Sen and Niamat-Ullah, JJ.:— [The judgment set forth the facts in detail, which, so far as material for the purpose of this report, were as follows: There was a plot of land lying between the homesteads of the parties, who were neighbours. The defendants enclosed the plot by putting up boundary walls. The plaintiff sued for possession of the land, by removal of the boundary walls, in the right of ownership. In the alternative he claimed a decree for his right of casement of way through his southern-door and the right to discharge water from his drain across the land in dispute.]
Considerable stress has been placed upon the form of the suit and the nature of the reliefs claimed and it has been contended that no suit is maintainable for a declaration of a plaintiff's title to, and his right of casement over, the same property. It is manifestly clear that the two concepts are incompatible. “An casement” has been denned in section 4 of the Indian Easements Act (Act V of 1882) 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.” This definition is founded upon the maxim nulli res sua servit. In Lady man v. Grave (1), Lord, Hatherley is reported to have said: “You cannot have the land itself and also an casement over it.” It is essential for the creation of an casement that there should be two distinct heritages, that the two heritages must not belong to the same individual and that there must be some advantage derived by one tenement from or upon a, neighbouring tenement greater than what would naturally and ordinarily belong to the former. (The Law of Limitation and Prescription, Tagore Lectures, 1882 p. 357). No plaintiff can be allowed to take the impossible position of being the owner of and of having a simultaneous right of casement over the same land. Where the averments in the pleadings and the reliefs claimed are of a conflicting character, the court must insist upon an election on the part of the plaintiff to chose one or other of the reliefs and upon an amendment of his plaint accordingly. Not to do so would necessarily lead to waste of time and embarrassment of trial. Unfortunately, the plaintiff was not put upon his election and the trial proceeded upon conflicting pleadings. Cases are concievable where a plaintiff may, from obscurity or from complexity of facts, be in honest doubt as to the nature of the relief available to him. Inconsistent claims may, therefore, under the peculiar circumstances, be explained and accounted for. In the present case there could be no reasonable excuse for the inconsistent reliefs claimed by the plaintiff. The land in dispute was outside the plaintiff's purchase and within the boundary of the property purchased by the defendants. The parties were close neighbours. It was impossible for the plaintiff not to have known that he was not the owner of the property in dispute. His claim, therefore, to ownership was not only unwise but was deliberately dishonest.
The reliefs based upon ownership and upon the right of casement were not claimed simultaneously but he the alternative. While we condemn the action of the plaintiff for having asked for inconsistent reliefs, we are of opinion that the plaintiff should not be penalized by a total dismissal of his suit where the reliefs claimed by him are in the alternative. The defendant appellant strongly relies upon certain dicta of the Privy Council in Mahomed Buksh Khan v. Hosseini Bibi . This case was considered by a Bench of this Court in Jino v. Manon (2) and it was held that the Privy Council decision was tot authority for such a broad proposition as is now enunciated by the defendant appellant. It was accordingly held that where a plaintiff claimed in his plaint two alternative reliefs which were inconsistent with each other, that fact was no ground in itself for the dismissal of the suit. In Ram v. Mani Ram (3), it was held that a suit was not liable to dismissal because the plaintiff claimed in the alternative over the same plot of land both by the rights of ownership and of casement. A similar view was taken in Narendra Nath Barari v. Abhoy Charan (4), and it was remarked that “the inconsistency of the two allegations may be, and probably would be, a ground for viewing them both with the greatest suspicion but does not, as a matter of pleading, render the suit not maintainable.” This view is supported in principle by a Full Bench decision of the Madras High Court in Subba Rao v. Lakshmana Rao , in which, though the facts were somewhat different, the court remarked: “In is clear that a man is not finally precluded from claiming the benefit of an casement merely because in the course of legal proceedings he made an unfounded claim to be the owner, however strongly the making of such a claim might weigh against him.” We are therefore of opinion that the action was not liable to dismissal merely on the ground that the plaintiff had asked for inconsistent but alternative reliefs.
Mr. Bagchi, for the defendant appellant, who argued the case with considerable skill contended that the plaintiff's claim for an casement was not maintainable on the ground that the mere user on the part of the plaintiff during the statutory period could not mature into an casement by prescription under Section 15 of the Indian Easements Act, where the user was not accompanied by an animus of enjoying the casement as such. He strongly relies upon the decision of the Madras High Court in Subba Rao's case which has already been adverted to. It was held in this case that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an casement. Reference was made to Lyell v. Hothfield , in support of this view. Section 15 of the Indian Easements Act provides that “where a right of way or any other casement has been peaceably and openly enjoyed by any person claiming title thereto, as an casement and as of right, without interruption and for twenty years, the right to such … use of … or casement shall be absolute.” It is clear, therefore, that for the creation and maturity of the right of casement it is essential that the right should be openly and peaceably enjoyed by the holder of the dominant tenement for the prescriptive period “as an casement and as of right.” In order that the user should be an casement and as of right, it is absolutely essential that the said right should be claimed ever the property of another and for the beneficial enjoyment of a property which belongs to the owner. From the very nature of the conception, casement is rather a fringe to property than property itself. We are, however, of opinion that the proposition of law enunicated by Mr. Bagchi does not call for a definite finding, having regard to the facts and pleadings involved in the case.
It does not appear to have been argued in either of the courts below that the plaintiff did not possess the requisite animus because he was claiming to be the owner of the property itself. We are clear that the plaintiff was not the owner of the servient tenement and was labouring under no delusion as to his rights in respect of the same. During the twenty years and more that he exercised a right of user over the property of the defendants he did so with a clear consciousness that the said property belonged to another. He does not appear to have put forward a right of ownership before the present suit was launched. The question of animus is in each case a question of fact. Where the owner of one property exercises certain rights of enjoyment over the property of another for the beneficial enjoyment of the former, he must be presumed to possess an animus which is manifestly to his advantage. The lower appellate court in holding that the plaintiff had established the rights of casement claimed by him, must be taken to have found by implication that the animus indicative of a right of user over the property of another was either to be presumed from the facts of the case or was established by evidence. We do not think, therefore, that it is necessary to send down an express issue on a point which was neither specifically raised in the written statement nor argued in any of the courts below. We dismiss the appeal and the cross objections with costs.