BIBI SALMA KHATOON Vs. JANKI DEVI

JUDGEMENT

(1.) The dispute in this appeal is confined to three feet land lying adjacent west of western wall of the house of the plaintiff-respondents. The plaintiffs claimed title and thus absolute ownership of the said land as also right of easement perfected by continuous enjoyment of light and air and drainage through the said three feet land. The defendant-appellant disputed the plaintiffs' claim of absolute ownership as also enjoyment of any right of easement. Both the Courts below have found that the title to the land is not proved by the plaintiffs; but they have upheld the right of easement on the basis of the finding that the plaintiffs enjoyed light and air as also drainage through the said three feet of land for more than twenty years, and thus perfected the right of easement. The instant appeal is directed against the said finding and judgment and decree accordingly.

(2.) A further controversy was raised about the construction of a wall close to the house of the plaintiffs in the suit. Granting the said right of easement in favour of the plaintiffs the Courts below have decreed the plaintiffs' claim for removal of the wall and enjoined the defendant-appellant from making any construction and/or obstructing the plaintiffs' easement.

(3.) Mr. Bhartee, learned counsel appearing for the appellant raised two contentions. He has submitted that the very fact that the plaintiffs pleaded both ownership as also easement in the suit and led evidence accordingly to prove their title as also the right of easement shows that the servient right was not enjoyed by the plaintiffs with animus and the two pleas being inconsistent with each other the suit should have been dismissed outright. He has next contended that before the court granted a decree for injunction it should have recorded a finding that the construction of the wall and/or existence of the wall would cause injury which would not be compensated by any means and the easement claim cannot be enjoyed otherwise. In support of the first contention he has placed reliance upon a Division Bench judgment in the case of Khanchand Jethamal v. Naraindas Pahlajrai, AIR 1939 Sind 110. Speaking for the Court Davis J. C. has said that in order that a plaintiff should prove the right to an easement, he must show the exercise of that right with the necessary animus throughout the statutory period; the question of animus is a question of fact to be proved by evidence; though a plaintiff in a case to establish right of easement may in his pleadings raise inconsistent pleas, yet if in the witness-box he leads evidence to show that he is the owner of the land over the statutory period or some part of it, he clearly destroys his case which is dependent upon his showing that he is not the owner of the land over the statutory period and has not claimed the right of owner but the exercise of the right over the land of another; in such a case the plaintiff must necessarily fail on both the grounds as one plea is fatal to the other. This view of the Sind Court is a reiteration of the view taken in some Bombay cases which are referred to in its judgment and a case of the Madras High Court in Subba Rao v. Lakshmana Rao (1926) ILR 49 Mad 820. In the case of Rau Rama Atkile v. Tukaram Nana Atkile (AIR 1939 Bom 149) however the view similar to the view expressed by the Sind Court in the decision of Baker, J., in (1932) 34 Bom LR 1015 came up for consideration. Beaumont, C. J., speaking for the Court has said :-