Shinde, J. - (1.)THIS is an appeal by the deft, against the judgment and decree of the Dist. J. Gwalior, who amending the decree of the trial Court decreed the suit of the pltf. in toto. The facts of the case briefly are as follows. The pltf. filed a suit against the deft, in the Court of the Cantonment Mag. Morar, alleging that between the houses of the parties there is open land on which the pltf's. sweeper has a right of way to come and clean pltf's. privy. On this land the deft, constructed his privy and thereby obstructed the easementary right of the pltf. By the same act he also obstructed the access of a light and air to the pltf's. privy. The deft. also encroached upon the walls of the pltf. by fixing girders into the walls and resting the stone, slabs on them. On these allegations the pltf. prayed for a decree to remove the structure of the deft or in the alternative for a decree to remove the encroachment on the walls and the obstruction of way light and air.
(2.)THE trial Court gave a decree for removal of encroachment on the walls and dismissed the rest of the suit. Both the parties preferred an appeal against this decree in the Court of the Dist. J. at Gwalior. The learned Dist. J. dismissed the appeal of the deft and decreed the suit of the pltf. as prayed foe in para 7 (b) of the plaint Against this decree the deft. has filed this appeal.
The learned counsel for the applt. has raised three contentions. His first contention is that the pltf. has failed to prove that he has been enjoying the right of way for twenty years both as an easement and as of right and hence no easementary right accrues to she pltf. on she open land Before proceeding to determine this question it is necessary to examine she law on the subject. It is important to note that the suit was filed on 1 -11 -1945. At that time there was no Easements Act in force in Gwalior State. However, the legislature and Judicial Department by its departmental order No. 5 of samvat 1997 enjoined that principles of general laws in force in British India should be followed in Gwalior State provided there is no analogous law in force in the State. Therefore, principles of the Indian Easements Act are to be applied to this case in so far as it is a general law and no analogous law was in force in Gwalior State when the suit was filed. Section 15 of the Indian Easements Act lays down that where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years the right shall be absolute. Before, therefore, a right of way can be acquired as an easement it is necessary to prove that (1) there has been an actual enjoyment of the right; (2) that the enjoyment has been open; (3) that the enjoyment has been peaceable; (4) that the enjoyment has been as of right; (5) that it has been enjoyment as an easement; (6) that it has been enjoyed without interruption and that (7) it has been enjoyed for twenty yours. Unless all these ingredients fare proved no right of easement can accrue to the owner of a dominant heritage.

(3.)THE learned counsel for the applt. argues that the pltf. has not proved that he has bean enjoying the right of way (1) as of right and (2) as an easement. The gravamen of his contention is that the pltf. has not appeared in the witness -box to depose that he enjoyed the right as of right and as an easement. It is true that the pltf. has not appeared as a witness in the case. But whether the user was with an animus as of right is a question of fact in every case. The pltf. has produced two witnesses Sanna and Mt. Bhuri who have been cleaning the latrines for a number of years Mt. Bhuri states quite clearly in her deposition that she has been cleaning pltf's. privy ever since she was grown up enough to start work. Her age at the time of the statement was 50 years. She also states that all the time she has bean working these latrines have been in use and the use of them was never stopped. The deft. has adduced no evidence in rebuttal. There is no evidence on record to show that the right of way was being used as a licence or by express or implied permission of the Municipality to which apparently the open land belongs. No relationship or friendship between the pltf. and the owner of the servient heritage has either been pleaded or proved and as the right is found to have been enjoyed openly, peaceably and for a very long period without express or tacit consent of the servient owner, the pltf. naturally starts with the presumption in his favour that he enjoyed the right adversely to the servient owner and assertively with his consent. Kunjammal v. Rathinam Pillai,, A.I.R. 1922 Mad. 5 : (45 Mad. 633) and Maharajah of Venkatagiri v. Ardhamala Yagadu, : A.I.R. 1937 Mad. 953 : (175 I.C. 668). This presumption has not been rebutted by any evidence by the deft. The learned counsel for the applt. has cited Siti Kanta Pal v. Radha Govinda, : A.I.R. 1929 Cal. 542 at p. 543 : (56 cal. 927) in support of his argument. In that case the learned Judges of the Calcutta High Court observed as follows:
Whether an enjoyment is as of right or not, is, in my opinion, a pure question of fact and enjoyment as of right cannot be inferred as a matter of course from a finding or user only.

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