- (1.) THIS is defendants' second appeal arising out of a suit for a permanent injunction to restrain the defen dants from digging any foundations or making any constructions over the land in dis pute. The plaintiff claimed that he had ease mentary rights over this land and the same Were likely to be interfered with if the in junction sought for was not granted. The rights he claimed consisted of the right of passage and the right to use the land as Sahan for purposes of sitting and sleeping. The defence was that the plaintiff had no such right and that the land belonged to the defendants and that they had the right to dig foundations and make constructions. The trial Court dismissed the suit. On ap peal by the plaintiff the additional CivH Judge reversed the trial Court's decree and decreed the suit and issued the injunction prayed for. Aggrieved by the decree, the defendants have come up in second appeal.
(2.) LEARNED counsel for the appel lants has contended firstly, that the findings recorded by the lower appellate Court are not findings but the only argument advanc ed is that they cannot be sustained on a proper appreciation of the evidence. It is not open in the second appeal to upset the findings of the fact recorded by the first appellate Court after due consideration of the oral and documentary evidence produc ed in the case, only on the ground that another conclusion is possible if a reap-appraisement of the evidence is made. The rending of the lower appellate Court is that the defendants have failed to prove their title over the land in suit The defendants had relied upon the sale deed hi their favour dated 28-12-1962 in which this land was shown as belonging to the vendor, but the defendants failed to show that their vendor had any title hi this land. The evidence pro duced by the defendants regarding posses sion was also disbelieved by the Court be low and it has recorded a finding that the defendants were neither to possession nor had ever used this land. The finding that the defendants were neither the owners nor hi possession of the land hi suit being bas ed on evidence, has to be taken as final. The real contention of the learn ed counsel is that the right to use the land for purposes of sitting and sleeping is not such a right which could be regarded as an easementary right entitling the plaintiff to get an injunction. The lower appellate Court has found that this land was being used by the plaintiff and his ancestors for more than twenty years continuously and without any interruption as a Sahan for purposes of sit ting and sleeping and also as a passage. Learned counsel has not contended that the right to passage is not an easementary right. He has confined his arguments to the right regarding the use of the land for pur poses of sitting and sleeping. The submis sion is that such user of land may be for the benefit of residents of the house, but cannot be regarded as the doing of some thing for the beneficial enjoyment of the dominant tenement itself. The contention is not sound.
(3.) EASEMENT has been defined in Section 4 of the Easements Act as:- "An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent some thing being done, in or upon, or in respect of, certain other land not his own." He right which the plaintiff claimed on the land in dispute was being exercised by the plaintiff and before him by his ancestors in their capacity as residents of the adjoin ing house. In the case of Re Ellen borough Park; Re Davies (deceased) Powell v. Madison, (1955) 2 All ER 38 right to use the land as a pleasure ground was held to be an easementary right. Dankwerts, J. deal ing with the contention that:- "the easement must be calculated to benefit the dominant tenement as a tene ment and not merely to confer a personal advantage on the owner of it, " observed: 'This I find somewhat difficult to apply, for it seems to me that the benefit received from a right of way is necessarily a benefit to the owner or occupier of the tenement rather than to the tenement itself, though a right of support might be said to benefit the tenement as such ......... I find it diffi cult to see what are the objections to a right to use neighboring land for the pur pose of enjoying air and exercise and simi lar amenities. Further, it is evident that the attachment of such amenities for the owner ship of a particular house may add consi derably to the value and the enjoyment of the house ......... In my view ......... the right to use a pleasure ground is a right known to the law and an easement." Section 4 of the Easements Act places no restrictions on the nature of user of the servant heritage by the owner or occupier of the dominant heritage. A right of ease ment need not therefore, necessarily be a right yielding direct benefit to the dominant tenement itself, but may consist of a right which may yield direct benefit of the owner or occupier of the property and only conse quentially and indirectly be for the more beneficial utilization of the dominant tene ment. If the inhabitants, for a more beneficial living and enjoyment of the house, use the adjoining land for sitting and sleep ing purposes, the user cannot but be deem ed to be for the benefit of the occupants and consequentially for the beneficial enjoy ment of the house itself because if the user is an amenity for the residents of the house it is bound to add to the value and enjoy ment of the house. Applying the test which Dankwerts, J. applied, the use of the land for purposes of sitting and sleeping by the plaintiff, in the present case, will amount to a right of easement entitled to be protected Jly law. ;