Rajasthan High Court - Jaipur
Shivpyari And Anr. vs Mst. Sardari on 11 November, 1965
JUDGMENT D.M. Bhandari, J.
1. This Civil Second Appeal by the defendant arises under the following circumstances:
2. Two houses adjacent to each other at shown in plan (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 this 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 use 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 or 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 plaintiffs claim holding that the plaintiff had acquired the right of easement by prescription over the 'chabutra' ABCD and the staircase. This decree was maintained in first appeal by the defendants. Hence this Second Appeal on behalf of the defendants.
3. 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 Shankar 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.
4. The contention of the learned counsel for the appellants is that as Mst. Naraini had claimed to be tie owner of the disputed chabutra and the staircase within 20 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 an 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, open and without interruption and his animus in the exercise of such right does not come in the picture.
5. 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 Section 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 tide thereto, as an easement, as of right, without interruption, and for 20 years, the right to such ...... easement, shall be absolute...."
Section 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 "
6. 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 Section 15 read with Section 4. Support is also drawn for this view from certain observations of their Lordships of the Privy Council in Attorney General of Southern Nigeria v. John Holt and Co. (Liverpool) Ltd., AIR 1915 PC 131.
7. In the first place, I may humbly point out, it would not be proper to import the definition of Section 4 while considering Section 15. Section 15 deals with the acquisition of the right of easement by prescription. Section 15 says that if certain conditions are fulfilled, the right of way becomes absolute. Section 4, defines easement as a perfected right i.e. when a particular right has become absolute. The definition of easement in Section 4 speaks of a right which the owner or occupier of a certain land possesses for the beneficial enjoyment of that land (in praesenti) 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 Section 4 therefore clearly contemplates the perfected easement and not an easement, if it can be so called, in the process of acquisition. Section 15 deals with the acquisition of the right of easement by prescription. Till the easement becomes absolute under Section 15, it cannot be an easement as defined under Section 4, though the word 'easement' finds place in Section 15. If, therefore, follows that the definition of easement in Section 4 does not fit exactly in the expression "as an easement" used in Section 15.
8. Nonetheless, it may be conceded that the expression "as an easement" used in Section 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 under Section 15 must be doing something in the manner provided in Section 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, uninterrupted 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.
9. In Halsbury's Laws of England, Third Edition, Volume 12, (Para 1209 Page 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."
10. The same principle has been stated in Articles 457-58 in the Re-statement 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 uninterrupted.
458. Adverse use A use of land is adverse to the owner of an interest in land which is or may become possessory 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."
11. Section 15 of the Easements Act which lays down the law for India is based on the same principles.
12. 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 unfounded 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.
13. 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 R, For having access to X, A had been exercising his right of way over Y which is 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 over Y, There is nothing in Section 15 which in any way impedes A from acquiring the right of easement. The following passage on 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 a 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 mistaken 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 to entitle 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 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.
14. 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 or 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.
15. 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, AIR 1915 PC 131 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 upon 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."
16. 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 observations are based are summed up by Upjohn J. in Copeland v. Greenhalf, 1952-1 All ER 809 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 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 had 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.
17. 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 Chunilal Fulchand v. Mangaldas Goverdhandas, (1892) ILR 16 Bom 592 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 & gutter for more than twenty years & that the defendant broke them down, & was fined by the Magistrate for doing so & that he would not allow the plaintiffs to repair & 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 sue 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 Section 26 of the Limitation Act.
18. 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.
19. The Madras High Court in Konda Reddi v. Ramaswami Reddi AIR 1916 Mad 718 referred to the Bombay case, 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, AIR 1916 Mad 718 was considered by the Full Bench of the Madras High Court in Subba Rao v. Lakshmana Rao, AIR 1926 Mad 728, and the relevant part of the decision is as follows:
"The learned Judges in AIR 1916 Mad 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 AIR 1916 Mad 718 implies the contrary we think it is wrongly decided. We agree with the conclusion of Shearman, J. in Lyell v. Lord Hothfield, (1914) 3 KB 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 aforssaid 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 unrounded claim of ownership,
20. The Full Bench case of the Calcutta High Court in Narendra Nath v. Abhoy Charan (1907) ILR 34 Cal 51 (FB) was a case of a ditch which was obstructed by the defendants and the plaintiffs asked for a declaration that the ditch belonged to them, or in the alternative that they had acquired a right of easement therein for the passage of their boats. The question arose before the Full Bench, whether the suit was liable to be dismissed when the plaintiff claimed in the alternative over the same plot of land, rights of ownership and of eassment which were inconsistent with each other The Full Bench answered the question in the negative.
21. In Surendra Nath Singh v. Girdhari Singh, (1921) 62 Ind Cas 633 (Cal) the view taken in AIR 1916 Mad 718 was approved. Mookerjee J. observed that:
"This view, we think, is well founded on reason and is in accordance with the principle which underlies the decision of the Full Bench in the case of (1907) ILR 34 Cal 51 (FB).
22. After Chunilal Fulchand's case, (1892) ILR 16 Bom 592, conflicting views were expressed in the Bombay High Court. As already mentioned, Chunilal Fulchand's case (1892) ILR 16 Bom 592 laid down the proposition that a person who had made a claim on the basis of ownership cannot claim a right of easement on the same land. This view was followed in the Bombay High Court in Marghabhai Vallavbhai v. Motibhai Mithabhai, AIR 1932 Bom 513. A contrary view was expressed in Tamanbhat Shankarbhat v. Krishtacharya Tamanacharya, AIR 1933 Bom 122 and in Rau Rama Atkile v. Tukaram Nana, AIR 1939 Bom 149. In Rau Rama Atkile, AIR 1939 Bom 149, Beaumont C. J. observed as follows:
"It is not, in my judgment, the law that a person cannot acquire an easement unless during the whole prescriptive period he acts with the conscious knowledge that it is case of a dominant and servient tenement and that he is exercising a right over property which does not belong to him. It is of course perfectly true that an easement can only be claimed in respect of somebody else's property, and a man cannot claim an easement over his own property. But it is also clear that a plaintiff may claim an easement and ownership in the alternative, as was held by the Calcutta Full Bench in (1907) ILR 34 Cal 51. In my opinion, where a party shows that for the statutory period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he was consciously asserting a right to an easement. Most laymen do not know exactly what their legal rights may be. They do certain acts without formulating, even mentally, a legal claim, and in my opinion a right to an easement by prescription cannot be defeated merely by showing that during the whole or part of the period of prescription the plaintiff was not consciously claiming an easement."
The divergent opinion in the Bombay High Court led to the constitution of the Full Bench in Raychand Vanmalidas v. Maneklal Mansukhbhai, AIR 1946 Bom 266 (269-270). The view taken by Divatia J. in that case is contained in the following passage :--
"To prove that the right was exercised as an easement, it is necessary to establish that it was exercised on somebody else's property and not as an incident of his own ownership of that property. For that purpose his consciousness, that he was exercising that right on the property treating it as somebody else's property, is a necessary ingredient in proof of the establishment of that right as an easement. If a person has actually claimed ownership of the servient tenement in a previous litigation within the statutory period of twenty years, it may be regarded as an important piece of evidence to show that he did not exercise that right as an easement.
It is true that the outward indication of the exercise of the right by virtue of ownership and easement may in most oases be the same, but where there is evidence of his previous conduct of the right of ownership, it is for him to show that notwithstanding that conduct he did all the acts of enjoyment of the right as an easement. His conduct is not quite conclusive against him. At the same time it lays a heavy burden on him to prove that his assertion of ownership was merely untenable but known to be false and inconsistent with his conduct."
Sen and Weston JJ. based their decision on the Privy Council case of AIR 1915 PC 131 on the words of Section 13(4) of the Easements Act.
23. With utmost respect I may observe that while it is necessary that the right of easement must have been exercised on somebody else's land and not as an incident of the ownership of the land by title person claiming the right of easement, such ownership must be a reality and not a pretension for ownership. A person may be under a mistaken belief that he is an owner of an adjoining plot of land or he may be making an unfounded claim of ownership over it, but thereby he does not cease to acquire right of way if the physical acts which he does are sufficient in the eye of law to grant him right of way as an easement acquired by prescription. I have already pointed out that unity of possession stands on a different footing and except under exceptional circumstances, a claim for acquisition of right of easement cannot be claimed in case of unity of possession.
24. The Judicial Commissioner's Court of Nagpur in Abdul Kayum v. Mojiram, AIR 1927 Nag 334 took the view that the question of animus was material in a case in which the plaintiffs had filed an earlier suit on the basis of ownership and on the dismissal of that suit, they brought a suit claiming the right of easement This is also the view taken by the Allahabad High Court in Lalit Kishore v. Ram Prasad, AIR 1943 All 362 and Madhya Pradesh High Court in Kanyalal v. Loonkaran, AIR 1958 Madh Pra 153.
25. In my humble opinion, if in the previous suit filed by the plaintiff he did not assert that he was in possession of the land over which he is now claiming easement, his claim for acquisition of right would not be defeated merely because he had asserted earlier that he was the owner of the other land. In such a case his physical acts if they are of such a nature as entitle him to acquire the right of easement should be sufficient to grant him the right of easement irrespective of the fact that he was committing these acts considering himself as the owner of the other land. Animus is of no importance in such a case. But if the user is referable to exclusive possession which a plaintiff had claimed in the earlier suit, he cannot be deemed to acquire any right of easement except under exceptional circumstances. If in a previous suit the plaintiff alleged to be in exclusive possession of other land which allegation was found to be untrue in the previous suit, he may show that in spite of his previous allegation of possession he was in fact never in such exclusive possession and he had in fact acquired right of easement over the land.
26. In the case before me Mst. Naraini never claimed to be in exclusive possession of the other haveli in previous suit, and as such, the present claim of the plaintiff Mst. Sardari who is legal representative of Mst. Naraini cannot be defeated on the principle laid down above. I need not discuss whether the plaintiff respondent had the right of easement of necessity with respect to the disputed chabutra and staircase as I am of the opinion that she had acquired right of easement by prescription. In this view of the matter, the appeal has got no force and is dismissed with costs.