GANGA RAM Vs. TRIBENI RAI

JUDGEMENT

(1.) THIS is plaintiffs' appeal arising out of a suit1 for manda tory injunction to direct the defendants to close the opening shown by letters in the site plan given at the foot of the plaint. The plaintiffs alleged that in the wall CD the defendants forcibly made an opening measuring 3' x 3' on 16th July 1961 as a result of which the latrine and Angan of the plaintiffs' house were visible and the privacy of the plaintiffs were Interfered with. They also alleged that purdah system was observed in their family and the alleged opening greatly interfered with that system. Con sequently they asked the defendants to close the opening but they paid no heed hence the suit Was filed for the afore said reliefs. The defendants resisted the suit on a number of grounds. They allied. That the opening was not .new. and that the plaintiffs did not have. any" right of privacy nor that right was in terfered with. They further alleged that they had acquired a right of easement of light and air through the disputed window. They asserted that .38 the old window had been damaged on account of rains they wanted to replace the same. Plea of limitation was also raised.

(2.) THE trial court dismissed the suit. The appeal preferred by the plain tiffs was also dismissed. They have now come to this Court in second appeal.

(3.) IT was next urged that the defendants failed to establish that they had enjoyed access and use of light and air through the said opening as of right, hence the alleged easement had not be come absolute and indefeasible and the plaintiffs were entitled to get the dis puted opening closed. Section 26 of the Indian Limitation Act of 1908 which corresponds .to Section';.25 of- the.- 'Limitation Act of 1963r provides that "where: the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement and as of right without interruption and for 20 years.- the right, of such access and use of light or air shall be absolute and indefeasible. In order to make such a right absolute and indefeasible, it is ne cessary to establish that the access and use of light had been enjoyed also as of right. The words, 'as of right' mean "without permission or favour." The user as of right, therefore, connotes a user in the assertion of right as against all persons and would not mean .a right ac quired through a grant or permission from the servant owner. A permissive user is not a user as of right but it is an enjoyment in such a manner as not to in volve the admission of obstructive right in the owner of the servant tenement. Whether a user was as of right or not has therefore, to be decided on the basis of the surrounding circumstances and the facts established in the case. If long open user is established a presump tion can legitimately be drawn, in the; absence of other circumstances, that it has been as of right. Obviously the party claiming the easement has to establish that the user is as of right. If the enjoyment has not been made secret ly or stealthily or by tacit sufferance or by leave or favour or by license, but has been made openly and notoriously, it would be an enjoyment as of right. There is ample authority for the pro position that it is for the party oppos ing the claim of easement to show that user was on license or by fraud, force or secrecy. The relationship between the parties and the circumstances under which the user has taken place would also be relevant factors for consideration in this behalf.