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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.

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,

"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."

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.