MARGHABHAI VALLAVBHAI Vs. MOTIBHAI MITHABHAI

JUDGEMENT

(1.) This appeal raises a question of law on which the lower appellate Court has gone wrong. The plaintiff sued to obtain a declaration that he is entitled to build over the land in dispute which has fallen to his share, and to obtain an injunction restraining the defendant from obstructing him in building the same, and to remove the eaves of the defendant's roof abutting on the suit space. There was an open piece of land between the houses of the plaintiff and the defendant over which the defendant claimed ownership. The eaves of his house projected over this piece of ground, and certain windows of his house received light and air. But ultimately the plaintiff obtained a decree, which was confirmed in appeal, to the effect that he was entitled to a one-third share in this ground along with the defendant and one Kashibhai, and in execution of the decree he got possession of his one-third share, which abuts on the defendant's house, but when he desired to build on it, he was obstructed by the defendant, who claimed an easement of light and air over it which would be interfered with by the proposed building of the plaintiff. The first Court, the Joint Subordinate Judge of Nadiad, gave the plaintiff a decree, but on appeal the First Class Subordinate Judge with appellate powers reversed the decision on the ground that the defendant had acquired an easement over the property even though it is joint property. The view of the learned Judge of the lower appellate Court was that for easements there is nothing to prevent a person A who has full ownership over property B and a joint ownership over and user of a property 0 from acquiring easements in respect of B over C as a servient tenement by enjoyment and acquisition in any legal mode. He distinguished the facts of Ghunilal Fulohand V/s. Mangaldaa Govardhandas (1891) I.L.R. 16 Bom. 592 and relied on Rambhai Dabhai V/s. Vallabhbhai Jhaverbhai, s.c. 23 Bom. L.R. 422. He also refers to Earl De la Warr V/s. Miles (1881) 17 Ch. D. 535. He, therefore, held that the defendant had acquired an easement by long user for fifty years and prescription, and that the plaintiff had not the right to build on the whole land and have the eaves cut off. The plaintiff makes this second appeal, and it is contended on his behalf, first that the defendant having always believed himself to be owner, he could not have enjoyed the light and air and the right of dropping water from his oaves as as easement, and that an easement cannot be acquired over property of which the owner of the dominant tenement conceives himself to be the owner. Secondly, the property having been found to be joint, no easement can be acquired over it. Thirdly, at the partition, the defendant having by his statement, Exhibit 39, and darkhast No. 84 of 1923, given up all his rights in the property, he is estopped from contesting the plaintiff's right to build, and lastly, no actionable wrong has been caused. The view of the law which the learned Judge of the lower appellate Court has taken is undoubtedly wrong, and is opposed to the decisions of both the Privy Council and the English Courts and of the High Courts. The defendant claims the right to light and air by immemorial user, but he has throughout claimed it as an owner until in the suit of 1918 it was found that the land in dispute was joint. And the law is that if a person enjoys a right under the supposition that he is an owner, he does not acquire an easement, This has been laid down frequently by all the Courts, by this Court in Chunilal Fulchand V/s. Mangaldas Govardandas (1891) I.L.R. 16 Bom. 592, which says:- In order to acquire an easement under Section 26 of the Limitation Act (XV of 1877), the enjoyment must have been by a person claiming title thereto as an easement as of right for twenty years. Evidence of immemorial user adduced in support of a right founded on ownership, does not, when that right is negatived, tend be establish an easement.

(2.) The learned Judge of the lower appellate Court has distinguished this case as being on its own facts. But I do not think that there is any such distinction. It is plainly laid down that (p. 595) "it would be equally necessary for the plaintiff to prove a user of the nul, gutter and kothi as of right as an easement, as distinguished from a right of ownership." Another leading case on the point is Subba Rao V/s. Lakshmana Rao (1925) I.L.R. 49 Mad. 820, F.B., where it was held:- An easement by prescription is capable of being acquired only if the user during the statutory period had been with the animus of enjoying the easement as such in the land of another and not if the user had been in the consciousness of one's own ownership over the same. But a mere assertion of ownership in. prior legal proceedings while the enjoyment was really as an easement, is not; conclusive against a right of easement. The question of animus is one of fact."

(3.) In this present case, until the decision of the suit in 1918 the defendant ha8 throughout claimed to be owner, and therefore as the user has not been with the animus of enjoying the easement as such in the land of another, there can be no acquisition of easement. There are a number of English cases on the point, which are collected in Subba Rao V/s. Lahshmana Rao, and which have been quoted by the learned advocate for the appellant. The first of them is a judgment of the Privy Council, Attorney-General of Southern Nigeria V/s. John Holt and Company (Liver-pool), Limited [1915] A.C. 599, At p. 618 their Lordships say :- An easement, however, is constituted over a servient tenement in favour of a dominant tenement, in substance the owner of the dominant tenement throughout admits that the property is in another, and that the right being built up or asserted is the right over the property of that other. In the present case this was not so. For these reasons their Lordships are of opinion that the grounds upon which the judgment appealed from are put cannot be maintained.