MAGNIRAM Vs. RUSTAM

JUDGEMENT

(1.) THIS is a second appeal by Magni Ram and Baloo Ram defendants in a suit for demolition of certain constructions and for grant of a permanent injunction which was decreed against them by the Civil Judge Bhilwara. The decree was confirmed on appeal by the District Judge, Bhilwara.

(2.) BETWEEN the houses of the plaintiffs and Magni Ram and Baloo Ram defendants there is a piece of enclosed open land marked ABCD in plan Ex. 17. This land is situated to the south of the house of the plaintiffs. Eight Baris marked H to O, 8 Roshandans marked Y I to Y8 and one window marked C of the house of the plaintiffs open towards this land. Further 9 open projecting spouts of the house of the plaintiffs discharge on this land. Three of these spouts are on the first floor and marked P. Q and R. Six of them are on the second floor and are marked S to X, There is an opening EF in the northern wall of the contesting defendants through which they could have access to the land ABCD. It is through this opening EF that the water from the house of the plaintiffs discharging on the land ABCD flows out through the house of the contesting defendants. The contesting defendants started making constructions on the land ABCD in the year 1953. The present suit was then instituted. An order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. This order was defied and the constructions were raised so as to block the three spouts P. Q and R and all the 17 apertures. The plaint was thereafter suitably amended. The case of the plaintiffs was that either they were the exclusive owners of the land ABCD or they were the joint owners of it along with the defendants or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. They prayed that the constructions made by the contesting defendants on the land ABCD may be ordered to be demolished and a permanent injunction may be granted to safeguard their rights in respect of the apertures and the spouts. They also prayed that the contesting defendants be ordered to repair their constructions which they had demolished for making their new constructions.

(3.) WHETHER or not the right was exercised with necessary animus is a question of fact to be determined in each case. In the present case there can be no doubt that the plaintiffs neither had any ownership in the land ABCD nor could they possibly have entertained any belief that they had such ownership. As has been pointed out above the land was not accessible from the house of the plaintiffs. On the other hand it was accessible from the house of the contesting defendants through an opening in their wall. The plaintiffs opened a window in their house towards this land only with the permission of the contesting defendants. In the absence of any belief in the ownership of the land ABCD it must be presumed that the plaintiffs had the animus of enjoying the right of easement as an easement. In this connection the following observations made in Dwarka Vs. Ram Jatan (4) may be referred to:- "where the owner of one property exercises certain rights of enjoyment over the property of another for the beneficial enjoyment of the former, he must be presumed to possess an animus which is manifestly to his advantage. "