B UGAR SEN JAIN Vs. LTIRBHWAN NARAIN

JUDGEMENT

(1.) This is a second appeal by the defendants against a decision of the Additional Civil Judge of Bulandshahr. The plaintiffs who occupied a house in Khurja brought a suit against the defendants alleging that they, the plaintiffs, in a wall of their house had three barred openings (janglas) which had been in existence for a long time so that there was a right of easement of light and air but the defendants had now erected a wall so as to prevent the air and light reaching those janglas. The defendants in the written statement alleged that they were lessees, the lessor being the Crown, so that the plaintiffs in order to have an easement as regards their janglas had to establish peaceable enjoyment without interruption for 60 years and not 20. The statement of the counsel for the plaintiffs was then taken and he said that the enjoyment had continued for more than 60 years. It was the plaintiffs who claimed the right of easement and therefore they had to establish that under Section 15, Easements Act, they had that right, that is to say, they had to establish user for not less than 60 years in which ease it was immaterial whether the land was the property of the Crown or of a private owner or they had to prove that it was not Crown land so that user of 20 years was sufficient.

(2.) It appears to me that the statement of the counsel for the plaintiffs, though not expressly admitting that this land was Crown land, did so by implication for he represented his case as being that there had been user for 60 years, not that user for 20 years was sufficient because the land was not Crown land. It would have been proper in view of these pleadings to have framed an issue which made it clear that the plaintiffs to succeed had to prove user of 60 years and not 20. Unfortunately, the issue on this point was vague. It was as follows: How old are the disputed janglas? Have the plaintiffs an easement of light and air through them from defendants sight?

(3.) Dealing with this issue the first Court in its judgment after considering for how long the janglas had been proved to exist considered the next question whether the plaintiffs had acquired any easement of light and air. It found that the land was nazul and therefore 60 years user had to be proved. The only piece of evidence it referred to was a judgment between the Secretary of State and a former occupier of the land. It may well be that although the issue which I have quoted above was vague the Court remembered the statement of the plaintiffs counsel and merely mentioned that as it was nazul land, user of 60 years was required and it had not been proved. The suit was dismissed with costs and an appeal was filed. On this point the relevant paragraphs in the memorandum of appeal are as follows: 2. That the learned lower Court has erroneously applied the limitation of 60 years to the case. 3. That the defendants have utterly failed to prove the time when the land of the defendants house was converted into a nazul land.