HAJI UMARANI KACHI Vs. GANESHBHAT PURSHOTTAMBHAT
HIGH COURT OF BOMBAY
HAJI UMARANI KACHI
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Chandavarkar, J. -
(1.) THE lower appellate Court has found that the defendants have acquired a right of easement over the western "bol" of the plaintiff, of discharging rain and refuse water and the plaintiff's suit for an injunction has been dismissed on that ground. But it appears to have overlooked Section 15 of the Easements Act (V of 1892), according to which, for the acquisition of such an easement, it must have been peaceably and openly enjoyed by the person claiming it as an easement and as of right without interruption and for twenty years and the period of twenty years must be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Here the finding of the lower appellate Court is that the easement was discontinued in 1900. The suit was brought in 1904. Therefore there was no acquisition of the easement claimed. But it is said that Section 15 has no application because here it is a case of immemorial user. There was no question of immemorial user, raised in the Courts below. The lower appellate Court relies on Section 47 of the Easements Act but that section comes into operation only where under Section 15 an easement has been acquired. Here as there has been no acquisition of an easement, the question of its extinction does not arise.
(2.) WE must reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs upon the respondents both in this and the lower appellate Court.;
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