KANDHANATH ALIAS KARUTHADATH ALIAS PARAKKATILATH AND MANAGER,NARAYAN NAMBUDRI Vs. CHEMBOLI VALIA VEETIL AND MANAGER, NARAYAN NAIR

JUDGEMENT

(1.) SEVERAL objections have been raised to the judgment of the lower Appellate Court by the learned Vakil for the appellant, but it is enough to deal with one of them, as we are of opinion that the appeal mast succeed on that ground. The suit relates to certain rights of way over certain land in the defendant s possession. The defendant, amongst other pleas, contended that the plaintiffs themselves had been in possession of the defendant s land for a very long period, much more than 20 years, up to within a time shorter than 20 years before the institution of the suit, and that, assuming that the plaintiffs had ever possessed the right of easement claimed by them, it was destroyed, as both the dominant and servient tenements were in their own possession for a period of more than 20 years. According to Sections 49 and 51 of the Basements Act, an easement, suspended for more than 20 years, would be destroyed. The Appellate Court was of opinion that the defendant s contention could not be upheld. But no reference is made in its judgment to Sections 49 and 51 of the Easements Act. The Subordinate Judge observes: "Sections 12 and 47 of the Easements Act have nothing to do with the case. Exhibit V supports the plaintiffs case that their family enjoyed the right of way claimed by them even before they became lessees or demisees of the B plots under the defendant, and that; right should be considered as having been enjoyed separately from the right of demise." But, even if the easement existed from a time before the plaintiffs became demisees of the land B, that would not save the plaintiffs from the operation of Sections 49 and 51 of the Easements Act. Exhibit XIII shows that the plaintiffs family was in possession for a considerable time. It states that a renewal was obtained in 1879. Exhibit V, a judgment in a suit to which some of the members of the plaintiffs family were parties, shows that the family held that demise in 1859. It is, therefore, quite clear that the easement was suspended for more than 20 years. The fact of the plaintiffs possession of both the dominant and Servient tenements for a long time was distinctly raised in the written statement and the Subordinate Judge seems to have proceeded on the footing that the allegation of unity of possessions was true.

(2.) THE result is that we must hold that the plaintiffs have no enforceable right of easement, and, reversing the decisions of both the Courts, we direct that the suit be dismissed with costs throughout.