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8. We first propose to refer to the question of law arising in this appeal as the matter has been referred by the larned single Judge to the larger Bench. Probably, it must have been referred to a larger Bench in view of the contrary view having been taken by a single Judge of the Rajasthan High Court in Shiwpyari v. Mst. Sardari, AIR 1966 Raj 265. Bhandari, J., has observed.

"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. 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 would 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.

In para 25, he has observed:

"In my humble opinion, if in the previous suit iiled 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." With respect, we may say that the reasoning adopted by Bhandari, J., does not appear to us to be quite sound.

".........In my judgment the authority of Chunilal Fulchand v. Mangaldas Goverdhandas, (1892) ILR 16 Born 592 is not shaken by any subsequent authority of this Court.

It is not necessary to enter into an elaborate enquiry as to whether the law which is laid down in Sections 4 and 15 of the Indian Easements Act was based upon English Common law or upon the English Prescription Act. For the purpose of this case we have to construe Sections 4 and 15 of the Indian Easements Act. section 4 says, among other things, that 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 something, or to prevent something being done upon certain other land not of his own. So that it is necessary that the right must be exercised upon a land which does not belong to the person who is exercising that right, and section 15, which deals with the acquisition of that right, clearly says that the right must be exercised among other things as an easement. In considering this question it is necessary to keep in mind the distinction between a rule of pleading and a rule of proof. That inconsistent pleadings can be pleaded in the alternative is a well established rule of pleading, but the proof of a plea depends on the provisions of substantive law. Therefore, although it is permissible to plead inconsistent, defences in the alternative, such as right of ownership and right of easement, it does not necessarily follow there from that when a person has unsuccessfully pleaded his right of ownership of property in a previous litigation he can in a subsequent suit succeed by merely proving enjoyment of a certain right over the property for the statutory period without also proving the enjoyment of that as an easement under section 15 of the Indian Easements Act."

Weston, J., has very succinctly dealt with this question. He observes:

"The question which arises for our consideration may, I think, be put in these terms:- 'Whether a person can be said to establish a right of easement, when it is shown that during part of the prescriptive period this person has exercised the right he now claims as easement, not as a right over the property of another, but as a right over property which at the time he considered to belong to himself?' On the authority of the decisions of this Court and other High Courts, this question would have to be answered in the negative. The observations of the late Chief Justice (Beaumont C. J.) in the two Bombay cases do, however, suggest that the consciousness during the period of prescription on the part of the person claiming the easement that the property over which he claims the easement is the property of another, and not of himself, is entirely irrelevant. The cases of the other High Courts, which have been set out by my brother Divatia, to one of which, Khanchand Jethamal v. Narandas Pahlajrai, ILR (1939) Kar 307 = (AIR 1939 Sind 110) 7 was a party, proceed, except Chunilal. Fulchand v. Mangaldas Goverdhandas, (1892) ILR 16 Bom 592, which was a case under the Limitation Act, on the wording of Sections 4 and 15 of the Indian Easements Act, and upon observations in certain English cases, particularly the observations of the Privy Council in Attorney General of Southern Nigeria V. John Holt and Co. (Liverpool), Limited. AIR 1915 PC 131. The important words in the Sections 4 and 15 of the Indian Easements Act are the words in section 15 'as an easement,' and that these words should be taken to mean that the person exercising those acts must do so with the consciousness that he is not the owner received substantial support from the observations of their Lordships of the Privy Council in the case referred to above, These are (p. 618):