Nachiparayan v. Narayana Goundan

The contention of the appellant in this case is that he enjoyed a right of way, over the 1st Respondent's land peaceably and without interruption for a period of twenty years. But it is found that for 4 years before the institution of the suit, the plaintiff did not enjoy any such right of way, being effectively prevented from doing so by the 1st respondent. These being the facts, the learned District Judge held that the plaintiff's suit failed by virtue of the provision of Sect. 15 of the Easements Act, that “each of the said periods of 20 years shall be taken to be a period, ending within two years before the institution of the suit, wherein the claim to which such period relates is contested.” The argument on behalf of the appellant is that since the appellant had enjoyed for a period of 20 years, the right claimed by him peaceably, openly, and without interruption, it made no difference that for 4 years before the institution of the suit he was prevented from using the path way, in as much as he never submitted to it, but protested against such obstruction. He relies on Explanation (2) to Sect. 15, which lays down that “nothing is an interruption within the meaning of the section, unless where there is an actual cessation of the enjoyment, by reason of an obstruction, by the act of some person, other than the claimant and unless such obstruction is submitted to, or acquiesced in, for one year, after the claimant has notice thereof. This argument, if given effect to would really abrogate the condition laid down in that very section, that in order to the right of easement being acquired, the enjoyment of such right must not only be peaceable, open and without interruption, but such enjoyment must extend to within two years before the institution of the suit. The language of the section seems to be clear that the enjoyment for a period of 20 years must terminate within two years perior to the institution of the suit; otherwise the enjoyment of a right contemplated in Sect. 15 for a period of 20 years, however long prior to the institution of the suit, would give a person who so enjoyed it an absolute right of easement although for years prior to the suit he never exercised such right at all. That would be really violating the policy apparently underlying the law of Easements.

The English law of easements on which the Indian Law of Easements is practically based, though with some difference, as has been pointed out in some of the cases in this Court, requires that the 20 years' enjoyment of the right must be next previous to the institution of the suit. That is what the English Statute requires, and this is explained in Glover v. Coleman, by Mr. Justice Brett as he then was. The same view of the law is taken for granted in Flight v. Thomas. The Indian Legislature in this connection has departed from the English law to this extent, that it lays down that it would be sufficient that the enjoyment for a period of 20 years extended to within two years before the institution of the suit, instead of being immediately previous to the institution of the suit, and the rulings of the Indian Courts are unanimous on the point. In this Court the law is explained in Muthu Goundan v. Anantha Goundan; in the Allahabad High Court in Sultan Ahmed v. Waliullah, and in Muhammed Maruf v. Sultan Ahmad; and in the Calcutta High Court in Janhavi Chowdhurani v. Bindhu Bashini Chowdhurani, and in Juggernath Barj v. Kanai Das Byragi. As pointed out by Chamier, J., in Sultan Ahmed v. Waliullah, the result of the Easements Act and the similar provisions of the Limitation Act is that a right of easement cannot be said to be perfected until the right is declared by the decree of Court, that is to say, a person may enjoy a right of way, or a right to access of light and air, over the servient tenement for a period of 20 years, but if he is interrupted afterwards for one year and that interruption is acquiesced in, the benefit of the previous enjoyment will be destroyed unless he comes within two years of the suit and gets a decree declaring his right.

It was also suggested by the learned vakil for the appellant that his client had an immemorial right and that in the circumstances a lost, grant ought to have been presumed in his favour. But this question was not properly raised in the trial Court.

The result is that the second appeal is dismissed with costs.

S.SAppeal dismissed.