LALIT KISHORE Vs. RAM PRASAD

JUDGEMENT

(1.) This is an appeal under our Letters Patent against a judgment of learned single Judge of the Court. The appeal arises out of a suit which was instituted by the respondent, Ram Prasad, against the appellant, Lalit Kishore, in order to obtain an injunction that the latter should not interfere with certain alleged rights of easement claimed by the former over a plot of land lying between his house and the public road. The plaintiff claimed a right to maintain a latrine upon the land in suit, to discharge water from his roof upon it, to carry the water away by means of a drain across it and to exercise a right of way over it. The plaintiff had instituted a similar suit in the year 1932. He then sought an injunction upon the ground that he had acquired a title to the land by adverse possession. His immediate cause of action was that the defendant had cut down a tree growing upon the land but he also alleged that he had a latrine on, and water spouts over, the land. The defence was that the land had been transferred to the defendant by the Municipal Board acting as agent on behalf of the Government to whom the land had originally belonged. It was held definitely by the first Court of appeal and by this Court that the land had belonged to the Government and that the plaintiff had not acquired any right by adverse possession because he had not established possession over a period of 60 years.

(2.) The present suit was decreed by the trial Court but was dismissed by the first appellate Court. The learned Judge held that it was res judicata between the parties that the land had belonged to the Government and consequently that the plaintiff could not succeed unless he could show user over a period of 60 years which he had failed to do. He also held that the plaintiff had not proved that he had at any time been exercising any rights over the land as rights of easement. On second appeal to this Court, a learned single Judge restored the decree of the trial Court. It seems to me that one of the real points at issue was somewhat obscured by the emphasis which was laid before the learned single Judge upon the question whether the plaintiff was barred from setting up easements in this case when he had set up his proprietary possession in the case in 1932. That question undoubtedly arose but the real point was not whether the plaintiff could plead or set up an easement but whether he had proved the necessary facts which would give him a right to an easement. In the two cases of this Court which were quoted to establish the proposition that the plaintiff's previous plea of proprietary possession was no bar to his setting up a plea of easement, namely, the case in Chadammi Lal V/s. Shib Charan ( 05) 2 A.L.J. 59 and the case in Dwarka V/s. Ram Jatan ( 30) 17 A.I.R. 1930 All. 877 and in the Madras case in Subha Rao v. Lakshamana Rao , it was clearly pointed out that the plaintiff might set up an easement but that he had to prove in order to succeed that he had had the necessary animus. These cases lay down a proposition which is otherwise definitely established that physical acts alone do not give rise to a right of easement. Physical acts must be accompanied by the requisite animus or intention. In order to acquire a right of easement, a person must not only do the necessary physical acts over the period prescribed by law but he must be setting himself up as the person who is doing those acts over the property of another. If he is setting himself up as the owner in possession of the property he cannot acquire any right of easement : User which consists of acts attributable to a claim to a title in the soil is not such user as will support a claim to an easement: Halsbury's Laws of England relying upon Lyell V/s. Hothfield (1914) 3 K. B. 911

(3.) The cases which I have mentioned above also establish the point that this question of animus is a question of fact. If the plain. tiff was in fact throughout the period claiming to be the owner of the soil and exercising his right over the soil as an owner, he would not acquire an easement. The fact that he pleaded in the former case that he was an owner would not debar him from pleading in this case that he had been in fact setting himself up as a person exercising an easement but it is obvious that both propositions could not be true. A man may say, "I contend that I have been in possession of this land for twentyfive years or that I have been acting as though I was the owner of it but if I cannot prove that or if you do not believe me, I can at least prove that I have been exercising a right of way over the land and have been setting myself up as a person entitled to use the way as of right over the land of another." The question before the Court, however, will be whether either of these allegations is true. If the former is true the Court will give the plaint-tiff the rights of an owner in possession. If the latter is true, it will give him a right of easement. It obviously cannot find that both allegations are true at the same time, and it has to decide whether either of them is true. In the case which is before us the learned Judge of the first appellate Court whose findings of fact are binding upon us found that the plaintiff had failed to prove that he had exercised any rights by way of easement. He says : Even as regards this user there is no evidence that it was exercised as an easement. In the previous suit as well as in this suit the plaintiff claimed himself to be the owner of the disputed land. There is not a word in the plaint to show that the right wag exercised by him not as an owner but as an easement.