JUDGMENT : By way of instant Regular Second Appeal, appellants have assailed the judgment and decree dated 17.06.2008, passed by learned District Judge, Hamirpur in Civil Appeal No. 50 of 2005, whereby the judgment and decree dated 01.04.2005, passed by learned Civil Judge (Junior Division), Barsar, District Hamirpur, H.P. in Civil Suit No. 63 of 1999, has been reversed. 2. Parties hereafter shall be referred by the same status as they held before learned Trial Court. Respondent herein was the plaintiff and appellants herein were the defendants before the learned Trial Court. 3. Plaintiff filed a suit against defendants for following reliefs: - “It is, therefore, prayed that a decree for fixation of boundary by way of demarcation with a consequential relief of permanent prohibitory injunction restraining the defendants from raising any sort of construction over the suit land comprised in Khata No. 40 min, Khatauni no. 42, min, Khasra No. 215 area 1k-13M and Khata No. 41, Khatauni No. 43, Khasra No. 218 area 1 Kanal as per jamabandi 1996-97, situated in Tika Bhota, Tappa Paplu, Tehsil Barsar, District Hamipur, H.P. or blocking the passage of plaintiff to her house or to create any nuisance in the passage on the said land and interference in any manner whatsoever over the suit land and in case the defendants succeed in raising any construction over the suit land or construction of wall in such manner which create nuisance to the plaintiff for the use of her house or the passage then decree for mandatory inunction directing the defendants to restore the suit land to its original shape by way of demolition of such construction be passed in favour of the plaintiff and against the defendants within cost.” 4. Plaintiff is co-owner of house and land comprised in Khasra No. 218 and exclusive owner of house and land comprised in Khasra No. 215, situate at Tika Bhota, Tappa Paplu, Tehsil Barsar, District Hamirpur, H.P. Defendants are owners of Khasra No. 219 in the same revenue village. Plaintiff filed the suit on the premise that defendants were interfering in Khasra Nos. 218 and 215. Plaintiff also asserted her right of passage through Khasra No. 219 and alleged that defendants had threatened to obstruct said passage. 5. Defendants denied existence of any passage through Khasra No. 219. Interference in Khasra Nos. 218 and 215 was also specifically denied. 6. 218 and 215. Plaintiff also asserted her right of passage through Khasra No. 219 and alleged that defendants had threatened to obstruct said passage. 5. Defendants denied existence of any passage through Khasra No. 219. Interference in Khasra Nos. 218 and 215 was also specifically denied. 6. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- 1. Whether the plaintiff is the owner in possession of the suit land? …..OPP 2. Whether the plaintiff is entitled to a decree for fixation of boundaries by way of demarcation of the suit and as alleged? ……OPP 3. Whether the plaintiff is entitled to the prohibitory injunction, as prayed for? …….OPP 4. Whether the plaintiff is entitled to the mandatory injunction as claimed? ……OPD 5. Whether there exits a path s alleged, if so, its effect? …….OPD 6.Whether the suit is not maintainable in the present form? ……..OPD 7. Whether the plaintiff has a cause of action? ……..OPD 8. Whether the plaintiff is estopped from filing the suit by her act and conduct? ………OPD 9. Whether the suit bad for non-joinder and mis-joinder of the necessary ……….OPD 10. Whether the suit had not been properly valued for the purpose of court fee and jurisdiction? ……….OPD 11. Whether this court has no jurisdiction to hear and decide the present suit? ……….OPD 12. Relief. 7. Issue Nos. 1 and 6 were decided in affirmative and all other issues were decided in negative. The suit of the plaintiff was accordingly dismissed. Learned Trial Court held that there was non-compliance of provisions of Order 7 Rule 3 of the Code of Civil Procedure. Plaintiff had failed to identify the passage alleged to be existing in Khasra No. 219. 8. Plaintiff assailed the judgment and decree passed by learned Trial Court in first appeal under Section 96 of the Code of Civil Procedure. In first appeal, learned Lower Appellate Court reversed the findings returned by learned Trial Court and decreed the suit of the plaintiff to the following effect: - “In view of my findings on point No. 1 above, the present appeal succeeds, which is accordingly accepted, with costs through-out. The impugned judgment and decree are set aside. In first appeal, learned Lower Appellate Court reversed the findings returned by learned Trial Court and decreed the suit of the plaintiff to the following effect: - “In view of my findings on point No. 1 above, the present appeal succeeds, which is accordingly accepted, with costs through-out. The impugned judgment and decree are set aside. Consequently, the suit of the plaintiff, Smt. Rama Devi, is decreed for declaration to the effect that she has a right of passage by way of easement of custom and prescription to pass through Khasra No. 219 to her houses and other property. A further decree or permanent prohibitory inunction is passed in her favour and against the defendants restraining them from causing any nuisance or creating any obstruction in such passage and yet another decree for mandatory injunction is also passed in favour of the plaintiff and against the defendants directing them to remove the obstruction created by them in the said passage, forthwith.” 9. Learned Lower Appellate Court had held that the property in question was duly identified by way of site plan Ext. PW5/A. It was also held that on the basis of oral and documentary evidence on record, the existence of passage on Khasra No. 219 was proved and it was also proved that the plaintiff had customary and prescriptive right of easement to use the said passage. The existence of availability of alternative passage to the house of the plaintiff was held to be of no consequence for deciding the controversy between the parties. 10. The instant appeal stands admitted on the following substantial questions of law: - 1. Whether the learned 1st Appellate Court below has wrongly reversed the well-reasoned judgment passed by the learned trial court whereby the suit of the respondent has been dismissed on account of the failure of the plaintiff to identify the suit property and substantiate/corroborate Ext. PW5/A and for having failed to establish the existence of the alleged path over the suit land? 3. Whether the suit has wrongly been decreed for declaration of right of passage by way of easement of custom and prescription to pass through the suit land without establishment of the said claim while to the contrary, the existence of the alternate general public path adjacent to the house of the plaintiff has been duly proved even by the plaintiff’s witnesses PW-3 and PW-6 themselves? 11. 11. I have heard learned counsel for the parties and have also gone through the records. 12. In the first instance, it is necessary to ascertain as to what kind of right of passage has been claimed by the plaintiff over Khasra No. 219. Indisputably, Khasra No. 219 did not belong to plaintiff. Exhibit P-3 is the jamabandi of said Khasra Number on record. Roshal Lal and Shyam Lal, defendants are recorded owners of said land. The area of said land is 1-4 Bighas. As per averments made in the plaint, plaintiff has asserted her right of passage over Khasra No. 219 in following terms: - “That the defendants are threatening to block the passage as shown in the rough site plan Annexure-A and are causing nuisance to the passage to the house of the plaintiff unnecessarily. The defendants are very headstrong and quarrelsome persons and they are threatening the plaintiffs with dire consequences who is a poor widow and are threatening to block the passage by constructing boundary and to create hindrance in the user of the house of the plaintiff. The plaintiff has been exercising the right of passage as a matter of right since the time of her ancestor and the said right is being exercised on the basis of custom which is ancient and reasonable and duly recognized, thus the plaintiff has got customary right of passage through the land of the defendants as shown in the site plan and that cannot be obstructed to and in case the defendants raise the construction, then the plaintiff is entitled to demolition of structure.” 13. Thus, plaintiff claimed customary right of passage from Khasra No. 219. Customary right has been defined in Section 2(b) of Indian Easements Act, 1882 as under: - “2(b) Any customary or other right (not being a license) in or over immovable property which the [Government], or the public or any person may possess irrespective of other immovable property;” 14. The customary easement is defined in Section 18 of the Act as under:- “18. Customary easement. -An easement may be acquired in virtue of a local custom. Such easements are called customary easements. Illustrations”. (a) By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. The customary easement is defined in Section 18 of the Act as under:- “18. Customary easement. -An easement may be acquired in virtue of a local custom. Such easements are called customary easements. Illustrations”. (a) By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A having become the tenant of a plot of uncultivated land in the village breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom. (b) By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour's privacy. A builds a house in the town near B 's house. A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A 's house which are ordinarily excluded from observation, and B acquires a like easement with respect to A 's house.” 15. The customary right referred to in Section 2(b) of the Act is distinguishable from the customary easement as defined in Section 18 of the Act. The customary rights arise from customs but need not be appurtenant to the dominant tenement. No fix period of enjoyment is necessary to establish customary rights, but the custom must be proved to be reasonable and certain. On the other hand, for proving customary easement the appurtenant to the dominant tenement is sine quo non. It has to be pleaded and proved like any other easement. 16. Plaintiff, as noticed above, had pleaded existence of customary right. The record of the case nowhere reveals that the plaintiff had pleaded or proved the purpose or extent of alleged passage through Khasra No. 219. It was not her case that the claimed passage through Khasra No. 219 was the only passage available to the property of plaintiff. There is nothing also to suggest as to from where the passage started so as to continue through Khasra No. 219. The certainty of custom has to be pleaded and proved. The vague and absurd oral statement(s) about the custom to use other’s lands for passage cannot be held to be sufficient compliance. 17. There is nothing also to suggest as to from where the passage started so as to continue through Khasra No. 219. The certainty of custom has to be pleaded and proved. The vague and absurd oral statement(s) about the custom to use other’s lands for passage cannot be held to be sufficient compliance. 17. Total area of land comprised in Khasra No. 219 measures 1-4 Bighas i.e. about 1000 square meters. The entire stretch of Khasra No. 219 cannot be said to be used as passage. It was for plaintiff to have pleaded and proved the exact extent of passage so claimed by her through Khasra No. 219 by sufficiently identifying the same in order to prove the reasonableness of alleged customary right. This gains more significance when the evidence suggests existence of public path as an approach to the house of plaintiff. 18. Plaintiff has placed reliance on document Ext. PW5/A for identifying the claimed passage. No village map has been placed on record to authenticate or corroborate the contents of Ext. PW5/A. Admittedly, the site plan Ext. PW5/A has been prepared by a person who claimed himself to have done diploma in preparation of plans. Plaintiff examined the author of Ext. PW5/A as her witness (PW-5). By way of his affidavit, this witness stated that he had prepared plan Ext. PW5/A on the spot on the asking of plaintiff. In cross-examination, he admitted that he had not associated any owner of the adjoining land. He had mentioned the Khasra Number as disclosed to him by the plaintiff. He had not associated local Patwari. Thus, from deposition of PW-5, it is clear that the site plan prepared by him had no reference to revenue record. The exact position of Khasra No. 219 vis-a-vis Khasra Nos. 215 and 218 could be evident only from field map or the village map. In such view of the matter, the reliance placed on document Ext. PW5/A by learned Lower Appellate Court is clearly misplaced. PW-5 had not even associated the defendants. In this view of the matter, the passage shown in site plan Ext PW-5/A does not satisfy the legal requirements. Even otherwise the path shown in above said document does not reveal its exact extent and purpose. In case document Ext. PW5/A by learned Lower Appellate Court is clearly misplaced. PW-5 had not even associated the defendants. In this view of the matter, the passage shown in site plan Ext PW-5/A does not satisfy the legal requirements. Even otherwise the path shown in above said document does not reveal its exact extent and purpose. In case document Ext. PW5/A is ignored, there is nothing on record to suggest nature, extent or even existence of passage over Khasra No. 219 as claimed by the plaintiff. 19. While cross-examining one of the defendants as DW-1, it was suggested on behalf of the plaintiff that common passage touched Khasra No. 219 and from there onwards plaintiff had a passage to her house through Khasra No. 219. Such suggestion was denied by DW-1. However, it can be inferred from such suggestion that the plaintiff claimed a passage through Khasra No. 219 to approach her house from a common passage. Such stand of the plaintiff firstly is not her pleaded case and secondly the same even contradicts the contents of Ext. PW5/A as no such link between common passage and house of plaintiff is described therein by way of passage through Khasra No. 219. 20. Learned Lower Appellate Court decided the appeal on the premise that plaintiff had claimed right of passage through Khasra No. 219 as customary and prescriptive easement. Learned Lower Appellate Court has clearly erred in drawing such an inference which was not borne from the record. 21. Resultantly, the appeal deserves to be allowed. Judgment and decree dated 17.06.2008, passed by learned District Judge, Hamirpur in Civil Appeal No. 50 of 2005, is set aside and judgment and decree dated 01.04.2005, passed by learned Civil Judge (Jr. Division), Barsar, District Hamirpur, H.P. in Civil Suit No. 63 of 1999, is affirmed in light of the observations made herein. 22. The appeal is accordingly disposed of, so also the pending miscellaneous applications, if any. Decree sheet be prepared accordingly.