BHANDARI, J. - (1.) THIS Civil Second Appeal by the defendant arises under the following circumstances.
(2.) TWO houses adjacent to each other as shown in plaint (Ex. 3) on the record situated in Jodhpur City formed one single house at one time. Of these two houses, the southern house belongs to Mst. Sardari plaintiff-respondent, while the northern house belongs to Mst Shiv Pyari defendant-appellant. Outside both the houses, there is a Chabutra with a staircase which is marked by letters EBCF in the plan. Part of the Chabutra is in front of the house of Mst. Sardari, while the rest with the staircase is in front of the house of Mst. Shiv Pyari. In front of both the houses, there is a public road. The case of the plaintiff is that to have access to the public road from her house, she has to make use of the Chabutra and the staircase marked ABCD in front of the house of the defendant. She claimed that she had the right of easement of necessity to the use of the 'chabutra' ABCD with the staircase as there was no other way to go to the public road from her house. She further claimed that she had acquired the right of easement by way of prescription as she and her predecessors-in-title had been using the 'chabutra' ABCD and the staircase for going and coming out of their house for more than 20 years. In the suit Bhanwarlal husband of Mst. Shiv Pyari has also been made a defendant. It is alleged that the defendants had placed three slabs at the place AB on the Chabutra ABCD in order to obstruct the plaintiff's passage to her house. She, therefore, prayed for a declaration that she had a right of easement as described above and further prayed for the removal of the obstruction and also for grant of a permanent injunction restraining the defendants from placing any obstruction in her way in future. The trial court decreed the plaintiff's claim holding that the plaintiff had acquired the right of easement by prescription over the 'chabutra' ABCD and the staircase. The decree was maintained in first appeal by the defendants. Hence this second appeal on behalf of the defendants. For proper appreciation of the arguments of the learned counsel for the defendant-appellants in this case, it may be mentioned that at one time the house of the plaintiff belonged to Prem Shanker while the house of the defendant belonged to Sada Shanker who were members of the same family. On the death of Prem Shanker his daughter Mst. Naraini, the mother of the plaintiff, inherited the house and after her death, the plaintiff inherited it. Mst. Shiv Pyari became the owner of the other house as Sada Shanker gifted the same to her. Mst. Naraini, the mother of the plaintiff filed a suit for possession of the house now belonging to Mst. Shiv Pyari defendant claiming to be the owner thereof. The date of the filing of the suit is not on record, but the Chief Court of the former Jodhpur State finally decided it on appeal on 5th April, 1944. It was held by the said Chief Court that Mst. Naraini had no right or title to that house. The suit out of which this appeal has arisen, was instituted on 6th September, 1956, within 20 years of the filing of the suit by Mst. Naraini for possession of the house. The contention of the learned counsel for the appellants is that as Mst. Naraini had claimed to be the owner of the disputed Chabutra and the staircase within 20th years of the filing of the present suit, she cannot be said to have acquired right of easement by prescription, even though Mst. Naraini and her daughter might have been using the same as a way to their house. It is contended that a person can claim right of way only when he has enjoyed the same as an easement for all the period of 20 years, that is, during all this period he must have had the animus to enjoy the other property as an easement, and unless he has such animus, he cannot be said to have acquired any right of easement. The reply to this argument by the learned counsel for the respondent is that in the matter of acquisition of right of way, the court has only to see that the person acquiring right of way has been using the other land on which such right is being acquired for the purpose of having access to his land peaceably, openly and without interruption and his animus in the exercise of such right does not come in the picture. Before analysing the decision of the various High Courts bearing on this subject, it would be proper to deal with the statutory provisions of law regarding the acquisition of the right of easement. The material part of sec. 15 of the Indian Easements Act so far as it relates to right of way runs, as follows: ". . . Where a right of way has been peaceably and openly enjoyed by any person claiming title. . . . . . thereto, as an easement, as of right, without interruption, and for 20 years, the right to such easement, shall be absolute. . . . . . . " Sec. 4 of the Easements Act defines an easement, as follows: "an easement is a right which the owner or occupier of 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 something being done, in or upon, or in respect of certain other land not his own. " "the land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof, the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof,the servient owner. Explanation - In the first and second clauses of this section, the expression 'land' includes also things permanently attached to the earth: the expression "beneficial enjoyment" includes possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon. " The view which maintains that animus of the person acquiring easement is to be considered lays emphasis on the words "as an easement" used in the definition of easement given in sec. 15 read with sec. 4. Support is also drawn for this view from certain observations of their Lordships of the Privy Council in Attorney General of Southern Nigeria vs. John Holt and Company (Liverpool) Ltd. &c. (1 ). In the first place, I may humbly point out, it would not be proper to import the definition of sec. 4 while considering sec. 15. Sec. 15 deals with the acquisition of the. right of easement by prescription. Sec. 15 says that if certain conditions are fulfilled, the right of way becomes absolute. Sec. 4 defines easement as a perfected right i. e. when a particular right has become absolute. The definition of easement in sec. 4 speaks of a right which the owner or occupier of a certain land possesses for the beneficial enjoyment of that land (in presenti) and for continuing to do something (in future) in or upon in respect of certain other land not his own. This section speaks of the existence of the right of easement for the beneficial enjoyment of the dominant heritage on the other land on which the liability is imposed which is called the servient heritage. The definition of easement in sec. 4 therefore clearly contemplates the perfected easement and not an easement, if it can be so called, in the process of acquisition. Sec. 15 deals with the acquisition of the right of easement by prescription. Till the easement becomes absolute under sec. 15, it cannot be an easement as defined under sec. 4, though the word 'easement' finds place in sec. 15. It therefore, follows that the definition of easement in sec. 4 does not fit exactly in the expression "as an easement" used in sec. 15. Nonetheless, it may be conceded that the expression "as an easement" used in sec. 15 means a limited use by an occupier, or owner of one land, in or upon certain other land, not his own, in the manner provided in that section. A person acquiring right of easement u/s. 15 must be doing something in the manner provided in sec. 15 in or upon, or in respect of certain other land, not his own for the requisite period of 20 years. Thus, in order that a person may acquire any right of easement, there must be user of another person's land. It must be open, notorious, un-interrupted and adverse use of land of the other person under a claim of right. In a nutshell, it should be limited adverse use by the owner or occupier of one land, in or upon certain other land, not his own, and of another person for the beneficial enjoyment of his own land. In Halsbury's Laws of England, Third Edition, Vol. 12, (Para 1209, - p. 558) the nature of user, of an owner, occupier of another man's land has been mentioned, as follows : "with regard to all easements except the easement of light, the user contemplated by the statute is user sufficient to indicate, during the whole of the statutory period (and whether acts of user be proved in each year or not), to a reasonable person in possession of the servient tenement the fact that a continuous right to enjoyment is being asserted and ought to be resisted, if that right is not to be recognised, and if resistance to it is intended, and no user can be sufficient which does not raise a reasonable inference of continuous enjoyment. " The same principle has been stated in Arts. 457-58 in the Re-instatement of the Law - (Property Servitudes), Vol. 5 (1944 Edn.) of the American Law Institute Publishers St. Paul (pages 2923-24) - ''457. Creation of Easements by prescription.- An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is : (a) adverse, and (b) for the period of prescription, continuous and un-interrupted. 458. Adverse use - A use of land is adverse to the owner of an interest in land which is or may become nessessary when it is, (a) not made in subordinate to him, and (b) wrongful, or may be made by him wrongful, as to him, and (c) open and notorious. " Sec. 15 of the Easements Act which lays down the law for India is based on the same principles. Limited use of another man's land being the essence of acquisition of the right of easement, the case in which a person acquiring easement is in the exclusive possession of the land of other presents certain problems which shall presently be considered. It may, however, be stated that the owner of one land cannot acquire easement if he is the owner of another land on which he seeks to acquire easement. Unity of ownership is thus destructive to the acquisition of the right of easement but the same cannot be said of a person who is making an un-founded claim on another land if as a matter of fact he is making only a limited use of the other land. Again if the owner or occupier of one land is in fact occupying the other land exclusively and there is unity of possession, easement is extinguished, except under some exceptional circumstances. So also, if there is unity of possession, there can be no acquisition of the right of easement, except in some exceptional cases. In cases where the person has exclusive possession of another land over which he seeks to acquire easement, prima facie the physical acts which he is doing on the land of the other will be referred to his exclusive possession, unless there is strong evidence that the animus was only to acquire an easement. For the sake of clarity, let us take certain illustrations. A has a tenement X adjacent to which is the tenement Y of which the owner is B. For having access to X, A had been exercising his right of way over Y which is in possession of B for the requisite period of limitation. Now it is clear that A will acquire the right of easement over Y. In the above illustration, even if A considers himself to be the owner of tenement Y during all the period, still he shall acquire the right of easement. The following passage from Gale on Easement, 13th Edition p. 162 points out that there is controversy in England on the point when easement is acquired by a person under a mistaken belief of his right. "4. Enjoyment under a mistake.- The authorities under a mistake of a right claimed as an easement are consistent. Where enjoyment takes place under a mistaken view of their rights entertained by both the dominant and servient owners, it seems that there is no enjoyment "as of right" upon which a prescriptive easement can be claimed. Thus, where Blackacre was demised to a tenant who during the lease made and enjoyed watercourse on Blackacre for the benefit of an adjoining property of his own, the enjoyment being of a kind which the court assumed was not authorised by the lease, but both landlord and tenant being under the mis-taken belief that it was so authorised, the Court of Appeal held that there was no enjoyment as of right. Similarly it has been laid down that enjoyment must be attributed to the right claimed by the dominant owner and to no other. If the enjoyment originated in mistake and the dominant owner asserted his right to be grounded on some document which did not support it then, however adversely the right may have been exercised, it cannot for the purposes of presumption be referred to any other ground than that which the dominant owner insisted on at the time. On the other hand, a different view seems to have been taken by the court in some decisions as to profits a prendre. Thus, where A owning a tenement, claimed as appurtenant thereto the right to cut litter in a forest on the ground of more than sixty years' enjoyment, the Court of Appeal held that there had been enjoyment as of right, although A had claimed to do the acts of enjoyment under the mistaken supposition that they were justified by an old decree which in the court's view did not confer the right. The nature of the claim made by the dominant owner when doing the acts of enjoyment was said to be immaterial. " In my humble opinion the last view sums up the law in India in a case in which the person acquiring easement is not in exclusive possession of the other land. If a person under a mistaken belief that he has a higher right of ownership over the land of the other which he has in fact not got, has been doing for the requisite period of 20 years something which is otherwise sufficient for the acquisition of the right of easement, he must be deemed to have acquired such right notwithstanding the fact that in his mind whatever he is doing, he is doing in the belief that he is the owner of the other land though it turns out that he is not the owner of that other land. In my humble opinion if the physical acts committed by him are such as entitled him to acquire the right of easement, the mere fact that he has performed such acts with the consciousness that the other land belonged to him and not to the other person should not operate against him in the matter of acquisition of easement. The case may be different when the physical acts are not being done as of right, for example, what was being done, was being done by virtue of a licence. In such a case, he cannot acquire the right of easement because his acts are performed not as of right but because of permission granted to him by the owner of the other land. It is essential that continued user by a person must be in his own right otherwise he cannot acquire easement in spite of the fact that all along he is doing physical acts entitling him to acquire easement. But this is a different aspect of the matter which need not be discussed at length here. In the above illustration, let us take it that A has filed a suit for possession of Y on the basis of ownership and has failed. Can he not subsequently show that he had acquired the right of easement by doing the act as of right though all along he had been under a mistaken belief that he was the owner of the tenement Y? I do not find that there is any insurmountable difficulty in holding in his favour on this point.
(3.) LET us slightly change the facts of the above illustration. LET us take it that A has acquired possession of the tenement Y during the statutory period provided for acquisition of the right of easement. As soon as he acquires possession of the tenement Y, the process of acquisition of easement stops because henceforth the acts of his passing over the land will be referable to his possession of tenement Y except under special circumstances. He is no more making limited use of tenement Y. He is using it as any other property in his possession. A cannot succeed in such a case when he puts forward a claim that he has acquired easement unless he shows that all along he had the animus to acquire right of easement. Having clarified the position so far, let us now turn to the case law on this subject. The following passage from the judgment of their Lordships of the Privy Council in Attorney General of Southern Nigeria (1) is often relied upon for deducing the principle that animus is material under all circumstances: "it seems to be undoubtedly true that what was done by the respondents was done by them as in their opinion their own lands There was much in the nature of affairs and the legal situation to induce this opinion, and it is not to be wondered at that not only they, but all parties on the island, appear to have considered these operations, which were clearly beneficial to the general interest, in no way to be of the nature of wilful appropriation or of trespass, but merely of making good and proper use of their rights as owners of property abutting upon the sea. An easement, however, is constituted over a servient tenement in favour of a dominant tenement. In substance the owner of the dominant tenement throughout admits that the property is in another, and that the right being built up or asserted is the right over the property of that other. In the present case this was not so. " The aforesaid observations must be read in the context in which they are made. The, facts of that case and the principle of law on which the observation are based and summed up by Upjohn, J. in Copeland vs. Greenhalf (2), as follows "that is a complicated case. The respondents were the owners of certain lands in Lagos. Works of reclamation were carried out so that further land adjoining the original land was added thereto, but, it being the result, as I read the case of artificial reclamation, the reclaimed land vested in the Crown and did not accrue to the respondents. The respondents did certain things on the the reclaimed land, such as building walls and jetties and depositing certain casks and other articles on it, and it was found as a fact that they have exclusive possession of the reclaimed land. The Judge of first instance, Osborne, C. J. , found that they occupied the reclaimed land under an irrevocable licence from the Crown which was to be presumed from their acts and the acquiescence of the Crown in those acts over many years. On appeal, the case went to the Full Court and they decided that that was not the right view to take, but that the respondents had an easement over the reclaimed land. Before the Judicial Committee of the Privy Council the judgment of the Court of Appeal was reversed on the simple ground that you cannot have an easement over land of which you are in exclusive possession. " The observations of their Lordships of the Privy Council were thus made in a case in which the person claiming to acquire right of easement was in exclusive possession of the land over which he claims such right of easement. There are numerous cases of the Indian High Courts on this subject which take divergent views in the matter and I content myself by referring to some of them. In Chunnilal Fulchand vs. Mangaldas Goverdhandas (3), the plaintiffs instituted the suit against the defendant for a perpetual injunction restraining the latter from obstructing in making a new kothi (cistern) and a gutter, and in repairing their nul (waterpipe ). The plaintiffs alleged that at the rear of their house there was a piece of ground which belonged to them and which was in their possession and that the defendant having deprived them of possession thereof, they had filed the suit against him which was decided against them; that on this piece of ground there existed a nul kothi and gutter for more than twenty years and that the defendant broke them down, and was fined by the Magistrate for doing so, and that he would not allow the plaintiffs to repair and reconstruct them, and hence the suit. It was held by the Division Bench that from the case it was plain from the case of the plaintiff made in the earlier suit that he never claimed the right to use the nul gutter and kothi as an easement but by the right of ownership of the land itself and therefore the lower court was right in holding that no easement was acquired under sec. 26 of Limitation Act. During the course of arguments, learned counsel for the plaintiffs had contended that supposing that the plaintiffs had been enjoying the right as an easement for a long time and they bring a suit claiming much larger right such as the possession of property itself and fail there, still their claim to the larger right cannot extinguish the right of easement. But this argument seems not to have been accepted by the Division Bench. The Madras High Court in Konda Reddi vs. Ramaswami Reddi (4) referred to the Bombay case (3), and observed that if it was meant to lay down that assertion of ownership during the period of user could make the acquisition of an easement right impossible, then the Court was unable to accept the view. Their Lordships of the Madras High Court stated the law thus: "the mere claim of the higher right of ownership would not prevent a person from acquiring a lesser right of easement, provided he could show that he asserted certain rights of enjoyment over the land in question for the benefit of another land belonging to him. " I am in respectful agreement with the above view at least in a case in which the plaintiff in the previous suit had merely asserted his ownership over the other land and had not asserted that he was in exclusive possession thereof. Konda Reddi's case (4) was considered by the Full Bench of the Madras High Court in (Pannala) Subba Rao vs. (Parupudi) Lakshmana Rao (5), and the relevant part of the decision is, as follows "the learned Judges in Konda vs. Ramaswami (1) (AIR. 1916 Madras 718) seem to imply that the assertion of ownership during the period of user is not fatal to the success of a claim to an easement. To this proposition we cannot assent. 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 in one which the Court must answer, and if Koma vs. Ramaswami (l) (AIR 1916 Mad. 718) implies the contrary we think it is wrongly decided. We agree with the conclusion of Sherman, J. in Lyell vs. Lord Hothfield (7) - 1914 3 K. B. 911 that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement. " The aforesaid observations only point out that the question of quo animo egerit to what purported character are the acts of user to be ascribed is to be determined. But such determination may present some difficulty in a case in which the person acquiring easement is in exclusive possession of the other land and not in a case in which the other person is only doing physical acts which entitle him to the right of easement on the other land but is not in exclusive possession thereof and is merely making an un-founded claim of ownership. ;