JUDGMENT
1. The plaintiff claims an easement of a right of way to his scavenger over a lane. The District Judge has found it in the plaintiff's favour. Section 15 of the Easements Act requires that the enjoyment of the way should have been as an easement for the period of prescription. The Judge has not adverted in his judgment to this requirement. The appellant's vakil argues that in two prior suits in 1877 and 1893 the plaintiff claimed ownership and could not therefore have enjoyed the way as an easement and relies on Chunilal Fulchand v. Mangaldas Govardhandas [1892] 16 Bom 592. In that case the contention in the first suit was apparently the evidence relied on to prove enjoyment of an easement and the Court refused to treat enjoyment as owner as evidence of enjoyment of an easement. It may be in the present case, especially having regard to the observations of the Munsif in Exhibit B, that the plaintiff enjoyed the way as an easement though he falsely set up ownership. We do not think such a false plea would necessarily preclude the acquisition of a right of easement. But we think we ought to have a revised finding from the Judge on the question whether the plaintiff has enjoyed the way as an easement as of right for the prescriptive period with reference to the circumstances we have adverted to. They are material for determining quo animo did the plaintiff enjoy the way. The finding will be returned on the evidence on record within one month after the re-opening of the District Court. Seven days will be allowed for filing objections.
2. In compliance with the order contained in the above judgment, the District Judge of Tanjore submitted the following.
FINDING.
3. I am required to submit a finding on the following issue Whether the plaintiff has enjoyed the way as an easement as of right for the prescriptive period?
4. That the lane or open space has been used for a very long period as a means of access to the plaintiffs' latrine is established by the oral evidence which has now been given supported as it is by the reference to the user in Exhibit B and by the circumstance that the lane leads up to the latrine and that a doorway has been provided for entering it. The cross wall referred to in the plaint was also in existence far back as 1877 (vide Exhibit B). There is no doubt that the plaintiff had attempted to assert a claim to exclusive ownership in O.S. No. 148 of 1877. It is not clear whether the subject matter of O.S. No. 660 of 1893 really covered the lane. The plaintiffs in that suit relied upon the sale-deed Exhibit A, which the 2nd plaintiff then tried to suppress. The sale to him was of 1/4 of the house-site. The lane was mentioned as one of the boundaries and was not included in the sale (vide Exhibit A). The 2nd plaintiff then set up an altogether baseless claim to the whole house-site. The conduct of the 2nd plaintiff throughout was that of a man who was suppressing the real facts in order thereby to lay claim to rights larger than those which he actually possessed. Thus in the suit of 1877 the fact (which appears to have been admitted on both sides) that there had been open and regular user of the passage was relied on to support the further claim to exclusive ownership. Even after this claim had been defeated there can be little doubt that the use was openly continued and was enjoyed without question and as of right. If this were not so there would have been definite evidence of action taken to prevent the use. In the proceedings of 1893 the existence of the lane was not disputed and the question of the use to which it was put was not raised. It seems to be as true now as it was in 1877 that there is no practical means of access to the privy except through the lane and I think the probabilities are in favour of the plaintiffs having enjoyed the passage as an easement both prior and subsequent to 1877 and this in spite of the fact that they then made use of this existing right to attempt to obtain more. I would therefore answer in the affirmative the issue remanded by the High Court.
5. Costs on both sides nil.]
6. This second appeal coining on for final hearing after the return of the finding, the Court delivered the following
JUDGMENT
We accept the finding and dismiss the second appeal with costs.