ABDUL KAYUM Vs. MOJIRAM

JUDGEMENT

(1.) THIS appeal arises out of a suit brought on the 9th April 1925 for a declaration that the plaintiffs had a right of way for certain purposes over a lane which lay between the plaintiffs' and the defendant's houses, and the right to have rain and waste water from plaintiffs' house pass into the lane, and for a perpetual injunction restraining the defendant from obstructing the way or the passage of the water. The trial Court held it proved that the rights claimed were enjoyed for twenty years as of right and without interruption but dismissed the suit as it found that the period of enjoyment ended more than two years before the institution of the suit. The lower appellate Court differing from the finding last mentioned decreed the suit. The defendant appeals.

(2.) A number of pleas were raised in the lower Courts, but in my opinion the plaintiffs' suit must fail on the ground discussed below.

(3.) ONE of the defendant's pleas was that the plaintiffs having all along purported to use the land as owners no easement could be acquired. The trial Court appears to have been of the opinion that it was immaterial that the plaintiffs purported to use the land as owners and that it was sufficient that they were never in fact owners. The lower appellate Court on this point observes; The fact that there was a claim of a higher right of ownership does not prevent the plaintiffs from acquiring the lesser rights of enjoyment over the land in question for the benefit of another land belonging to them. A prescriptive right of easement would be acquired even if the plaintiffs mistakenly supposed that they were the owners of the land and asserted that they gained the ownership by prescription; 38 Madras; p. 1.