entered into the witness box a DW-2 and he has stated that he uses the maind between his land and the land of the plaintiff for excessing his cowshed and field. He has also stated that in their village, all the villagers use the maind between their lands to access their fields and this custom is prevailing from centauries. He has also deposed that the grass on the ‘Beer’ is cut proportionately (aadha aadha) by him and the plaintiff. He has also deposed that he has not caused any interference in the land of the plaintiff. He has also deposed that the Tatima which has been produced on record clearly reflects the said ‘Beer’. He has clarified in his cross-examination that ‘Beer’ is used to access his land which is behind his house. He has stated that first there is a road, then there is his shop, behind his shop is the house and behind house is vacant land which is accessed through the ‘Beer’. 22. Incidentally, there is no cross-examination of the defendant to the effect that save and except using the maind (beer), the defendant is also interfering in other portion of the suit land. There is no suggestion to the defendant that he has no right to use the maind (beer) as a matter of custom. Similarly, there is no suggestion to the defendant that there does not exist any custom to the effect as alleged by the defendant. 23. In his written statement, the defendant has mentioned in preliminary objections as under: “3. There is no suggestion to the defendant that he has no right to use the maind (beer) as a matter of custom. Similarly, there is no suggestion to the defendant that there does not exist any custom to the effect as alleged by the defendant. 23. In his written statement, the defendant has mentioned in preliminary objections as under: “3. That the defendant has been using the Maind (Beer) of the lands in order to reach the house and cowshed from the road which is a custom prevailing in the area since time immemorial.” He has further mentioned in paragraph No. 2 of his written statement as under: “2. In reply to para No. 2, it is submitted that the defendant No. 1 has no concern with the suit land except the use of the Maind which is the boundary of land of the parties.” 24. What this Court has to examine is whether custom has been sufficiently pleaded and proved by the defendants or not. In fact, this is the substantial question of law which has to be decided by this Court because if this Court comes to the conclusion that defendant No. 1 has both pleaded and proved custom, as is required in law, then there is no occasion for entering into any other issue because both the Courts have concurrently held against the plaintiff and in favour of the defendants that the plaintiff is not entitled for the relief of permanent prohibitory injunction and that the defendant has a right by custom to use the ‘Maind’ (Beer). 25. This Court in Amar Singh and others Vs. Kehar Singh and others, AIR 1995 Himachal Pradesh 82 has held that the prerequisites of a valid custom are to be concluded by the Courts on the basis of the evidence adduced by the parties and not only with reference to the allegations and counter allegations made by them. This Court has also held that it is well established that when plaintiff bases his case on custom, he must actually plead custom in his plaint and prove it by leading cogent evidence. 26. The High Court of Rajasthan in Virendra Singh others Vs. This Court has also held that it is well established that when plaintiff bases his case on custom, he must actually plead custom in his plaint and prove it by leading cogent evidence. 26. The High Court of Rajasthan in Virendra Singh others Vs. Kashiram, AIR 2004 Rajasthan 196 has held on the facts and circumstances of that case in paragraphs No. 20 as under: “Learned counsel for the defendants contended that he was taken in adoption according to the custom applicable to the parties but this argument is devoid of merit as there is no pleading and evidence with regard to any custom or usage applicable to the parties permitting persons to be adopted above the age of 15 years. Hence, the defendant No. 1 was not capable of being taken in adoption by the plaintiff.” 27. The Hon’ble Supreme Court in Atluri Brahmanandam Vs. Anne Sai Bapuji, AIR 2011 Supreme Court 545 has held in paragraphs No. 12 and 13 as under: “12. We are concerned for the purpose of this case with clause (iv) of Section 10 which provides that a person to be adopted should not have completed the age of 15 years. But there is also an exception provided therein to the aforesaid required qualification which provides that if there is a custom or usage applicable to the parties permitting persons who have completed the age of 15 years being taken in adoption, such a person could also be validly adopted. On the other hand, the effect and the implication of Section 16 of the Act is that if there is any document purporting to record an adoption made and is signed by the person giving as well the person taking the child in adoption is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made incompliance of the provisions of the Act unless and until it is disproved. 13. There is no denial of the fact in the present case that the respondent was more than 15 years of age at the time of his adoption. But the respondent has relied upon the exception provided in section 10 (iv) and has proved by leading cogent and reliable evidence like Ex. 13. There is no denial of the fact in the present case that the respondent was more than 15 years of age at the time of his adoption. But the respondent has relied upon the exception provided in section 10 (iv) and has proved by leading cogent and reliable evidence like Ex. A-8 that there is a custom in the "Kamma" community of Andhra Pradesh for adoption of a boy even above the age of 15 years. Therefore, the aforesaid exception which is engrafted in the same part of the provision of Section 10 of the Act was satisfied. Since the aforesaid custom and aforesaid adoption was also recorded in a registered deed of adoption, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the respondent has utterly failed to challenge the said evidence and also to disprove the aforesaid adoption. 28. This Court in Rup Chand Vs. Sh. Daulatu and others 1991(2) Sim. L.C. 94 has held that the right of using edges of each others fields for going to their respective fields by agriculturists is a customary right of easement and not a right of easement to be acquired either by prescription or by necessity. 29. The High Court of Allahabad in Vidya Sagar and another Vs. Ram Das and another, AIR 1976 Allahabad 415 has held in paragraph No. 4 as under: “4. India is predominantly an agrarian, country where, speaking generally, the relation between cultivators is cordial and rests on mutual regard for the convenience of others. It is, therefore, too common for one cultivator to pass over the Mend of another cultivator as a means of access to his own field and such user of the Mend of one's field by another for purposes of agricultural operations and allied activities is, generally speaking, never objected to and is, therefore, nothing but permissive. No easementary right, therefore, can be acquired in this country by use of a Mend as a way unless there is clear evidence of such user as a matter of right. I am, therefore, of the Opinion that the finding of the lower appellate Court that a right of way was acquired by respondent Ram Das over the Mend existing between plots Nos. I am, therefore, of the Opinion that the finding of the lower appellate Court that a right of way was acquired by respondent Ram Das over the Mend existing between plots Nos. 340 and 354 cannot be sustained in law in view of the requirements of Section 15 of the Indian Easements Act. The claim was rightly rejected by the trial court on the ground of necessity in the face of evidence of an alternative route being available to the respondent. In the result the appeal must succeed. 30. This Court has further held in Satya Bala and another Vs. Onkar Chand, 2014(2) Him. L.R. 1043 that it cannot be disputed that it is a common feature of the villages in Himachal Pradesh that people generally pass over the ‘MAIND’ of the land. Such like customary usage is existing in other parts of India also. Paragraph-19 of the said judgment reads as under: “19. It cannot be disputed that it is a common feature of the villages in Himachal Pradesh that people generally pass over the ‘MAIND’ of the land. Such like customary usage is existing in other parts of India also and has been noticed in Smt. Balley and another vs. Rama Shanker Lal and others AIR 1975 Allahabad 461 in the following manner:- “5. The main question that falls for determination in this appeal is whether the plaintiff can be said to have acquired a prescriptive right of way under Section 15 of the Easements Act on the 'Danda' running over the ridge 'between the two fields Nos. 30 and 31. Learned counsel for the plaintiff-respondent contended that the learned Judge of the lower appellate Court rightly applied the law in holding that the plaintiff having proved that he has been passing over the disputed passage for over 25 years after purchasing plots Nos. 9 and 10 for enjoyment thereof without any let or hindrance, it would be presumed that he did it as of right. Reliance was placed in this connection on the cases of Hari v. Mahadeo (AIR 1921 Nag 127), Phoolchand v. Murari Lal (AIR 1951 Madh Bha 89) and Tukaram Rajaram Suple v. Sonba Chindu Mali ( AIR 1959 Bom 63 ). Reliance was placed in this connection on the cases of Hari v. Mahadeo (AIR 1921 Nag 127), Phoolchand v. Murari Lal (AIR 1951 Madh Bha 89) and Tukaram Rajaram Suple v. Sonba Chindu Mali ( AIR 1959 Bom 63 ). In my judgment, the learned Judge of the court below seems to 'be of the view that once a person establishes his passing over a piece of land for more than 20 years without any evidence of interruption or hindrance, then he would be deemed to be so doing as of right and he would acquire a prescriptive right of way under Sec. 15 of the Easements Act. Even the cases cited by the learned counsel for the plaintiff-respondent do not lay down any such rule of law. It would be seen that in all those cases on the facts and circumstances it was either found that the user was as of right or the user was not as of right but was by way of leave or licence. Here in the instant case the plaintiff came with a case that there was passage one Lattha wide on which bullock carts and Ikkas could pass and he had been using it for over 25 years as of right for access from the main road to his Gher in plots Nos. 9 and 10. This affirmative case pleaded by him has not been found to be established. What has been found established is that on the ridge between the boundaries of the two cultivated fields there was a passage 1 to 2 feet wide which could be used as an access from the public road to the agricultural plots in the village lying to the south of that public road. It is the common feature in our agricultural villages that on the Mend 'boundary between two cultivated agricultural fields public generally pass and hardly by habit any agriculturist objects to it. I have no hesitation in holding that such passing over the ridges of the field to and fro by the villagers would always the permissive user. Thus an uninterrupted user by any person of a ridge between the two agricultural fields for passing over it could be presumed to be permissive and not as of right. I have no hesitation in holding that such passing over the ridges of the field to and fro by the villagers would always the permissive user. Thus an uninterrupted user by any person of a ridge between the two agricultural fields for passing over it could be presumed to be permissive and not as of right. Moreover, it would not be in public interest if this court countenances recognizing acquisition of prescriptive right of way over the boundaries of the agricultural fields as that would lead to complications in the agricultural areas having a baneful effect end completely preventing the re-arrangements of agricultural fields or their divisions. In the circumstances of the instant case in the consolidation proceedings, on the own admission of the plaintiff, Rama Shanker Lal, who appeared in the witness box, he did not ask for a chak road over the disputed land. The view of the court below that such an objection could not have been raised under Section 9 or 20 of the Consolidation of Holdings Act may be a correct view but there was nothing to prevent the plaintiff when the chaks were being carved to ask the Consolidation to leave a passage. The attempt of the plaintiff that the consolidation had put stone pillars demarcating the passage has miserably failed as there is a finding recorded that no such stone pillars were found at the spot which were put as demarcation by the Consolidator. I, therefore, hold that the lower appellate Court has misdirected itself in holding that as of right the plaintiff had 'been using the 'Danda' for access to the plots 9 and 10 from the public road. It would be 'presumed that the user was permissive. The plaintiff could not succeed therefore merely on the evidence as adduced by him that any prescriptive right of way has accrued to him under Section 15 of the Easement Act.” 31. It is clear from the judgments of this Court in Rup Chand Vs. Sh. Daulatu and others 1991(2) Sim. L.C. 94 and Satya Bala and another Vs. Onkar Chand, 2014(2) Him. L.R. 1043 (supra) that the right of using edges of each others fields for going to their respective fields by agriculturists is a customary right. 32. The Hon’ble Supreme Court in Ass Kaur Vs. Kartar Singh and others (2007) 5 SCC 561 has held as under: “18. L.C. 94 and Satya Bala and another Vs. Onkar Chand, 2014(2) Him. L.R. 1043 (supra) that the right of using edges of each others fields for going to their respective fields by agriculturists is a customary right. 32. The Hon’ble Supreme Court in Ass Kaur Vs. Kartar Singh and others (2007) 5 SCC 561 has held as under: “18. In R.B.S.S. Munnalal and Others v. S.S. Rajkumar and Others [ AIR 1962 SC 1493 ], this Court was considering the question as to whether a Jain widow could adopt a son to her husband without his express authority, being governed by the custom which had by long acceptance become part of the law applicable to them. Therein, it was observed : "It is well-settled that where a custom is repeatedly brought to the notice of the Courts of a country, the courts may hold that custom introduced into the law without the necessity of proof in each individual case" 19. The court can also take judicial notice of such customs in terms of Section 57 of the Evidence Act, 1872. As and when custom has repeatedly been recognized by the courts, the same need not be proved. Reference in regard to the Punjab 'general custom' may be made to Ujagar Singh (supra), and Bawa v. Taro [AIR 1951 Punjab 239.” 33. In my considered view, in the present case, custom to this effect has been sufficiently pleaded by defendant No. 1 in the written statement. Not only the custom of use of maind in the village by the villagers to have access to each others agricultural lands has been pleaded, it has also been proved as per the requirement of law. Incidentally, the custom of using the maind by villagers for the purpose of approaching the agricultural land has been admitted even by the plaintiff himself when he has entered into the witness box as PW-1. PW- 2 has deposed that the maind in issue was used both by the plaintiff and the defendants. DW-1 has duly proved that there exists such maind between the boundaries of the plaintiff and the defendants, which was duly reflected in the Tatima which is on record. 34. Therefore, in my considered view, the contention of the learned counsel for the appellant that in the present case the custom of usage of ‘maind’ has neither been pleaded nor proved is totally unsustainable. 34. Therefore, in my considered view, the contention of the learned counsel for the appellant that in the present case the custom of usage of ‘maind’ has neither been pleaded nor proved is totally unsustainable. It has been clearly pleaded in the written statement that use of ‘maind’ is a custom and the said custom is prevailing in the area since time immemorial. 35. It has been held by the Hon’ble Supreme Court in Bhagwati Prasad Vs. Chandramaul, AIR 1966 Supreme Court 735 that if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. 36. Learned counsel for the appellant has not been able to convince this Court that the averments made qua the custom in the written statement do not amount to sufficient pleading of custom. I have already held above that as far as the use of ‘maind’ (beer) for access to one’s agricultural land is concerned, it has been duly proved as a matter of custom not only by the contesting defendant, but existence of the same as a custom in the village has also been admitted by the plaintiff. The substantial question of law is thus answered accordingly. 37. Thus, I do not find any merit in the present appeal and there is neither any perversity nor any infirmity with the judgments and decrees passed by both the learned Courts below. Accordingly, the present appeal is dismissed with cost. CMP No. 4974 of 2015 38. During the pendency of the appeal, an application was filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, i.e. CMP No. 4974 of 2015 for restraining the respondents from interfering in any manner over Khasra No. 1182, situated in Mauja Panjgain, Tehsil and District Bilaspur, H.P. and also for restraining the respondents from raising any construction and encroaching upon any portion of the said land. 39. 39. This Court on 06.10.2015 appointed Tehsildar Sadar, District Bilaspur as Local Commissioner to demarcate the land on the spot and find out encroachment, if any, made by respondent/defendant No. 3 and any other respondent/defendant over the suit land bearing Khasra No. 1182. The report of the Local Commissioner is available on record. There is no finding returned by the Local Commissioner that the contesting respondent has encroached upon the suit land, subject matter of the application. All that is mentioned in the report of the Local Commissioner is that within the Eastern and Northern ‘maind’, respondent No. 3 and others had made encroachment by way of shrub like fencing, which was got removed at the spot and proper identification points of the land were fixed. In view of the said report, the grievance of the appellant, if any, was met at the spot and the application has thus become infructuous. Accordingly, the application stands disposed of as infructuous, so other applications, if any.