- (1.) THIS is plaintiffs' appeal arising out of a suit1 for manda tory injunction to direct the defendants to close the opening shown by letters in the site plan given at the foot of the plaint. The plaintiffs alleged that in the wall CD the defendants forcibly made an opening measuring 3' x 3' on 16th July 1961 as a result of which the latrine and Angan of the plaintiffs' house were visible and the privacy of the plaintiffs were Interfered with. They also alleged that purdah system was observed in their family and the alleged opening greatly interfered with that system. Con sequently they asked the defendants to close the opening but they paid no heed hence the suit Was filed for the afore said reliefs. The defendants resisted the suit on a number of grounds. They allied. That the opening was not .new. and that the plaintiffs did not have. any" right of privacy nor that right was in terfered with. They further alleged that they had acquired a right of easement of light and air through the disputed window. They asserted that .38 the old window had been damaged on account of rains they wanted to replace the same. Plea of limitation was also raised.
(2.) THE trial court dismissed the suit. The appeal preferred by the plain tiffs was also dismissed. They have now come to this Court in second appeal. Both the courts below have held that the disputed opening in the wall had been in existence for more than 20 years. The learned counsel for the plaintiffs appellants urged that while coming to this conclusion the appellate court below did not properly appreciate the report of the Amin which according to the learned counsel established be yond doubt that the opening made in the wall was a new one and had not been in existence for more than 20 years as al leged. This contention has no force. It appears that no objections were filed against the report of the Amin and the plaintiffs did not produce any evidence to substantiate that the holes etc. in the wall were new and the opening in the wall was also new. The oral evidence adduced by the plaintiffs was found to be contradictory. The plaintiffs had de posed that while the defendants had made opening in the wall he brought Janardan Pandey and Sheo Kumar Rai who persuaded the defendants to close half of the opening but significantly these two persons were not produced as witness in the case. The testimony of Sheodhari Pandey was on critical exa mination found to be unreliable. The defendants had examined Chhangur Ram. a mason whose statement was found to be trustworthy. Defendant No. 1 also examined himself to substantiate the case set up by the defendants. On a consideration of the entire evidence on the record and the surrounding circum stances the appellate court below con curred with the finding of the trial court that the disputed opening was an old one and had existed at least for more than 20 years and that mere replacing of Kiwar and chaukhat therein would not create any right to the plaintiffs to get it closed.
(3.) IT was next urged that the defendants failed to establish that they had enjoyed access and use of light and air through the said opening as of right, hence the alleged easement had not be come absolute and indefeasible and the plaintiffs were entitled to get the dis puted opening closed. Section 26 of the Indian Limitation Act of 1908 which corresponds .to Section';.25 of- the.- 'Limitation Act of 1963r provides that "where: the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement and as of right without interruption and for 20 years.- the right, of such access and use of light or air shall be absolute and indefeasible. In order to make such a right absolute and indefeasible, it is ne cessary to establish that the access and use of light had been enjoyed also as of right. The words, 'as of right' mean "without permission or favour." The user as of right, therefore, connotes a user in the assertion of right as against all persons and would not mean .a right ac quired through a grant or permission from the servant owner. A permissive user is not a user as of right but it is an enjoyment in such a manner as not to in volve the admission of obstructive right in the owner of the servant tenement. Whether a user was as of right or not has therefore, to be decided on the basis of the surrounding circumstances and the facts established in the case. If long open user is established a presump tion can legitimately be drawn, in the; absence of other circumstances, that it has been as of right. Obviously the party claiming the easement has to establish that the user is as of right. If the enjoyment has not been made secret ly or stealthily or by tacit sufferance or by leave or favour or by license, but has been made openly and notoriously, it would be an enjoyment as of right. There is ample authority for the pro position that it is for the party oppos ing the claim of easement to show that user was on license or by fraud, force or secrecy. The relationship between the parties and the circumstances under which the user has taken place would also be relevant factors for consideration in this behalf.;