A.N.SURTI, J.M.SHETH - (1.) This appeal is directed against the judgment and decree passed by the learned Assistant Judge Nadiad in Civil Appeal No. 108 of 1959 allowing the appeal and dismissing Regular Civil Suit No. 169 of 1957 with costs throughout.
(2.) The learned Single Judge of this Court before whom the appeal was placed for hearing has referred it to the Division Bench and that is why the matter has come before us.
(3.) Mr. C. M. Trivedi appearing for the plaintiff-appellant has urged that even though the plaintiff appellant in his plaint claimed ownership over the suit Chhindi in law he is entitled to take an alternative inconsistent plea viz. that he has got an easement right to take air and light through the door and the openings in his back wall abutting on the suit Chhindi and he is exercising such right and making such use from times immemorial. Mr. Trivedi has vehemently contended before us that even in the decision relied upon by the learned appellate Judge it has been in terms observed that such inconsistent plea can be taken and from the mere fact that ownership was claimed the Court could not jump to the conclusion that easement right was not established. He has further contended that this was not a case where right of way was claimed through the suit Chhindi. It was a case of right to take air and light through the door and the openings (Jalis) abutting on the Chhindi. In such a case mere long user would be sufficient to reach the conclusion that there was a requisite animus. Mr. Trivedi has further submitted that the Plaintiff appellant in his deposition had stated that he had not stayed in the house for the last several years and the house in question was in occupation of his tenants. Tenants stated about such enjoyment. It could not therefore be in the circumstances of the case said that the enjoyment was in the exercise of the rights of ownership and not in the exercise of the right of easement. He has therefore contended that in the circumstances of the case the learned appellate Judge was not justified in reaching the conclusion that there was no requisite animus to enable the appellant to get the right of easement.;