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".........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."

13. Several other High Courts have also taken a similar view. We need nol refer to those decisions in view of the Supreme Court decision in Chapsibhat Dhanjibbai Dand v. Purushottam, AIR 1971 SC 1879. At page 1886, it is observed:

"........In Raychand v. Manilal, ILR (1946) Bom 184 = (AIR 1946 Bom 266) (FB), it was held that an easement by prescription under Sections 12, and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such conciousness is proved he cannot establish a prescriptive acquisi tion of the right. Therefore, if the owner of a dominant tenement has, during the period of prescription exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in his claim for an easement ' As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an ease ment by prescription. To prove the latter, it is necessary to establish that it was exercised on someone else's property and not as an incident of his own owner ship of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement."

15. As stated even by the Bombay High Court in the aforesaid Full Bench decision, inconsistent pleadings can be taken. Our learned Brother A. D. Desai, J., has held that plaint in the moffusil should be construed liberally, and on perusing paras 5 and 6 of the plaint, he has reached the conclusion that there was such implicit pleading regarding the right of easement claimed on the basis of immemorial user. It is, therefore, not open to us in this second appeal to take any contrary view in that behalf. We, therefore, assume that such a right has been pleaded. Such alternative inconsistent pleas can be taken. But the question is, whether such a claim is proved. For the proof of it, requisite animus is a necessary ingredient. The learned appellate Judge has stated that even in the evidence, plaintiff has claimed ownership over the suit Chhindi. It is significant to note that he has nowhere 4ated any facts which would show that he acknowledged the ownership of deceased defendant over the suit Chhindi. On the contrary, he asserted his ownership over the suit Chhindi even in his evidence . It is, therefore, difficult, in the circumstances of the case and on the evidence led in the instant case, to reach the conclusion that there was requisite animus which is a necessary ingredient for the proof of the claim in question.