E ELUMALAICHETTY Vs. NAINA MUDALI

JUDGEMENT

(1.) The plaintiff who succeeded in the first court but failed before the lower appellate Court is the appellant in this second appeal. The plaintiff claimed a right to a 2 ft broad space, B schedule property, on the western side of his house and for an injunction restraining the defendants from taking their cattle and men through that space and for an injunction directing the defendants to remove the cement tub built at the southern end of that space which obstructs the passage and stagnates the water. The lower appellate court considered the title deeds relied upon by the plaintiff, Exs. A. 1 and A. 2. It is found that the plaintiff made no attempt to fix the boundary line of the concerned street and the Commissioner's plan. Ex.C. 2 shows that the plaintiff has constructed two platforms on the eastern side of his house; one platform is 4' broad and another platform is 3'. 6" broad and if the measurements are taken from the platforms, then the plaintiff will have no title to the disputed space, B schedule property. I cannot say that the assessment of this question by the lower appellate Court on the basis of the factual materials disclosed is preverse and requires review by this court sitting in second appeal on that ground. However, Mr. M.V. Krishnan, learned counsel for the plaintiff appellant, herein, would submit that the plaintiff must succeed at least on the basis of assessment and wants to take advantage of the substantial question of law formulated to this effect by this Court at the time of the admission of the second appeal. The conception of easementary right cannot go with the claim of title and both are contradictory to each other. A title to the property and a right of easement over it are conceptions totally distinct and contradictory to each other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of another; while a right of easement is a right in, to or over the property of another. One is a personal right while the other is annexed to and claimed over the land of another and it runs with it. A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of the other. The plaintiff having failed on the question of title specifically pleaded by him cannot turn round and ask for reliefs on the basis of easement.

(2.) This is not a case where the plaintiff raised the plea of easement in the alternative, and the plaintiff gave up his case of ownership even at the trial. The plaintiff asserted title in himself and prosecuted that case only before the courts below and he had no other alternative case of easement. To acquire easement by prescription, the user during the statutory period should have been with the animus of enjoying the easement as such in the land of another, and there must be consciousness and acceptance that the title in the land vests with the other and the plaintiff cannot assert title in the land in himself as that would militate against the very acquisition thereof. Ramanujam J. in Krishnaiar v. Perumal Nadar, (1972) 2 Mad LJ 435, dealt with a case where the plaintiff put forward a claim of title to the suit land and having failed to establish the same, sought to establish a right of easement over the same. The learned Judge repelled this move of the plaintiff and while doing so, the learned Judge took note of the following ratio of the Full Bench in Subba Rao v. Lakshman Rao, ILR (1926) 49 Mad 820 -

(3.) Further, learned counsel for the plaintiff would submit that the plaintiff must be deemed to have prescribed title to the disputed passage by adverse possession. I do not find that such a plea was specifically projected and decided by the two courts below and it is not permissible for the plaintiff to project such a plea at the second appellate stage. Learned counsel would also contend that when the first court has analysed the factual materials, the lower appellate court ought not to have upset such findings of fact. The lower appellate Court is the final court of fact and it is duty bound to analyse the evidence afresh and give its own conclusion independently. This is exactly what has happened in the present case, and I do not think any interference by this Court is warranted in second appeal. Hence this second appeal is dismissed. No costs. Appeal dismissed.