PHOOLCHAND NARAYANDAS AND ANOTHER Vs. MURARILAL NATHULAL

JUDGEMENT

(1.) THIS is an appeal by the deft, against the judgment and decree of the Dist. J. Gwalior, who amending the decree of the trial Court decreed the suit of the pltf. in toto. The facts of the case briefly are as follows. The pltf. filed a suit against the deft, in the Court of the Cantonment Mag. Morar, alleging that between the houses of the parties there is open land on which the pltf's. sweeper has a right of way to come and clean pltf's. privy. On this land the deft, constructed his privy and thereby obstructed the easementary right of the pltf. By the same act he also obstructed the access of a light and air to the pltf's. privy. The deft. also encroached upon the walls of the pltf. by fixing girders into the walls and resting the stone, slabs on them. On these allegations the pltf. prayed for a decree to remove the structure of the deft or in the alternative for a decree to remove the encroachment on the walls and the obstruction of way light and air.

(2.) THE trial Court gave a decree for removal of encroachment on the walls and dismissed the rest of the suit. Both the parties preferred an appeal against this decree in the Court of the Dist. J. at Gwalior. The learned Dist. J. dismissed the appeal of the deft and decreed the suit of the pltf. as prayed foe in para 7 (b) of the plaint Against this decree the deft. has filed this appeal.

(3.) THE learned counsel for the applt. argues that the pltf. has not proved that he has bean enjoying the right of way (1) as of right and (2) as an easement. The gravamen of his contention is that the pltf. has not appeared in the witness -box to depose that he enjoyed the right as of right and as an easement. It is true that the pltf. has not appeared as a witness in the case. But whether the user was with an animus as of right is a question of fact in every case. The pltf. has produced two witnesses Sanna and Mt. Bhuri who have been cleaning the latrines for a number of years Mt. Bhuri states quite clearly in her deposition that she has been cleaning pltf's. privy ever since she was grown up enough to start work. Her age at the time of the statement was 50 years. She also states that all the time she has bean working these latrines have been in use and the use of them was never stopped. The deft. has adduced no evidence in rebuttal. There is no evidence on record to show that the right of way was being used as a licence or by express or implied permission of the Municipality to which apparently the open land belongs. No relationship or friendship between the pltf. and the owner of the servient heritage has either been pleaded or proved and as the right is found to have been enjoyed openly, peaceably and for a very long period without express or tacit consent of the servient owner, the pltf. naturally starts with the presumption in his favour that he enjoyed the right adversely to the servient owner and assertively with his consent. Kunjammal v. Rathinam Pillai,, A.I.R. 1922 Mad. 5 : (45 Mad. 633) and Maharajah of Venkatagiri v. Ardhamala Yagadu, : A.I.R. 1937 Mad. 953 : (175 I.C. 668). This presumption has not been rebutted by any evidence by the deft. The learned counsel for the applt. has cited Siti Kanta Pal v. Radha Govinda, : A.I.R. 1929 Cal. 542 at p. 543 : (56 cal. 927) in support of his argument. In that case the learned Judges of the Calcutta High Court observed as follows: