1. This is defendants second appeal against a decree passed by the District Judge, Durg at Rajnandgaon, on 9th January 1954 in Civil Appeal No. 25-A of 1953.

2. The plaintiffs-respondents wanted a declaration that they were the owners of the wall AB between the houses of the appellants and the respondents, as shown in the plaint map, and that they had a right to stop the defendants-appellants from interfering with their right over the wall AB and that they had also a right to remove or destroy anything which might rest on the said wall AB. This declaration has been made by the lower appellate Court, excepting in respect of the wall standing on the portion AK and the rafters and other things resting on that wall in that portion.

3. The plaintiffs-respondents have a house facing east in the Sadar Bazar of Rajnandgaon town. To the south of that house was the house of one Balmukund Poddar, who sold that house to the appellants on 9-10-1926 under the sale-deed Ex. P-3. Rekhchand and Agarchand were brothers. Agarchand is dead, and is represented by his sons, who are appellants in this Court. In 1932 there was a partition between Rekhchand and Agarchand, and the northern portion of that house of the width of about 17 feet, adjacent to the plaintiffs house fell to the share of Rekhchand.

The wall of the total length of about 100 feet, shown by the letters AB in the plaint map, runs east-west between the plaintiffs' house and the house which fell to Rekhchand's share. In 1932, soon after the partition, Rekhchand started construction towards the west portion of his premises and built over the wall to the extent of the portion AC. It was at that time that a dispute as referred to arose between Rekhchand and the plaintiffs, and the dispute was referred to two arbitrators, who gave their award on 3-5-1932.

In 1937, fresh dispute followed and then Rekhchand executed the letter (Ex.P-1). On 9th November 1943 Rekhchand transferred his house to his brother Agarchand (appellant No. 1). There was trouble in July 1948 when the plaintiffs started rebuilding their western portion of the wall AB to the extent of 19 feet in length. In building the wall they cut the rafters, tin-sheets and other things, which were resting on the wall Agarchand (appellant No. 1) reported the matter to the police and proceedings under Sections 145 and 147 of the Code of Criminal Procedure were started against the plaintiffs. The plaintiffs were directed by the Additional District Magistrate, Rajnandgaon, not to interfere with the appellant Agarchand's right of placing rafters and beams over the wall in dispute.

The plaintiffs, then, filed this suit for a declaration that they had been the owners of the disputed wall AB and that they had a right to remove or destroy anything which might rest on the wall AB. They also claimed a permanent injunction restraining the defendants from interfering with the plaintiffs' rights over the wall in question and from putting any patias, rafters or wood or masonry work on the said wall AB for the support of their own building.

4. The defendants-appellants denied the claim. Their contention was that the wall in question was the joint property of the parties and that their structure had been deriving support from the wall in question for over sixty years.

5. The lower appellate Court found that the wall AB belonged exclusively to the plaintiffs. The contention of the appellants that the entire structure of the house of Balmukund Poddar rested, on the northern side, on the wall AB for more than sixty years and hence an easement of support was acquired by them over the entire wall was repelled. It was observed that in the sale-deed (Ex. P-3) no reference had been made to the wall AB or the right of the vendor to raise his roof on the said wall.

It was only in 1932 that for the first time the arbitrators found that beams and rafters of Rekhchand's' structure were embedded in the wall. But this could not be so in 1926. The lower appellate Court, therefore, held that somewhere after 1926 but before 1932 Rekhchand and his brother Agarchand (appellant No. 1) had interfered with the wall in dispute in the belief that they were also the owners of the wall. The Court, therefore, came to the conclusion that the patias, rafters, kamargahi and other things were embedded sometime after 1926 but before 1932.

The defendants, however, could not acquire the right by prescription, because they did not enjoy the right of support as an easement till 1932. The Court held that, first, the appellants thought that they were the owners of the wall; then they claimed the wall as common wall. Thus, the animus necessary for enjoyment as an easement was absent till May 1932. The suit had been filed in 1950, and, therefore, no right of easement had been perfected by the defendants over the central portion of the wall in suit.

As regards the wall AK, a portion of the wall AB, the Court held that the plaintiffs had undoubtedly agreed to the decision of the arbitrators and had permitted Rekhchand to spend money in constructing the wall and placing his roof thereon. This construction was done with the knowledge of the plaintiffs and in the belief that they would not dismantle it. The Court, therefore, held that the plaintiffs-respondents were estopped from demanding a right to dismantle the wall over AK or to remove the beams and rafters etc. on which the roof of that portion was supported.

Though the appellants' had not acquired any right of easement over the wall AK, the Court held that the plaintiffs-respondents were estopped from dismantling the existing structure in any way. The respondents have also filed cross-objections so far as the wall AK is concerned; but as this order is passed in accordance with a finding of fact, the cross-objections are devoid of substance and will be dismissed.

6. The only point advanced by Shri M. N. Phadke, learned counsel for the defendants-appellants in this appeal, is that the lower appellate Court's reasoning that the defendants had pleaded the right of an owner and, therefore, cannot have me animus of a person exercising the right of easement over the land of another is not correct.

Shri Phadke first contends that if the defendants' claim to the ownership of the wall in dispute was not upheld, it does not necessarily follow that there can be no animus to exercise the right of easement over the said wall. He, then, contends that the defendants' claim to joint ownership of the wall is different from their claim to its exclusive ownership and at least' the former is not inconsistent with their right of easement.

7. The question, in fact, is : whether the defendants' plea of the exclusive ownership or of the joint ownership of the wall in dispute is any bar to their setting up a plea of easement in this suit? The answer to this question will depend upon what an easement is. Section 4 of the Indian Easements Act, 1882 (5 of 1882) defines "easement" as "a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own."

The words "not his own" are important. They mean that nobody can have an easement over his own land. Thus the existence of two heritages or tenements (dominant and servient) belonging to different owners is absolutely necessary to constitute a right of easement. When the ownership in the two tenements becomes vested in one person, the right of easement comes to an end, and whatever had been hitherto enjoyed as an element becomes an ordinary right of property.

In order to acquire a right of easement Section 15 lays down that the right must haye been enjoyed for twenty years, without interruption, as an easement. Since ownership and easement rights are inconsistent and cannot co-exist in the same person in relation to the same tenement, acts of enjoyment of a right as owner cannot be relied on to establish a right of easement. Attorney General of Southern Nigeria v. John Holt and Co., 1915 AC 599 (A). The question whether the mere raising of the plea of ownership can lead to the conclusion that the person who raised the plea was not exercising his right of easement necessitates reference to, and consideration of, the case law bearing on the point.

8. The first case is reported in Narendra Nath v. Abhoy Charan, ILR 34 Cal 51 (FB) (B), In this case a Full Bench of the Calcutta High Court expressed the view that a suit is not liable to be dismissed because the plaintiff claims in the alternative over the same plot of ground rights of ownership as well as of easement. In Amrita Nath Biswas v. Jogendra Chandra, AIR 1924 Cal 369 (C), Narendra Nath's case (B), was explained, and it was held that the claim of ownership and a right of easement can only be advanced in the alternative.

The point came before a Division Bench of the Madras High Court in Konda Reddi v. Ramaswami Reddi, ILR 38 Mad 1: (AIR 1916 Mad 718) (D), and it was held that there is no reason why a person who walks along a certain land without the permission of the true owner and in the assertion of a right to walk should not create in favour of the enjoyer a prescriptive right of easement, simply because, he mistakenly supposes that he is the owner of the land or asserts his act of enjoyment is sufficient to give him the ownership by prescription.

Some doubts were expressed about the propriety of this view and, therefore, the matter came for decision before a Full Bench of the Madras High Court in Subba Rao v. Lakshmana Rao, ILR 49 Mad 820: (AIR 1926 Mad 728) (E). It was held by the Full Bench in this case that an 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. But a mere assertion of ownership in prior legal proceedings while the enjoyment was really as an easement is not conclusive against a right of easement. It was also held that the question of animus is one of fact.

9. In Tamanbhat v. Krishtacharya, AIR 1933 Bom 122 (F), it was stated that merely setting up a claim of ownership does not prevent the plaintiff from establishing a right of an easement. This statement was commented on by a Division Bench (Beaumont C. J. and Sen J.) in Rau Rama v. Tukaram Nana, ILR (1939) Bom 140 : (AIR 1939 Bom 149) (G). Beaumont C. J., who delivered the judgment of the Division Bench, observed as follows :

"In my opinion, where a party shows that for the statutory period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he was consciously asserting a right to an easement. Most laymen do not know exactly what their legal rights may be.

They do certain acts without formulating, even mentally, a legal claim, and in my opinion a right to an easement by prescription cannot be defeated merely by showing that during the whole or part of the period ot prescription the plaintiff was not consciously claiming an easement. On the other hand, it is I think established by the decision of Shearman J. in Lyell v. Hothfield (Lord) 1914-3 KB 911 (H) and the decision of the Privy Council in 1915 AC 599 (A), that if it be shown that the owner of the dominant tenement has in fact exercised all the rights which he says go to constitute an easement in pursuance of a perfectly definite and well-recognized claim of ownership, then it is not open to him to turn round and say

"now that my claim to ownership on which I always relied has failed, I rely on some of the acts of ownership as being sufficient to constitute an easement'."

The first point was adversely commented on by a Full Bench of the Bombay High Court in Rayachand Wanmalidas v. Maniklal Mansukh Bhai, ILR (1946) Bom 184 : (AIR 1946 Bom 266) (I), which will be referred to later.

10. In Dwarka v. Ram Jatan, AIR 1930 All 877 (J), it was held by a Division Bench that a plaintiff cannot be allowed to take the impossible position of being the owner of and of having a simultaneous right of easement over the same land. But where the reliefs claimed upon ownership and upon the right of easement in respect of the same property are not claimed simultaneously, but in the alternative, the action of the plaintiff must be condemned, but the plaintiff should not be penalized by a total dismissal of his suit.

A similar view was held by Staples, A.J.C., in Laxminarayan v. Faijulal, 29 Nag LR 330: (AIR 1933 Nag 257) (K), where it was laid down that the pleas of ownership and easement, though inconsistent, are not contradictory pleas and can be put forward in the alternative. It was added that at the trial of the suit the character of the user and the question quo animo ejerit with reference to the acts of user alleged by the plaintiff have to be decided, and, if the user is proved, one plea has to be affirmed and the other rejected.

11. In Rayachand Wanmalidas v. Maniklal Mansukhbhai (I) (cit. sup.) the case law was reviewed, and the first portion of the observations of Beaumont C. J. in Rau Rama v. Tukaram Nana (G) (cit. sup.) was disapproved. It was held that an easement by prescription is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the casement the person, who asserts the hostile claim, must prove that he had the consciousness of exercising that hostile claim on a property, which is not his own, and where no such consciousness is proved he cannot prove the prescriptive acquisition of the right.

It was added that if the owner of the dominant tenement has, during part of the period of prescription, exercised rights which he now claims as of easement, under the assertion or belief that he was the owner of the servient tenement, then his exercise of those rights is not exercise "as easement" and he must fail in a claim to easement. Divatia J. delivering this judgment also added that "It is certainly open to a party to raise in consistent defences in the alternative, but at the time when evidence is led he has got to elect as to which of the two alternative inconsistent defences he is going to prove. If he relies on the plea of ownership and leads evidence on that point and fails in doing so, and if he thereafter relies on the same evidence for easement rights, he will be met with a serious difficulty in establishing a claim of easement because of the plea of ownership for which he led evidence and failed. However, it does not necessarily follow, that, if a person makes inconsistent pleas he should not be allowed to lead evidence on those pleas. A party, if he choses, is entitled to lead evidence on both the alternative pleas; and it is for the Court to decide whether he is entitled to succeed on either of the pleas. Certainly he cannot succeed on both."

With great respect I should say that, in my opinion this is the correct statement of law.

12. It will be clear from all the above, cases that the question of intention (animus) is important in such cases; and though a claim of easement cannot be denied merely because the defendant had pleaded that he was the owner of the land, still it is necessary to prove that the enjoyment was an enjoyment of the easement in the character of an easement, distinct from the enjoyment of the land itself. The acts of the defendant must not be attributable to a claim to the ownership of the soil itself. The question quo animo ejerit, to what purported character are the acts of user to be ascribed, must be answered by the Court in such cases.

13. The state of a man's mind can only be judged by his outward acts and it is certainly a question of fact. If one has to judge the state of the defendants' mind in the instant case, I do not see how the conclusion can be avoided that they (defendants) persisted in their claim to the wall A B as exclusive owners or as joint owners. The enjoyment of the defendants was an enjoyment of the land, itself, as distinct from the enjoyment of the easement in the character of an easement. In other words, the right the defendants claimed to be exercised was not an easement, but a proprietary right incident to the ownership of the land.

14. The question whether the defendants-appellants exercised their rights as exclusive owners of the wall or as joint owners of the wall is immaterial. Even the concept of joint ownership excludes the possibility of the existence of two tenements (dominant and servient) which is necessary to constitute a right of easement. Therefore, it was held by Baker J. in Marghabhai v. Motibhai, AIR 1932 Bom 513 (L), that a person cannot acquire an easement of light and air over property jointly owned by him with others. A similar view has been held by a Division Bench (Barlee and Mackiin JJ.) in Narayan Balwant v. Shankar Waman, ILR (1938) Bom 53 : (AIR 1938 Bom 215) (M).

15. Shri M. N. Phadke draws my attention to a recent case of the Allahabad High Court reported in Ahiqa Khatoon v. Aqila Bano AIR 1956 All 415 (N), where a learned Single Judge has dissented from the Bombay view, alluded to above. After reading this Allahabad judgment carefully, I feel I cannot agree with the opinion expressed in it. There is no discussion in it of the provisions embodied in Section 4 of the Indian Easements Act or even of the concept of dominant and servient tenement. The learned Judge has applied the principles of Sturges v. Bridgman, (1873) 11 Ch. D 852 (O) to joint property. In my opinion, the principle enunciated in the English case could not be made applicable to joint property.

The facts of the English case were that a confectioner had for more than twenty years used a pestle and mortar in his back premises, which abutted on the garden of a physician, and the noise and vibration were not felt as a nuisance and were not complained of. In 1873 the physician erected a consulting-room at the end of his garden, and then the noise and vibration became a nuisance to him. He accordingly brought an action for an injunction. It was held that the defendant had not acquired a right to an easement of making a noise and vibration, and the injunction was granted. In expounding the principle of the acquisition of the right to an easement it was observed:

"Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence."

It was on this basis that it was laid down that user which is neither physically capable of prevention by the owner of the servient tenement, nor actionable, cannot support an easement.

16. It will be clear that in Sturges v. Bridgman (O), (cit. sup.) the existence of both the servient tenement and the dominant tenement had been assumed when the dictum was laid down that there can be no easement except by user which is capable of being resisted either physically or in Courts. Surely, this dictum cannot be made applicable to joint property where there can be no question of easement. I, therefore, feel that so far as joint property is concerned, the view expressed in Marghabhai v. Motibhai (L), (cit. sup.) and Narayan Balwant v. Shankar Waman Govalkar (M), (cit. sup.) is the correct one.

17. Gale in his "Law of Easement", 12th Edition at page 406, has observed that although, strictly speaking the rights and liabilities ir respect of a party-wall relate principally to the doctrine of tenancy in common, yet some of the rights partake of the character of easements. Thereafter, the learned author gives four meanings of the term "party-wall". It may mean --(1) a wall of which the two adjoining owners have rights analogous to those of former tenants in common; (2) a wall divided longitudinally into two portions, one belonging to each adjoining owner; (3) a wall which belongs entirely to one adjoining owner but subject to an easement in the other to have it maintained as a dividing wall; and (4) a wall divided longitudinally into two portions, each portion being subject to a cross easement in favour of the owner of the other.

It will be seen from the above that the question of easement will arise only in the last two classes of party-walls. What the defendants claimed in the instant case was that both the plaintiffs and the defendants were the adjoining owners of the party-wall A B; in other words, that they had rights analogous to those of former tenants in common. In such cases either party would have a right to pare away the wall on his side so as to weaken the wall on the other, and to produce a destruction of that which ought to be the common property of the two. As Gale observes at page 407 that the law before 1926 in England was that where one owner excluded the other from the use of the top of the party-wall by placing an obstruction thereon, the only remedy of the excluded owner was to remove the obstruction. Clearly, in such a case the question of right of easement would not arise.

18. I, therefore, think that the defendants' plea was rightly rejected by the learned lower appellate Court.

19.This appeal is accordingly dismissed with costs.