JUDGMENT
1. The defendants are the appellants. The respondent herein filed a suit substantially for three relief's: (1) for a declaration that the lane marked CEDF in the plaint plan in his exclusive property and for possession; (2) for an injunction restraining the defendants from interfering with his right to drain water from his tiled roof situate on the eastern side of the lane, and also to have a free flow of light and air through the windows that exist on his western wall shown as C. F. in the plaint plan, and (3) for an injunction restraining the defendants from interfering with his possession of the lane south of the line AF and also from letting in their sludge water in a gutter situate in that lane.
2. The suit was resisted by the defendants contending that the plaintiff is not the owner of the lane marked CDEF, that the said lane belonged to them exclusively, that the plaintiff has no easementary right over that lane, and that the lane south of the line A F is not the exclusive lane of the plaintiff, but a municipal lane in which they have also a right to let in their sludge water.
3. On these pleadings, the trial court held (1) that the title to the lane CDEF, though originally vested in the plaintiff, had been lost by adverse possession of the defendants, (2) that the plaintiff is entitled to the right of easement claimed in respect of the lane CDEF and (3) that the defendants have no right to let in sludge water by connecting his drainage to the gutter situate in the southern lane. Though in the judgment, the trial court held that the plaintiff had lost his titled to the CDEF portion, by inadvertence, its decree had been drafted as if the plaintiff is entitled to a declaration of title to that portion.
4. There was an appeal by the first defendant against the decree and judgment of the trial court wherein he pointed out the mistake in the decree on the question of title to the portion CDEF. The lower appellate court set right that mistake and held that the plaintiff is not entitled to a decree declaring his title to the lane marked CDEF. On the other two questions, that is, the question whether plaintiff is entitled to easementary right in the lane CDEF and the question whether the plaintiff can prevent the defendants from connecting their drainage to the gutter situate in the southern lane, the lower appellate court practically agreed with the view taken by the trial court. The defendants, aggrieved against the decision of the lower appellate court, are before this court.
5. On behalf of the appellants, it is contended before me that the courts below were in error in considering the plaintiff's claim of easement over the lane CDEF, without reference to the claim of title put forward by him, and that as the plaintiff had claimed title to the lane CDEF, he cannot, at the same time, claim an easementary right over the same. According to the learned counsel for the appellants, to acquire an easement by prescription, the necessary animus has to be proved, and as the plaintiff has not only claimed title to the lane in his plaint, but also has chosen to adduce evidence on the question of title and had invited the trial court to give its decision on that question, and this conduct, on his part, shows that the requisite animus to acquire an easement by prescription was absent. The learned counsel also points out that the trial court found that the plaintiff originally had title to the lane CDEF, but he lost his title by adverse possession on the part of the defendants, that such adverse possession on the part of the defendant could have commenced only in the year 1942, when the first defendant purchased the property and erected the superstructure thereon treating the lane CDEF as his property, that the title would be lost only after the expiry of the 12 years from 1942, that is, in 1954, and that if at all the plaintiff could acquire easement by prescription by establishing that he has exercised that right for a period of 20 years from the date when the first defendant could have perfected title by adverse possession in 1954. It is said that the plaintiff having put forward specifically a claim of title to the lane CDEF and failed to establish his case he cannot fall back on his claim of acquisition of easement by prescription. The learned counsel also draws my attention to the relief's claimed by the plaintiff in his plaint. It is seen that the plaint has specifically claimed a declaration of title to the lane CDEF and also, at the same time, claimed an injunction against the defendants, on the basis that he has acquired an easement by prescription in relation to the same lane CDEF. As a matter of fact, the relief claimed are two independent relief's and not as alternative claims.
6. In Fakkir Mohamed v. Pichai Thevan, AIR 1926 Mad 625, a Division Bench of this court had to consider a similar situation. In that case, the plaintiff brought a suit for a declaration that a certain tank belonged to the Hindu community and for an injunction restraining the Muhammadans in the village from disturbing the performance of a ceremony called Mulaikottu ceremony in the tank. In addition to this declaration, they also pleaded that they have acquired a right to perform the ceremony in the tank as an easement, irrespective of the question of title. The question arose whether the plaintiffs, having failed to establish their claim for a declaration of title to the tank, could establish their case of easement by prescription. The Bench held that the user under a claim of ownership of a tank, in and over which such user is had, and which is negatived, cannot operate to found a right of easement over the tank.
7. The case position obtains in the present case. Here, the plaintiff came forward with a specific case of title to the lane CDEF. He invited the court to give its finding on the question of his title. After having failed to establish title, the plaintiff on the question of title to establish his right of easement on the ground that he exercised the right of easement for the requisite period over the lane CDEF, in respect of which he claimed ownership. The principle laid down in the above decision stands in the way of the plaintiff taking advantage of the finding on the question of titled for establishing his case of easement.
8. In Palaniswami Naicker v. Chinnasami Naicker, 1968-1 Mad LJ 502, Ramaprasada Rao, J., points out that it is permissible for a plaintiff to raise the plea of easement only when he gives up his alternative plea of ownership which he might have set up in the plaint. According to the learned Judge, even if the plaint has put forward both the question of title as well as easement in relation to a property, the plaintiff can press only one of them at the trial and if the plaintiff gives up his case of ownership, it is open to him to rely on his right of easement. In Subba Rao v. Lakshmana Rao, ILR 49 Mad 820 = (AIR 1926 Mad 728), the Full Bench of this court has laid down thus:--
"As 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."
Therefore, the question of animus plays an important part in the acquisition of easement. If, even at the time of the trial, the plaintiff was proceeding on the basis that he is the owner of the lane CDEF, he cannot be said to have had the requisite animus of enjoying the easement in the defendant's land as he had always been conscious of his ownership of the land.
9. In view of the above legal position, the plaintiff who had put forward a claim of title to the lane CDEF and failed to establish the same cannot seek to establish a right of easement over the same on the basis that he exercised such a right over a statutory period with the consciousness that he is exercising that right in the defendant's property. I have to, therefore, accept the contention put forward by the appellants in this regard and hold that the plaintiff has not established his right of easement by prescription over the lane CDEF. In this view, it is not necessary to go into the further question raised by the learned counsel for the appellants, that in any event, the plaintiff could not have acquired an easement by prescription before the suit as his easement should be deemed to have commenced only from the year 1954.
10. Then, comes the next question, whether the lane south of A. F. shown in the plaint plan belongs to the plaintiff and others, and whether he can have an injunction restraining the defendants from letting their sludge water into the gutter situate in that lane. The defendants never put forward any proprietary interest in that lane, but they merely claimed the right to drain sludge water into the gutter situate in that lane which, according to them is a Municipal lane, but it is the plaintiff who claims a proprietary interest therein along with others and it is only on the basis of such a claim, that he wanted an injunction preventing the defendants from exercising any right of drainage. Both the courts below have held that the lane is not a Municipal lane, but it is a private lane belonging to the plaintiff and others. For giving that finding, the courts below have referred to the sale deed, Ex. A-9 of the year 1908, wherein the lane has not been shown as the southern boundary of the property covered thereby.
11. I am not in a position to see how the courts below could conclude that the southern lane belonged to the plaintiff and others exclusively from the fact that Ex. A-9 does not refer to any lane on the south of the property covered thereunder. It is the plaintiff who claims to have a proprietary interest in the southern lane and seeks an injunction restraining defendants from using that lane for taking their sludge water and it is therefore for the plaintiff to establish that the lane belonged to him and others. From the mere fact that Ex. A-9, the document of title, on which the defendant rely, did not contain any reference to the lane, it cannot be concluded that the lane belonged to the plaintiff. As a matter of fact, the documents of titled Exs. A-2, A-3, B-8 and B-9 filed by the plaintiff specifically refer to the southern lane as the southern boundary. From that, it appears to be clear that the lane was not part of the property purchased by him. There is no other piece of evidence available before the court to establish plaintiff's case that he acquired any proprietary interest in the lane. Therefore, the findings of the courts below that the southern lane belonged to the plaintiff as they are based on no evidence at all. In fact, the available evidence is against the plaintiff's case of title to the southern lane.
12. The question then is whether that lane is a municipal lane. If the plaintiff could not establish any proprietary interest in the lane, he is not entitled to get any injunction against the defendants as to the user of the lane. Whether the lane is a municipal lane or not, if the plaintiff is not the owner of the lane, he is not entitled to restrain the defendants from using that lane. But, in this case, there is evidence to show that the lane is a municipal lane. P. W. 1 himself admits that there is a municipal lamp post, a dust bin and a cement platform erected by the municipality for the use of the residents on either side of the lane. It is also not in dispute that there is a gutter existing in that lane. As a matter of fact, there is no explanation forthcoming from the plaintiff as to how the structures of the Municipality came into the lane, if the lane is a private lane, as contended for by the plaintiff. The courts below have not considered this aspect and they merely proceeded to hold the lane to be private on the basis that Ex. A-9, the document on which defendants relied did not make any reference to a Municipal lane, lying on the south of the property.
13. I do not think that the way the courts below disposed of the case is in any way satisfactory. In my view the findings of the courts below that the southern lane is a private lane of the plaintiff and some others and, therefore, the plaintiff is entitled to get an injunction against the defendants in regard to the user of that lane cannot be sustained on the evidence on record. I must say that they have misread the evidence available in the case and have given a finding which is contrary to the evidence on record. The result is that the second appeal succeeds and the decree and judgment of the lower appellate court are set aside. There will be no order as to costs. No leave. C. M. P. No. 4160 of 1970 and 10691 of 1971 are dismissed.
14. Appeal allowed.