JEHANGIRJI JAMSHEDJI Vs. NARIMAN BURJORJI

JUDGEMENT

(1.) These are two Letters Patent appeals against the decision of Gajendragadhkar in Second Appeals Nos. 279 and 281 of 1943. The dispute in these cases relates to a right of way which the plaintiffs claim over certain lands to the east of the houses belonging to the plaintiffs and the defendants. The precise position of the houses of the plaintiffs and the defendants and of the lands over which a right of way is claimed will be found from exh. 145. The plaintiffs owned Survey Nos. 86 to 92. Adjodning the Survey No. 86 to its north there is a Dehla (passage) and beyond it are the survey: Nos. 80 and 81 belonging to defendant 1. Beyond those survey numbers and to the north of the survey number belonging to defendant 1 are Survey Nos. 73, 77 and 78 which belong to defendants Nos. 2 and 3. To the east of these houses of the plaintiffs and the defendants, there is a certain open piece of land which has been shown in the map by the letters A, B, C, D and E. Between these pieces and the house belonging to defendant 1 there is what is described in the judgments of the lower Courts a narrow piece of land and it is shown in the map exh. 145 by yellow colour. The plaintiffs claim that by immemorial user and also by prescription they had a right of passage over the whole of the site marked by letters A, B, C, D and also the yellow piece of land. The plaintiffs' case was that the defendants had blocked the passage in the year 1937, and that therefore they had to file suits to establish their right of easement and to claim appropriate injunctions to enforce their rights. The defendants contended that the plaintiffs had no such right of way over these pieces of land and they had acquired no such right either by prescription or by immemorial user. Actually two suite were field to establish these rights. Suit No. 543 of 1938 was filed on 4-5-1933, and related to the portions-marked A, B, C, D and the small strip of Jehangirji Jamshedji and Ors. vs. Nariman Burjorji and Ors. (15.03.1951 -BOMHC) Page 3 of 10 girji Jamshedji and Ors. vs. Nariman Burjorji and Ors. (15.03.1951 -BOMHC) Page 3 of 10 land shown in yellow colour. The other Suit No. 1310 o 1933, related to the piece of land marked by the letter E. In the trial Court the plaintiffs succeeded in their claim with respect to all the portions of the property and the trial Court issued requisite injunctions in their favour. Against the decision of the trial Court, two appeals were filed in the District Court. They were Appeals Nos. 189 and 190. The learned District Judge upheld the findings of the trial Court with respect to the pieces of land indicated by the letters A, B, C, D and E. But he was of the opinion that with respect to the narrow piece of land shown in the map in yellow colour, the plaintiffs right of easement over it had not been established by prescriptive user of over 60 years. Accordingly he allowed the appeal of the defendants so far as the narrow strip of land was concerned, but dismissed their appeals with respect to plots shown by the letters A, B, C, D and E. From those decisions two second appeals were filed by the defendants in this Court, being Appeals Nos. 279 and 231 of 1946. They came up for hearing before Gajendragadkar J. The plaintiffs filed cross-objections with respect to the rejection of their claim for their right of way over the narrow piece of land shown in yellow. At the hearing the learned advocate for the defendants stated before the learned Judge that certain additional evidence was available with respect to the plots shown by the letters A, B, C, D and E. As this additional evidence could not be allowed in the second appeal, he asked for the permission of the learned Judge to withdraw the appeals so far as the right of easement in respect of the plots A, B, C, D and E was concerned. The learned Judge gave the necessary permission. But even with this withdrawal of the appeals filed by the defendants with respect to the right of way over the plots A, B, .C, D and E granted by the two lower Courts, the cross-objections of the plaintiffs with respect to the rejection of their claim over the narrow piece of land had still to be decided. The learned Judge therefore, proceeded to discuss the merits of the cross-objections which had been filed by the plaintiffs. Eventually, the learned Judge allowed the cross- objections, set aside the decree of the District Court in respect of that bit of land and restored that of the trial Court, Prom that order these two Letters Patent appeals have been filed, and the only point that we have got to consider in these appeals is with respect to the plaintiffs' right of way over this narrow piece of 'and to the east of defendant No. 1's house which has been shown by yellow colour in exh. 145.

(2.) With regard to this bit of land the point that was argued before Gajendragadkar J. was that the District court was wrong In holding that the last paragraph of Section 15, Indian Easements Act, applied, and that the plaintiffs had to establish their prescriptive user over this land for a period of 60 years. The facts accepted as proved by the learned Judge were

(3.) In taking that view, the learned Judge referred to the decisions of the other High Courts on the point where it appeared that a contrary view had been taken. He referred to the decision in --'Srinivasa Upadhya v. Ranganna Bhatta', AIR 1918 Mad 120 (C) wherein it was held by the Madras High Court that the words belongs to Government in the last paragraph of Section 15 Easements Act must refer not to the time of suit but to the time during which the easement was enjoyed.'' The learned Judge was not prepared to accept that view for the reasons given by him, and in support of his view the learned Judge-referred to the decision of the Lahore High Court in 'AIR 1342 Lah 124 (B)' the decision of Ashworth J. in -- 'Municipal Board Pilibhit v. Khali-ul-Rahman', AIR 1929 All 382 (D) and the decision of Yorke J. in --'Ram Prasad v. Lalit Kishore', AIR 1542 All 405 (E) all of which supported the view taken by Gajendragadkar J. It is true that the decision of Yorke J. in 'AIR 1942 Ail 405 (E) went before a division bench of the Allahabad High Court in a Letters Patent appeal in -- 'Lalit Kishore v. Ram Prasad', AIR 1943 All 362 (F). In the Letters Patent appeal Collister J. expressed no view on the point which Gajendra-gadkar J. had to consider. But it appears that Allsop J took the view which was contrary to that of Yorke J. and more in consonance with the view taken by the Madras High Court in -' Srinivasa Upadhya v. Ranganna Bhatta (C). Gajendragadkar J. pointed out that the opinion expressed by Allsop J. was 'obiter' as in that particular case the animus that was established was the animus as an owner and not the animus of a person exorcising the right of easement over the land of another. It was, therefore, not necessary for the learned Judge to consider the further question as to whether on the facts before him the proper period of prescription to be applied was 60 years or 20 years.