SUBBA NAYAKKAR Vs. AKKAMMAL

JUDGEMENT

(1.) The other claims made in the suit, out of which this appeal arises, having been decided Against the plaintiff, the only point to decide now is whether the plaintiff has Succeeded in establishing her right of easement on" the western space lying to the north of the defendant's house and abutting on the Union lane near the line marked AG in the plan Ex K-l. The plaintiff V suit was totally dismissed by the District Munsif of Palni but an appeal to the Subordinate Judge of Dihdigul was partially allowed and the plaintiff was found to have established her right of way in regard to the plot indicated above. The defendant appeals and contends that the decision of the learned Subordinate Judge decreeing the plaintiff's right of easement to the disputed plot is incorrect. The question to decide is whether it is so.

(2.) It is undoubtedly true that the plaintiff came to Court with two inconsistent allegations claiming both ownership and, in the alternative, easement in regard to the same plots. That they were inconsistent yet capable of being put forward, may be, in view of the decision of the Full Bench of this Court in Subba Rao V/s. Lakshmana Rao (1925) I.L.R. 49 Mad. 820 (F.B.) taken as no longer open, to question. The Civil P. C. permits inconsistent pleas to be raised after all. It has been equally settled that if a person begins, to assert that he is the owner of a plot over which his right of easement has not matured, he may not succeed in establishing-ownership but would, nonetheless, lose, on account of his claim, the right of easement for which he was prescribing. And this, because he could not hold the property both adversely as a complete owner and as the holder of a dominant tenement where he claims only certain limited rights by way of an easement and recognises the proprietary rights of the servient owner in the tenement. In delivering the judgment of the Court, Sir Murray Courts Trotter, C.J., observed as follows: The learned Judges in Kondla Reddi V/s. Ramasami Reddi (1912) I.L.R. 38 Mad. 1 seem to imply that the assertion of ownership during the period of user is not fatal to the success of a claim to an easement. To this proposition we cannot assent. Our opinion is that while the mere putting forward of a wider claim in legal proceedings is not conclusive against a right of easement, yet the question quo animo egerit, to what purported character are the acts of user to be ascribed is one which the Court must answer They followed the decision in Lyell V/s. Hoth field (1914) 3 K.B. 911 which laid down that, acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to aft easement. Nothing was said by the learned Chief -Justice in the above mentioned case that might lead to the conclusion that an assertion of ownership, after the period of user has matured into an easement, would be fatal to the right already acquired.

(3.) Learned Counsel for the appellant contends that the claim as to ownership of the plot in dispute was not only made by the plaintiff for the first time in her plaint presented in March, 1936 but that she had been doing so since June, 1935 and this would be sufficient to extinguish her claim in regard to easement. The lower appellate Court finds as a fact that the plaintiff had been exercising her right of way oh the plot in dispute for about 24 years before the letters and petitions containing the plaintiff's assertion of ownership were written and made. This is a finding of fact which the lower Court was entitled to arrive at and must be accepted by me in second appeal. Whether the claim made in 1935 can be destructive of the easement, if one had been already acquired by the plaintiff as the lower, appellate Court finds it to have been done, is the next question which deserves consideration.