Beroome, J. - (1.) THIS second appeal has been referred to us at the instance of a learned Single Judge, who felt that an authoritative decision was called for as to the combined effect of Sections 15, 45 and 51 of the Easements Act.
(2.) THE suit out of which this appeal arises is for a perpetual injunction to restrain the defendants from interfering with the discharge of rain-water through certain spouts (parnalas) that open from the plaintiff's roof on to their land. From the findings of fact given by the Courts below it appears that when the plaintiff purchased the house in 1965, it was a mere ruin, having collapsed 5 or 6 years before; but previously, when the house was standing, the plaintiff's predecessors had been discharging rain-water on to the defendants' land from the roof of the house through parnalas for more than 20 years. The learned Munsif of Muzaffar nagar held that they had thus acquired a prescriptive easementary right and on this finding decreed the suit. But in ap peal the learned Second Additional Civil Judge of Muzaffarnagar found that though a prescriptive easementary right had been earlier acquired, it had not been exercis ed for the five or six years Immediately preceding the suit, as during that time the house was a roofless ruin and no water could be discharged on to the defendants' land. He acordingly held that the suit could not succeed, because the easement claim ed by the plaintiff had not been enjoyed within the two years next before the institution of the suit, as required by the fifth paragraph of Section 15 of the Easements Act. The ap peal was therefore, allowed and the suit dismissed. Mr. Ojha, who appears for the plaintiff-appellant, has first of all attempted to argue that since, according to the findings of the Courts below, the easementary right had already been ac quired earlier, the case is covered by Sections 45 and 51 of the Easements Act. The collapse of the house resulted in ex tinction of the easement within the mean ing of Section 45 of the Act (which says that "an easement is extinguished when either the dominant or the servient heri tage is completely destroyed"); but, he contends, the easement was subsequently restored under GL (c) of Section 51, which, lays down: "An easement extinguished under Section 45 revives ..................(c) when the destroyed heritage is a dominant build ing and before 20 years have expired such building is rebuilt upon the same site and in such a manner as not to im pose a greater, burden on the servient heritage." In the present case the finding Is that the house constituting the dominant heri tage remained in a collapsed and roofless stage for only 5 or 6 years and then the plaintiff purchased the property and re built the house, long before the period of 20 years mentioned in Section 51 had elapsed,
(3.) THE fallacy in this line of argu ment, however, is that it assumes that an absolute right of easement was in ex istence at the time when the house col lapsed. If there was no such absolute right in existence, there could be no question of its extinction and the provisions of Sections 45 and 51 would not be attract ed; and it appears to us that the finding recorded by the Courts below that the plaintiff's predecessors had acquired an absolute easementary right by prescrip tion was wrong. Such a right can only be acquired under the provisions of Section 15 of the Act, the relevant portions of which run as follows:- "............When a right of way or anyother easement has been peaceably and openly enjoyed by any person claim ing title thereto, as an easement and as of right, without interruption and for twen ty years, the right to such ......... othereasement shall be absolute. Each of the said periods of twenty years shall 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." In view of the wording of this Section, It cannot be said that enjoyment of an easement for any period of 20 consecutive years will create an absolute right- the only period of 20 years' enjoyment that will do so is a period ending within two years next before the institution of a suit in which the claim to the easement is contested. As pointed out in Siti Kanta Pal v. Radha Gobinda Sen, AIR 1929 Call 542:- "It has been authoritatively held that a title to easement is not complete merely upon the effluxion of the period men tioned in the Statute viz. 20 years and that however long the period of actual enjoyment may be, no absolute or inde feasible right can be acquired until the right is brought in question in some suit and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoy ment for 20 years upto within 2 years of the institution of the suit." A similar view has been expressed by a learned Single Judge of this Court in Sughar Singh v. Putta Singh, 1957 All WR (HC) 186. In the present instance there is no suggestion that there was ever any earlier suit about the easementary right that was enjoyed by the plaintiff's pre decessors; and in the circumstances it cannot be said that those persons had acquired an absolute and indefeasible right under Section 15. It follows from this, as already pointed out, that when the house collapsed there was no absolute easementary right in existence which could be subject to extinction; and thus the provisions of Sections 45 and 51 are not at all applicable to the facts of this case. ;