RAM PRATAP Vs. KASHI PRASAD

JUDGEMENT

(1.) THIS second appeal arises out of the judgment and decree dt. 17-1-1978 passed by the District- Judge, Gonda whereby he dismissed the defendants' appeal and confirmed the decree of the trial court which had decreed the plaintiffs' suit for injunction restraining the defendants from disturbing in their user of the lane shown by letters A B C D in the plan given at the foot of the plaint. It will appear that the plaintiff-respondents claimed themselves to be owners of a house which they had got in partition against the defendant-appellants some thirty five years back. It was alleged that they had reconstructed their house about thirty years back and made it pucca. From the northern roofs water was being discharged towards north through four Parnalas on four cubits wide strip of land belonging to the plaintiffs which they had left as a Gali for their user. Other acts of user pleaded were that they used to pass through that lane and also used the same for purposes of white washing and repair of their house from the northern side. The defendants were said to be obstructing their user by raising a wall on the western extremity which would prevent the water from the lane flowing towards west and would also interfere with the plaintiffs' rights over the land. It was on these allegations that a perpetual injunction restraining the defendants from interfering with the plaintiffs possession over the land shown by letters A B C D in red colour in the site plan was sought. The claim was resisted by the defendants on the ground that the land in question did not belong to the plaintiffs and that the water was not being discharged over that land and that it flowed towards east. They also pleaded that the land in question was their Sehan land over which they has been exercising their rights since long and had been using the same for ingrede and egreess and after the Zamindari Abolition they became owners of the said Sehan land. The trial court framed issue on the point as to whether the plaintiffs had an easementary right in respect of the land in suit. Another issue framed was with respect to the plaintiffs' right to repair and white-wash their wall from the land in suit and to flow water from the Parnalas over that land. Yet another issue was regarding the plaintiffs' right of passage over the land and the bar of limitation was also pleaded by the defendants. There was, however, no issue on the point of ownership of the land as claimed by the plaintiffs. The findings recorded were that the plaintiffs had got a right of easement to flow water over the disputed land and also a right of ingrees and egrees over it. The suit was accordingly decreed. The defendants preferred an appeal against the judgment and decree but the same was also dismissed. Feeling aggrieved they have preferred this second appeal and it has been contended that the courts below have carved out a new case which was never set up by the plaintiff-respondents and that in a claim based on owner-shiping of the land it could not be said that the plaintiffs had acquired a right of easement because that plea presupposes that ownership of the land would vest in some person other than the plaintiffs. I have heard the learned counsel for the parties at some length and have gone through the record.

(2.) LEARNED counsel for the appellants had placed reliance on the allegations made in the plaint which clearly show that the plaintiffs claimed to be owners of the disputed land which was four cubits wide through in east-west direction lying towards "the north of their house. They have termed this land as Gali left by them over their own land, and on which they claimed to have been flowing water from their Parnalas. Nowhere in the plaint has it been said that the land belongs to the defendants and that the plaintiffs had been using the same for the discharging of water as of rights and as of easement for over twenty years. Simply by pleading that they had been discharging water from the Parnalas for over thirty years and at the same time stating that the land in question over which water was being discharged belonged to them and it was left by them as their Gali, it could not be said that the claim was based on a right of easement. Observations of the appellate court that right of easement was claimed in alternative contrary to facts. LEARNED Counsel for the appellants had placed reliance on Lalit Kishore v. Ram Prasad, 1943 AWR 233. The decision clearly supports the contention that a right of easement could not be granted to the plaintiff if the plaintiff claimed the land over which he claimed a right as belonging to him. The question of animus was a question of fact. A person claiming to be owner of a land had the animus of an owner and not the animus of a person exercising a right of easement over the land of another. Although a right of easement could be claimed in the alternative if the plaintiff primarily claimed to be owner also and in the alternative pleaded that in case he was not proved to be owner of the land and the defendant was held to be owner thereof then in that event a right of easement might be granted to him as he had been flowing water and doing other acts as of easement. The observations in the aforesaid case will also support this contention. LEARNED counsel for the respondents has relied upon Mahesh Pratap Singh v. Ram Pal Singh, AIR 1953 All. 591 but that again is an authority on the point that such a plea in the alternative could be taken if the circumstances so justified. But the facts remains that such a plea be taken and in its absence a person claiming right of ownership over a land could not be granted a right of easement over the same. LEARNED counsel for the parties have frankly conceded that an issue on the point of ownership was necessary to be struck in the case because primarily the plaintiffs claimed to be owners of the land in dispute left by them as a lane. Even the relief claimed indicated that the plaintiffs wanted ft decree for perpetual injunction restraining the defendants from taking possession over and including the land ABCD which was the plaintiffs Gali into their own house. Thus even in the relief the plaintiffs were claiming the Gali, in question to be their own. The case therefore, deserves to be remanded with a direction that an issue on the point of ownership claimed by plaintiffs may be framed and opportunity given to the parties to adduce evidence on the point. A temporary injunction had already been issued during the pendency of the case and thereafter the plaintiffs succeeded in both the courts, it would therefore be appropriate to direct that status quo as it existed during the pendency of the suit in the court below shall be maintained and no interference shall be caused in the plaintiffs' rights of flowing water and otherwise using the land during the pendency of the case. The appeal is accordingly allowed and the judgment and decree passed by the courts below are set aside. The case is remanded to the Court of Munsif Gonda with the direction to readmit it to its original number and dispose of the same in the light of the observations made in the body of this judgment. Costs of this appeal shall abide the event.