SHIV PYARI Vs. SARDARI

JUDGEMENT

(1.) THIS Civil Second Appeal by the defendant arises under the following circumstances.

(2.) TWO houses adjacent to each other as shown in plaint (Ex. 3) on the record situated in Jodhpur City formed one single house at one time. Of these two houses, the southern house belongs to Mst. Sardari plaintiff-respondent, while the northern house belongs to Mst Shiv Pyari defendant-appellant. Outside both the houses, there is a Chabutra with a staircase which is marked by letters EBCF in the plan. Part of the Chabutra is in front of the house of Mst. Sardari, while the rest with the staircase is in front of the house of Mst. Shiv Pyari. In front of both the houses, there is a public road. The case of the plaintiff is that to have access to the public road from her house, she has to make use of the Chabutra and the staircase marked ABCD in front of the house of the defendant. She claimed that she had the right of easement of necessity to the use of the 'chabutra' ABCD with the staircase as there was no other way to go to the public road from her house. She further claimed that she had acquired the right of easement by way of prescription as she and her predecessors-in-title had been using the 'chabutra' ABCD and the staircase for going and coming out of their house for more than 20 years. In the suit Bhanwarlal husband of Mst. Shiv Pyari has also been made a defendant. It is alleged that the defendants had placed three slabs at the place AB on the Chabutra ABCD in order to obstruct the plaintiff's passage to her house. She, therefore, prayed for a declaration that she had a right of easement as described above and further prayed for the removal of the obstruction and also for grant of a permanent injunction restraining the defendants from placing any obstruction in her way in future. The trial court decreed the plaintiff's claim holding that the plaintiff had acquired the right of easement by prescription over the 'chabutra' ABCD and the staircase. The decree was maintained in first appeal by the defendants. Hence this second appeal on behalf of the defendants.

(3.) LET us slightly change the facts of the above illustration. LET us take it that A has acquired possession of the tenement Y during the statutory period provided for acquisition of the right of easement. As soon as he acquires possession of the tenement Y, the process of acquisition of easement stops because henceforth the acts of his passing over the land will be referable to his possession of tenement Y except under special circumstances. He is no more making limited use of tenement Y. He is using it as any other property in his possession. A cannot succeed in such a case when he puts forward a claim that he has acquired easement unless he shows that all along he had the animus to acquire right of easement.