- (1.) THIS is a second appeal by Magni Ram and Baloo Ram defendants in a suit for demolition of certain constructions and for grant of a permanent injunction which was decreed against them by the Civil Judge Bhilwara. The decree was confirmed on appeal by the District Judge, Bhilwara.
(2.) BETWEEN the houses of the plaintiffs and Magni Ram and Baloo Ram defendants there is a piece of enclosed open land marked ABCD in plan Ex. 17. This land is situated to the south of the house of the plaintiffs. Eight Baris marked H to O, 8 Roshandans marked Y I to Y8 and one window marked C of the house of the plaintiffs open towards this land. Further 9 open projecting spouts of the house of the plaintiffs discharge on this land. Three of these spouts are on the first floor and marked P. Q and R. Six of them are on the second floor and are marked S to X, There is an opening EF in the northern wall of the contesting defendants through which they could have access to the land ABCD. It is through this opening EF that the water from the house of the plaintiffs discharging on the land ABCD flows out through the house of the contesting defendants. The contesting defendants started making constructions on the land ABCD in the year 1953. The present suit was then instituted. An order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. This order was defied and the constructions were raised so as to block the three spouts P. Q and R and all the 17 apertures. The plaint was thereafter suitably amended. The case of the plaintiffs was that either they were the exclusive owners of the land ABCD or they were the joint owners of it along with the defendants or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. They prayed that the constructions made by the contesting defendants on the land ABCD may be ordered to be demolished and a permanent injunction may be granted to safeguard their rights in respect of the apertures and the spouts. They also prayed that the contesting defendants be ordered to repair their constructions which they had demolished for making their new constructions. The main contention on behalf of the appellants is that the claim for easement put forward on behalf of the plaintiffs cannot be said to have been perfected by exercise for the statutory period as there was no animus on their part of enjoying the easement as such, they being under the belief that the land ABCD was their own. Reliance was placed on Lalit Kishore V. Ram Prasad (1) and Sayrabi V. Ahmedji (2 ). On behalf of the respondents the decisions in Mst. Umrao Kanwar Vs. Mst. Ram Pyari (3), Dwarka Vs. Ram Jatan (4), Mahesh Pratap Singh Vs. Rampal Singh (5) and Rau Rama Vs. Tukaram Nana (9) were referred to. The relevant portion of sec. 15 of the Easements Act runs as follows: - "acquisition by prescription:: - Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, without interruption, and for twenty years, and Where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subject to artificial pressure, or by things affixed thereto, as an esaement, without interruption, and for twenty years and 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 to such access and use of light or air, support or other easement, shall be absolute. " It will be noticed that the easement for the access and use of light and air and for support can be acquired by peaceable enjoyment without its enjoyment being as of right. It is only in case of other easements that it is necessary to enjoy them as of right in order to acquire an absolute r;ght in respect of them. The question of exercise of the right of easement with the necessary animus therefore only arises in respect of the right of discharging water through the 9 spouts in the present case. It has been observed in Mst. Umrao Kanwar Vs. Mst. Ram Pyari (3): - "it may be added that in the case of an easement relating to the the passage of light and air it would be too much to expect that a dominant owner should be conscious every minute of the prescriptive period that he is exercising an easement over the servient tenement. One may have such conscious knowledge while exercising an easement like right of way over another man's land,but in the case of light and air which comes automatically, one may not be even conscious of the easement he enjoys so long as it is not disturbed. " As I have pointed out about sec. 15 does not require that in order to acquire a right of easement of light or air or support a conscious exercise of the right is required. Coming now to the question of animus in the case of the easement of discharging water through the spouts in Narendra Nath Barari Vs. Abhoy Charan Chattopadhya (7) a Full Bench of the Calcutta High Court held that a suit is not liable to be dismissed because the plaintiff claims in the alternative over the same plot of grounds the rights of ownership and of easement. This view has been consistency followed. The other leading case on the subject is the decision of a Full Bench of the Madras High Court in Suba Rao Vs. Lakhmana Rao (8) in which it was held that a man is not finally precluded from claiming the benefit of an casement merely because in the course of legal proceedings he made an unfounded claim to be owner however strong evidence such a claim might be against him. It was observed: - "our opinion is that while the mere putting forward of a wider claim in legal proceedings is not conclusive against a right of easement, yet the question quo animo egerit to what purported character are the acts of user to be ascribed is one which the Court must answer. "
(3.) WHETHER or not the right was exercised with necessary animus is a question of fact to be determined in each case. In the present case there can be no doubt that the plaintiffs neither had any ownership in the land ABCD nor could they possibly have entertained any belief that they had such ownership. As has been pointed out above the land was not accessible from the house of the plaintiffs. On the other hand it was accessible from the house of the contesting defendants through an opening in their wall. The plaintiffs opened a window in their house towards this land only with the permission of the contesting defendants. In the absence of any belief in the ownership of the land ABCD it must be presumed that the plaintiffs had the animus of enjoying the right of easement as an easement. In this connection the following observations made in Dwarka Vs. Ram Jatan (4) may be referred to:- "where the owner of one property exercises certain rights of enjoyment over the property of another for the beneficial enjoyment of the former, he must be presumed to possess an animus which is manifestly to his advantage. " I accordingly hold that the plaintiffs enjoyed the right as easement for the prescri-ded period. .;