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17. The defendant has filed this second appeal against the decree of the lower appellate Court, and it is contended on his behalf that the lower Courts were wrong in following the two decisions of this Court in Rau Rama v. Tukaram nana and Tamanbhat v. Krishnacharya, because the learned Judges below only relied on certain observations in the nature of obiter dicta which were not necessary for the purpose of the actual decision. On the other hand the decision in Chunilal Fulchand v. Mangaldas Goverdhmdas, which was followed in Marghabhai v. Motibhai Mithabhai, established the proposition that a person claiming the rights as an easement must be conscious of the fact that the property over which he was exercising the rights was not his own and that it belonged to another person; and, as the plaintiff in this case had asserted his own right of ownership over the terrace in the previous litigation for the statutory period, he cannot be held to have acquired them by way of easement. It is also contended that the decisions of the other High Courts, namely, Madras, Allahabad, Rangoon and Nagpur, as well as the Chief Court of Karachi, have also taken the same line as the decision of our Court in Chunilal v. Mangaldas Govardhandas and that we should follow those decisions rather than the observations in Rau Rama v. Tukaram Nona. Chunilal Fulchand v. Mangaldas Govardhandas is the earliest decision of our High Court on this point and, although that case was not governed by Section 15 of the Indian Easements Act, 1882, but by Section 26 of the Indian Limitation Act of 1877, the provisions of both the sections so far as they bear on this point are the same. In that case it was held that in order to acquire an easement under Section 26 of the Indian Limitation Act, the enjoyment must have been by a person claiming title thereto as an easement as of right for twenty years, Evidence of immemorial user adduced in support of a right founded on ownership, does not, when that right is negatived, tend to establish an easement. The plaintiff had in that case also claimed the ownership of the land, for which the easement was claimed, in a previous suit, and it was observed that from the case the plaintiff had made in his previous suit that he never claimed the right to use the nul, gutter and kothi as an easement, but by right of ownership of the land itself, the lower Court of appeal was right in holding that his claim to an easement failed in so far as it was based on Section 26 of the Indian Limitation Act. That decision was followed in Marghabhai v. Motibhai Mithabhai. Mr. Justice Baker sitting singly held that no claim of easement can be made with reference to the land over which a person claimed ownership or which belonged jointly to him along with others. Hie followed the decision in Chunilal Fulchand v. Mangaldas Govardhandas and also a full bench decision of the Madras High Court in Subba Ran v. Lakshmana Rao (1925) I.L.R. 49 Mad. 820. He also referred to two English cases on that point, namely, Attorney General of Southern Nigeria v. John Holt and Company (Liverpool), Limited [1915] A.C. 599 and Lyell v. Hothfield (Lord) [1914] 3 K.B. 911. In the opinion of the learned judge the English law was the same as that was adopted in the two Indian decisions in Chunilal Fulchand v. Mangaldas Govardhands and Subba Rao v. Lakshmana Rao and that, therefore, a party who claims a right of easement cannot succeed unless he established that he had consciousness of the knowledge that property over which he was claiming easement did not belong to him. In Tamanbhat v. Krishnacharya, it was held that where one of the issues on which the parties go to trial is an issue of easement, the mere fact that the defendants claim in their pleading ownership of the land does not affect the suit. In that case there was no previous litigation in which ownership was pleaded by the party claiming easement in the subsequent suit but there were inconsistent and alternate pleadings in the same suit, and it was held that it was open to a party to put up inconsistent defences. Beaumont C. J. who decided that case was of the opinion that certain observations made by Baker J. in Marghabhai v. Motibhai Mithabhai went too far inasmuch as it was stated that there must be consciousness on the part of the person who claims as an easement that all along he was claiming the right treating the property as belonging to somebody else. The same criticism was repeated by Beaumont C. J. in Rau Rama v. Tukaram Nona. In that case there was no previous litigation but there was an alternative inconsistent defence of ownership and easement. The plea of ownership was not pressed at the time of framing issues and therefore there was no issue about ownership. The only issue framed was about the right of easement. The learned Chief Justice held, as he did in the previous case of Tamanbhat v. Krishnacharya, that it was open to a party to raise inconsistent pleas in the alternative and that the suit should not be dismissed on that account. In doing so, however, he again repeated the criticism of Morghabai v. Motibhai Mithabhai and observed (p. 142):

All these observations were not necessary for the purpose of the decision in that case. Even so, they do not, in my view, amount to a definite opinion that in no case can an assertion of ownership over a property during the prescriptive period prevent the acquisition of easement rights over the said property. In my judgment the authority of Chunilal Fulchand v. Mangaldas Govardkandas is not shaken by any subsequent authority of this Court.

18. 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, dearly 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 therefrom 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 right as an easement under Section15 of the Indian Easements Act. 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 cases 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 not merely untenable but known to be false and inconsistent with his conduct. Where there is no such assertion in a previous litigation but alternative pleas of ownership and easement are taken in the same suit, the election to prove one of the two alternative pleas may be made when evidence is to be led or even after the evidence is over. The party may contend that though the evidence is not satisfactory to establish ownership, it is sufficient to prove the right of easement. In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else's property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man's property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right.

19. Mr. Thakore has relied on the decision of this Court in Dharamdas Kaushalyadas v. Ranchhodji Dayabhai (1921) I.L.R. 46 Bom. 200: s.c. 23 Bom. L.R. 1009 where there was observation by Sir Norman Macleod C. J. as follows (p. 203):

Whether in previous years they merely exercised rights of way over that strip against the true owner, or did so because they thought it had belonged to their ancestors, it does not seem to me to make very much difference.

This however does not support the contention urged by Mr. Thakore that the question of consciousness, or animus as he calls it, is entirely irrelevant. All that is observed is that in appreciating the evidence it does not make much difference. The Court was only concerned with the question as to whether a person can assert a right which was inconsistent with the right alleged in the previous litigation. Inconsistent pleas were raised in the alternative in the written statement. It appears, however, as observed by Shah J. that at the time when the issues were framed the question of ownership was given up, and the only issue framed was about the right of easement. The same appears to be the case in Rau Rama v. Tukaram Nona. It is certainly open to a party to raise inconsistent defences in the alternative, but at the time when evidence is led he has got to elect as to which of the two alternative inconsistent defences he is going to prove. If he relies on the plea of ownership and leads evidence on that point and fails in doing so, and if he thereafter relies on the same evidence for easement rights, he will be met with a serious difficulty in establishing a claim of easement because of the plea of ownership for which he led evidence and failed. However it does not necessarily follow that, if a person makes inconsistent pleas he should not be allowed to lead evidence on those pleas. A party, if he chooses, is entitled to lead evidence on both the alternative pleas; and it is for the Court to decide whether he is entitled to succeed on either of the pleas. Certainly he cannot succeed on both.