BASAVANAGUDI NARAYANA KAMTHY Vs. LINGAPPA SHETTY

JUDGEMENT

(1.) Following the ruling in Mani Chander Chuckerbutty v. Baikunta Nath Biswas (1902) I.L.R. 29 C. 363 we must hold that the appellants were not in a position to acquire any easement right over the respondents land as they were his tenants. The fact that the tenants were permanent tenants was held to make ho difference on this point in the Calcutta case.

(2.) That case is sought to be distinguished on the ground that the Easements Act did sot apply to Bengal. But it is not shown how the Easements Act has made any difference on the point. Section 12 of that Act enables only owners of immove-able property to acquire easement rights and not persons who are mere lessees. If a lessee by his user acquires any easement right over another s land he acquires for the benefit of the tenement he is holding and as that belongs to his landlord th e benefit will go to the latter, and it follows that such a right could not be acquired or set up against the landlord. The English Law is clear on the point, vide the case cited by the learned Subordinate Judge Gayford v. Moffatt L.R. 4 Ch. App. 133. The question whether the land over which the easement is claimed was originally Government land or land belonging to the appellant s landlord is immaterial on the above view. It now admittedly belongs to the latter and any claim by way of easement therefore fails.

(3.) It was then suggested that from long enjoyment a grant of an easement right by the landlord at the time of its inception might be presumed. This case was not made in the lower courts and it cannot be allowed to be raised in second Appeal for the first time as plaintiff has not had a proper opportunity to meet it. There is also a difficulty in raising such a presumption if the land over which the right of way is claimed belonged to the Government. Even if it was the landlord s land the mulgeni in favour of the appellants having been created presumably by a mulgeni document oral evidence adding to its terms cannot be allowed. But it is suggested that this grant may have been subsequent to the grant of the mulgeni right itself. In such a case perhaps the creation of a right of way in the appellants favour by an oral grant might have been pleaded but such a, special case was not set up at all and we cannot allow it now. The second Appeal fails and it dismissed with costs.