SULTAN AHMAD Vs. WALLIULLAH

JUDGEMENT

(1.) The finding on the first and second issues remitted by my order of April 11th is in the affirmative, and the finding on the third issue is in the negative.

(2.) The meaning of the findings on the first and third issues is that the defendants enjoyed the old western right of way over plot No. 1640 as an easement and as of right for more than twenty years up to within 16 or 17 years of this suit and then abandoned it, or at all events the southern part of it in order to go direct to a new door opened by them.

(3.) It seems to me that the result of these findings is that the defence fails. The fifth paragraph of Section 15 of the Easements Act seems to render it impossible to acquire a statutory prescriptive title to an easement unless and until the claim thereto has been contested in a suit. The same has been held with reference to Sections 3 and 4 of the Prescription Act, 1832 [see the judgment of Lord Macnaghten in Colls v. Home and Colonial Stores (1904) A.C. 179 at p. 189 : 73 L.J. Ch. 484 : 90 L.T. 687 : 53 W.R. 30 : 20 T.L.R. 475 and Hyman v. Van den Bergh (1908) 1 Ch. 167 : 77 L.J. Ch. 154 : 98 L.T. 487. The circumstance that Section 3 of the Prescription Act relates to continuous easements only does not appear to affect the matter. The fifth paragraph of Section 15 of the Indian Easements Act applies to both continuous and discontinuous easements.