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T. Rajlu Naidu v. M.E.R. Malak
Factual and Procedural Background
The appeals arise from a suit filed by the plaintiff-appellant concerning adjacent premises that were originally part of land owned by Mt. Laxmi Devi. On 11 April 1908 Laxmi Devi sold a portion to the respondent's father, who around 1922 constructed a building (the Sadar Bazar Mahdibagh Shop) on part of that site. Laxmi Devi sold the residue to the appellant by sale deeds dated 24 June 1919, 5 March 1921 and 22 October 1927.
The appellant alleged that, during construction in 1922, the respondent encroached onto Laxmi Devi's land along the southern and western walls (varying widths described), constructed a projecting wooden gallery, opened windows and ventilators projecting over the appellant's land, and erected a bathroom and lavatory discharging onto the appellant's land. The appellant also alleged wrongful use of the open space between the premises as a passage for carts and a sweeper, and further encroachments by construction of a pucca drain and two chabutras.
The trial Court dismissed the suit in its entirety. The lower Appellate Court allowed part of the appellant's claim and ordered: (a) removal of the western gallery; (b) shutters of the door above the gallery and windows below to be fixed to open inside the respondent's building and not on appellant's land (or to be carried out by the appellant at respondent's expense if the respondent failed to do so); and (d) restraint on the respondent using the land south of his building as a way for sweepers to clean his latrine. The remainder of the appellant's claims were dismissed. Both parties appealed; this opinion disposes of the appeals together.
Legal Issues Presented
- Whether the respondent had encroached upon the appellant's land (including by building parts of his shop, drain, chabutras, and projections) and, if so, the extent and location of that encroachment.
- Whether the respondent had acquired, by prescription, a right of way (easement/casement) over the open space between the premises, and if so, whether that right included the use of the way by a sweeper for cleaning the respondent's latrine (i.e., whether the prescriptive right extended to conservancy purposes).
- Whether the projection of a gallery and projecting shutters constituted actionable trespass and whether the plaintiff's claim in respect of those projections was barred by limitation.
Arguments of the Parties
Appellant's Arguments
- The respondent encroached on the appellant's land along the southern and western walls by constructing parts of the shop, a drain, two chabutras with steps and related works.
- The respondent did not acquire any right of way for passage of carts over the open space between the two premises and any such use was not proved to be as an easement “as of right.”
- As to projections (gallery and shutters), the appellant claimed proprietary rights in the land beneath and sought relief against the encroachments, subject to limitation challenges.
Respondent's / Defendant's Arguments
- The respondent contended that the open space between the buildings had been used by him, his servants and carts from 1908 onwards and he had thereby acquired a prescriptive easement (right of way) prior to the suit instituted in 1933.
- Regarding the sweeper and conservancy use, the respondent relied on authorities holding that a general right of way may include admission of scavengers to clean a latrine, arguing such use should be implied.
- Concerning the gallery and projections, the respondent asserted either that the land behind the shop formed part of his property or otherwise resisted orders for demolition and sought to limit remedy or pay for the occupation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 27 NLR 213 (1931) 18 AIR Nag 189, 134 IC 673 | When a Court only considers various documents as pieces of evidence (inference of fact), that inference is not open to challenge in a second appeal. | Used to support the concurrence of the lower Appellate Court's factual finding on encroachment/measurements and to reject the appellant's challenge to those findings. |
| 49 Mad 820 (1926) 13 AIR Mad 728, 96 IC 968 (FB) | That making an unfounded claim to be owner in litigation does not necessarily finally preclude claiming the benefit of an easement; onus is factual. | Relied upon to reject the appellant's argument that the respondent's suit for specific performance (claiming rights under contract) meant he had the animus of an owner and so could not acquire an easement by prescription. |
| 56 Bom 427 (1932) 19 AIR Bom 513, 139 IC 571 | Cited in relation to the interplay between claims of ownership and claims to easements. | The Court observed the intermediate case (56 Bom 427) where the claimant asserted ownership; distinguished that case from the facts here because the respondent's suit asserted only a personal (in personam) contractual right. |
| AIR 1935 Cal 282 (1935) 22 AIR Cal 282, 155 IC 833 | Referenced among authorities on ownership assertions vs. easement claims. | Noted as not being in point for the issue before the Court. |
| (1915) AC 599; (1915) 2 AIR PC 131 (Privy Council) | Rule that a person who enjoys a right under the belief that he is owner does not acquire an easement by prescription (i.e., enjoyment as owner negatives acquisition of easement). | Applied as a general principle but the Court held it did not apply on these facts because the respondent's litigation asserted a personal contractual right, not ownership. |
| 16 Bom 592 (1892) 16 Bom 592 | Case where claimant sought an easement by right of ownership—held inconsistent with enjoyment as of right as an easement. | Distinguished on the basis that the defendant here never claimed ownership while exercising the right of way. |
| 8 CWN 359 (1904) 8 CWN 359 | Relates to proof of user and whether such user is permissive or as of right. | Referenced for the proposition that onus lies on the claimant but that circumstantial proof can found a presumption of enjoyment "as of right". |
| 19 IC 66 (1918) | Authority supporting the view that long user can give rise to a presumption that the enjoyment was "as of right". | Counted among authorities favoring a presumption from open and notorious long user; used to sustain the appellate Courts' finding that the respondent's user since 1908 was as of right. |
| 18 IC 211 (1912) | Authority cited on presumption from long user. | Included among supporting authorities for presumption that open and notorious user is prima facie "as of right". |
| 25 IC 499 (1914) 1 AIR All 407 | Authority cited for the presumption arising from long user. | Relied upon as part of the body of authority that long, open user may create a presumption of right. |
| 56 Cal 927 (1929) 16 AIR Cal 542, 119 IC 293 | Support for the view that long user may lead to presumption the enjoyment was "as of right". | Counted among decisions endorsing presumption from open and notorious user; used to uphold findings of prescriptive right of way. |
| 45 Mad 633 (1922) 9 AIR Mad 5 | Authority taking a different view (not endorsing the English rule that mere long user suffices) — cited as contrary authority. | Not adopted; acknowledged as part of divergent Indian judicial opinion but the Court accepted the line supporting presumption from open user in these facts. |
| 45 Bom 1027 (1921) 8 AIR Bom 430 | Authority rejecting long user alone as proof of easement. | Not followed on these facts; Court noted divergence but relied on authorities and circumstances supporting prescriptive acquisition here. |
| AIR 1925 Lah 344 (1925) 12 AIR Lah 344 | Authority cited among cases skeptical of presumption from long user. | Not followed for the reasons explained; the Court relied on contrary authorities and factual circumstances to infer enjoyment "as of right". |
| AIR 1926 Pat 460 (1926) 13 AIR Pat 460 | Authority cited among cases taking a restrictive view on presumption from long user. | Recognized as part of contrary authority but not treated as controlling on the facts here. |
| AIR 1925 Cal 788 (1925) 12 AIR Cal 788 | Another contrary authority regarding presumption from long user. | Not followed; Court explained the divergence of authorities and accepted the line supporting presumption in the present facts. |
| AIR 1923 Nag 192 (1923) 10 AIR Nag 192 | Decisions of the Judicial Commissioner where long user produced a presumption of right. | Included among authorities approving presumption from long, open user; supported the Court's conclusion on prescription. |
| AIR 1925 Nag 270 (1925) 12 AIR Nag 270 | Similar Nagpur jurisdiction decisions endorsing long user presumption. | Relied upon as part of the supporting body of Indian authority for presumption from open user. |
| 16 NLR 76 (1920) 7 AIR Nag 26 | Nagpur decision cited for the proposition that long user raises a presumption of lawful origin. | Used in the same manner as other Nagpur decisions to support prescriptive right findings. |
| 20 NLJ 12 (1939) 26 AIR Nag 69, 171 IC 121 | Decision indicating that proof of open and notorious long user can raise a presumption that the user was "as of right". | Relied on to support the conclusion that the defendant’s user since 1908 warranted presumption of legal origin of the right of way. |
| (1881) 17 Ch D 535 (James L.J.) | Explanation of "as of right" as enjoyment under some right or other and presumption arising from long enjoyment. | Cited to explain the test of "as of right" and to justify presumption from long, open enjoyment of the passage. |
| 31 Cal 503 (1904) 31 IA 75, 8 CWN 425 (PC) | Authority that on proof of enjoyment from time immemorial a presumption of legal origin arises. | Quoted to support the proposition that proof of long enjoyment gives rise to a presumption of a legal origin for the right claimed. |
| 7 Cal 665 (1881) 7 Cal 665 | One of the authorities where general terms of a right of way were held to include right to admit scavengers to clean latrines. | Referred to by defendant's counsel but distinguished because here the right was prescriptive (limited by user) and the latrine post-dated the period of prescriptive user. |
| 38 Mad 141 (1915) 2 AIR Mad 795 | Authority holding that a grant of a general right of way included right to admit scavengers (conservancy use). | Distinguished: these cases involved express grants; here the right was acquired by prescription and its extent is limited to the actual user. |
| 57 Bom 186 (1932) 19 AIR Bom 574 | Authority on scope of right of way including conservancy use where grant was general. | Distinguished for the same reason: respondent did not have a general grant and the latrine was constructed after prescriptive period began. |
| 13 Cal 136 (1886) 13 IA 77, 4 Sar 713 (PC) | Principle that a servitude (easement) acquired for one purpose cannot be lawfully used for another purpose. | Applied to hold that the respondent's prescriptive easement, obtained for particular user, did not extend to sweeper use for the latrine. |
| 24 Bom 188 (1900) 1 Bom LR 658 | Authority holding that a right of way enjoyed for agricultural purposes could not be converted into a way for carrying timber (illustration of limited scope). | Relied upon to support the proposition that a prescriptive right is limited to the particular user established and cannot be extended by implication. |
| 22 Bom LR 1131 (1920) 7 AIR Bom 233 | Decision where defendants having established passage for persons, cattle and carts were held not entitled to use it as a way for sweepers. | Directly relied upon to refuse the respondent’s claim to use the way as a sweeper's passage for latrine cleaning. |
| (1838) 4 M & W 245 | Leading case explaining when a way may be presumed to be used for a variety of purposes. | Quoted to note that broader rights must be shown by proof of varied use; absence of such use confined respondent's prescriptive right to established purposes. |
| 26 Cal 311 (1899) 26 Cal 311 | Case holding that description as a "formed road" does not necessarily support presumption of broader rights. | Used to negate the argument that the formed character of the passage justified presuming rights for all purposes. |
| (1888) 20 QBD 225 (Fry L.J.) | Authority on the characterisation of a "formed roadway" and limits on presuming expanded rights. | Invoked to reject the contention that a formed road status warranted presumption of generalized easement rights here. |
| (1902) 2 Ch 557 | Case explaining distinction between easement of necessity and easement for reasonable enjoyment (referred to in construing Section 13(e) of Easements Act). | Referred to in explaining that the latrine's later construction meant the case did not fall within easement of necessity or continuous and apparent casement. |
| 15 CPLR 163 (1902) | Rule that in case of discrepancy between dimensions and boundaries, the area within boundaries passes whether the quantity is less or more than specified. | Applied to reject the defendant's argument that certain land belonged to him despite deed dimensions; boundaries controlled and favored the plaintiff's title. |
| 13 Mad 445 (1890) | Authority concerning limitation/injunction claims under the Specific Relief Act and their interplay with claims for possession. | Referred to in discussing whether Article 120 or Article 142 of the Limitation Act would apply and whether relief was time-barred; distinguished because plaintiff's relief included possession and defendant denied title. |
| 49 Bom 586 (1925) 12 AIR Bom 373 | Authority on limitation issues for injunction claims (cited with Nag/Cal cases). | Referenced in the limitation discussion but the Court held the combination of possession claim and denial of title meant limitation contentions did not defeat the plaintiff's remedies as applied here. |
| AIR 1926 Nag 25 (1926) 13 AIR Nag 25 | Authority cited in the context of limitation and injunction jurisprudence (Nagpur decision). | Referenced in limitation discussion; Court explained the nature of relief (possession coupled with injunction) and why limitation contention did not succeed here. |
| 33 Cal 203 (1905) | Authority concerning limitation and remedies for trespass/projection-type disputes. | Referred to in the analysis of limitation and the nature of relief sought; supported the view that when title is disputed and possession is sought, limitation analysis differs from a mere injunction claim. |
| 29 Mad 511 (1906) 16 MLJ 281 | Decision treating projection (cornice) overhanging neighbour's land as actionable trespass. | Applied by analogy to hold the gallery projecting over the plaintiff's land was trespass and rightly ordered to be demolished. |
Court's Reasoning and Analysis
The Court proceeded in a series of analytical steps, grounded in the record and established legal principles as cited:
- Encroachment/Measurements: The lower Appellate Court compared the respondent's sale-deed description (11 April 1908) with the actual building measurements and concluded there was a small encroachment (3'7") but found it lay towards the northern side of the respondent's building. The present Court emphasized that where facts rest on documentary comparison and the lower Court's inference is one of fact, such concurrent findings are not open to interference in a second appeal. The Court found the lower Appellate Court's factual conclusion concurrent with the trial Court and supported by recitals in the appellant's sale deeds; therefore no legal error made the finding vitiated.
- Existence and Character of Prescriptive Easement: The Court identified that the lower Appellate Court found the open space was used by the respondent, his servants and carts from 1908 and thus a prescriptive easement had arisen before the 1933 suit. The appellant argued the user was not "as of right" and that intervening litigation (1927–1931) in which the respondent sought specific performance showed he had claimed ownership and so could not have acquired an easement. The Court analyzed the nature of that 1927 suit and concluded it asserted only a right in personam (contractual/equitable right) and did not amount to asserting ownership; Section 54 of the Transfer of Property Act was invoked to show an agreement to sell does not of itself create an interest in the property. On that basis, the Court rejected the appellant's contention and held the respondent's user could be prescriptive.
- "As of Right" and Presumption from Long User: The Court reviewed divergent Indian authorities on whether long user alone suffices to establish user "as of right." Citing decisions that favor a presumption from open and notorious long user, and applying the circumstances of the case (the land being set apart as a passage, relations between parties not showing permission, and the naturalness of the use for beneficial enjoyment), the Court accepted the presumption that the respondent's user since 1908 was "as of right." Consequently, the appellant's challenge on this point was overruled.
- Extent of Prescriptive Right — Conservancy (Sweepers) Use: The Court then addressed whether the prescriptive right included use by a sweeper for latrine cleaning. It distinguished cases where a grant in general terms included such rights (admission of scavengers) because those involved express grants. Here the respondent's right arose by prescription, and the latrine at the contested location was not built until 1922 (after the start of the claimed user in 1908). The Court held that a prescriptive servitude is limited to the particular mode of enjoyment by which it was acquired; it cannot be extended to new purposes not shown by the customary user. Relying on authorities and Section 28(a) of the Easements Act, the Court concluded the sweeper's use for latrine cleaning was not within the established prescriptive right, and the period required to acquire such a right for that purpose was interrupted by the suit.
- Gallery and Projecting Shutters — Title, Trespass and Remedy: The Court accepted the lower Appellate Court's concurrent finding that the gallery projected over the plaintiff's land and that the plaintiff was de jure owner of the land beneath. Applying the rule that landowner owns to the heavens and center of the earth, the Court treated the gallery as trespass and ordered demolition. For projecting shutters whose intrusion was nominal and produced no present practical use to the plaintiff, the Court allowed an alternative remedy: the defendant may comply with the lower Appellate Court's order (fix shutters to open inward) or pay Rs. 1 per annum as rent for that occupation.
- Limitation Point: The Court considered limitation arguments (Article 120 vs Article 142 of the Limitation Act) and decided that because the relief sought included possession and the defendant contested title to land beneath the projections, the cause of action was not a simple injunction under the Specific Relief Act; thus limitation arguments did not bar the relief sought in the manner the defendant contended.
- Conclusion on Appeals: Based on the above reasoning — accepting concurrent factual findings on encroachment, finding a prescriptive easement for carts/persons/servants but not for sweeper use, upholding orders for removal of gallery and regulation of shutters (with alternative rent), and dismissing limitation defenses — the Court concluded the plaintiff's appeal must fail in respect of most claims and that both appeals substantially failed.
Holding and Implications
Holding: Both appeals are dismissed.
Direct consequences and orders (as derived from the judgment):
- The lower Appellate Court's decree is upheld in substance: the respondent must remove the western gallery and adjust the shutters/windows so they open inside his building and not over the appellant's land; if the respondent fails, the appellant may have the work done through the Court at the respondent's expense.
- The respondent is restrained from using the land south of his building as a way for sweepers to clean his latrine (the prescriptive easement did not include this conservancy use).
- As to the projecting shutters (nominal intrusion), the respondent is given the option to comply with the lower Appellate Court's order or pay the appellant Rs. 1 per annum as rent for that occupation.
- Both appeals are dismissed with costs. Costs of the Courts below are to be paid as ordered by the lower Appellate Court. Counsel's fee of Rs. 50 is awarded in each appeal.
The Court emphasized that it did not lay down any novel legal principle beyond applying established authorities: factual findings on encroachment were treated as concurrent and not open to reversal in second appeal; prescriptive rights are limited to the scope of actual user; express grants may be construed to include conservancy uses, but prescriptive rights cannot be expanded beyond the user by which they were acquired.
1. This appeal and Second Appeal No. 381 of 1936 arise out of a suit filed by the appellant in this appeal, which had been dismissed in toto by the original Court but was partially decreed in the lower Appellate Court. This judgment governs the disposal of both the appeals. The parties now own premises which are adjacent to each other. At one time, the land comprising them was owned by Mt. Laxmi Devi, appellant's sister. On 11th April 1908 she sold a portion of the premises to the respondent's father, who about the year 1922 constructed a building which is now known as the Sadar Bazar Mahdibagh Shop on a part of the site purchased by him. Laxmi Devi sold the residue of the premises to the appellant under sale deeds, dated 24th June 1919, 5th March 1921 and 22nd October 1927. The appellant's case was that the respondent, while constructing his building in 1922, encroached upon Laxmi Devi's land along the whole length of the southern wall varying in breadth from 1½′ to 9¾′ and along the whole length of the western wall from 1¼′ to 4¼′, that he constructed a wooden gallery projecting from the western wall, that he opened some windows and ventilators in the ground and first floors of his building and constructed a bathroom and a lavatory touching the southern wall of his building with the night-soil aperture opening on the appellant's land, that the respondent was wrongfully using the open space lying between the two premises as passage for his carts and sweeper that he had also further encroached on the appellant's land by constructing pucca drain and two chabutras with steps below two doors D-1 and D-2 (marked in the map). The suit was hotly contested by the respondent and it was wholly dismissed in the trial Court.
2. The lower Appellate Court granted a decree to the appellant as follows: (a) The respondent shall remove the gallery on the west; (b) he shall fix the shutters of the door above that gallery and the windows below that gallery, in such a way that they open inside his building and not on the land of the appellant; (c) if the respondent fails to carry out these directions, the appellant will be at liberty to get them carried out through Court at the expense of the respondent; and (d) the respondent is perfectly restrained from making, use of the land on the south of his building as a way of sweeper for cleaning his latrine. The rest of the appellant's claim was dismissed. Both parties have filed separate appeals. I Shall first deal with the plaintiff's appeal. Two points are pressed: (1) that the respondent encroached towards his southern side by building a part of his shop, drain, chabutras etc., (2) that the respondent did not acquire right of way for the passage of carts over the open space intervening the two premises. The first point does not involve any question of law. The lower Appellate Court compared the extent of the area covered by the respondent's building with the measurements and other description contained in his sale deed, dated 11th April 1908 and came to the conlcusion that he had encroached on 3′ 7″ of land. It however found the encroachment to be towards the northern side of his building. That sale deed mentions the existence of a verandah and steps leading up to it on the southern side. The western and southern boundaries are described therein as being respectively the site and house of Laxmi Devi and the Avar (compound) and tabelas (stables) of Laxmi Devi. Examining the sale deeds in favour of the appellant the lower Appellate Court found that the appellant was entitled to 87′ north to south along the Besidency Boad, but that he was actually in possession of 89′ 2″, that is, 2′ 2″ in excess of what was transferred to him. This conclusion of fact is as sailed here on the ground that the lower Appellate Court misunderstood the various instruments of title. It was pointed out in 27 NLR 213 (1931) 18 AIR Nag 189 , 134 IC 673 , 27 NLR 213 that when the Court only considers various documents as mere pieces of evidence involving no question of construction, its inference of fact is not open to challenge in second appeal. It must be borne in mind that the lower Appellate Court's finding is concurrent with that of the original Court and it receives support from the recitals in the appellant's sale deeds of 1919 and 1927 (Exs. P-2 and P-3) as to the boundaries of premises sold to the appellant. The land sold to the appellant was described as being bounded inter alia by the Mahdibagh shop, and there is absence both in the sale deeds and Ex. P-13 of any complaint as to this particular encroachment by the respondent. There are also other considerations in support of the lower Appellate Court's finding but it is unnecessary to go into further details as I am not satisfied that the finding is vitiated by any error of law or that it is otherwise manifestly unreasonable or perverse.
3. The other point relating to casement no doubt raises a question of law. The lower Appellate Court's finding is that the open space lying between the two buildings had been used as a passage for the respondent, his servants and carts from 1908 onwards and that he had acquired a right of way to that extent as an casement before the institution of the suit in 1933. It is urged for the appellant that the user was not proved to have been as an casement and as of right. It is necessary here to refer to a litigation between the parties which commenced in 1927 and terminated in 1931. The respondent filed a suit for specific performance on the basis of an agreement of sale alleged to have been executed by Laxmi Devi in respondent's favour on 9th August 1927 affecting the land in respect of which the right of casement is claimed by him. It is argued that inasmuch as in that suit the respondent asserted his claim as owner of the land, he could not be deemed to have used it as an casement. Reliance is placed on 49 Mad 820, (1926) 13 AIR Mad 728 , 96 IC 968 , 49 Mad 820 (FB) 56 Bom 427 (1932) 19 AIR Bom 513 , 139 IC 571 , 56 Bom 427 , 34 Bom LR 1015 and AIR 1935 Cal 282. (1935) 22 AIR Cal 282 , 155 IC 833 , 60 CLJ 412 The first case negatives the contention, the last one is not in point. In the intermediate one, the person who claimed the right of casement claimed also the ownership of the land. It is now a well-established rule of law since it was enunciated in (1915) AC 599 Ltd., (1915) 2 AIR PC 131 , (1915) AC 599 , 84 LJ PC 98 , 112 LT 955 that a person who enjoys a right under the belief that he is an owner, does not acquire an casement. A right of casement is a right which is capable of being acquired in respect of other's land and not one's own. But was this the case here? The right which the respondent asserted in his suit for specific performance was a right in personam against the contracting owner. Section 54 of the Transfer of Property Act, lays down in clear terms that an agreement to sell does not of itself create any interest in or charge on the property. It is evident that an assertion of a personal right against the owner does not imply an assertion of a right, in the property. The one is a right in personam, the other is a right in rem. The very object of the suit of the respondent was to acquire title to the land to the exclusion of any other claimant on the basis of the personal right which the contract of sale created in his favour. It is therefore inaccurate to say that from the time he instituted his suit in 1927 he had the animus of an owner when he exercised his right of passage as before. He was seeking to acquire title which eventually he failed to do. Throughout the course of the litigation he was only asserting an equitable right which is remote from ownership. In 49 Mad 820 (1926) 13 AIR Mad 728 , 96 IC 968 , 49 Mad 820 (FB) at page 830 it was observed 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 owner. Their Lordships further pointed out that the question of onus was one of fact. If that is so, it must, in the circumstances of the present case, be held that the defendant did not claim to be owner while he was exercising his right of way. The appellant's contention must therefore fail.
4. The next question is whether the right of passage was enjoyed as of right. Reference is made to 16 Bom 592 (1892) 16 Bom 592 and 8 CWN 359. (1904) 8 CWN 359 In the first mentioned case the person who claimed to have acquired a right of casement claimed it by right of owner, ship which, in that case, was held to be inconsistent with enjoyment as of right as an casement. In the present case, the defendant never claimed ownership of the land as has been shown already and consequently this case has no application. In the other case, the original Court's finding was that there was no proof of the existence of any way and that even if there was any, it could not be as of right but was permissive. The first Appellate Court failed to determine the question whether the user was permissive or as of right. It was rightly observed that the burden lay on the claimant to prove that his user was as of right but it was clearly indicated that the onus could be discharged by the proof of circumstances which would found a presumption that the user was as of right and not permissive, with due regard to the habits of the people. The judgment cites with approval a passage from an unreported judgment:
The nature and character of the servient land, the friendship or relationship between the servient and dominant owners and the circumstances under which the user had taken place may induce the Court to hold that the enjoyment was not “as of right” although there is no direct proof that the enjoyment was had with the permission of the servient owner.
5. It is pertinent to notice here that the learned Judge who decided the case alluded to the rule in England that evidence of mere user over a long period was by itself sufficient to warrant the inference of the user being as of right, but declined to apply it to India in view of the differing habits of the people. It is true that on the point there is a divergence of judicial opinion in India. This view found favour in 19 IC 66, (1918) 19 IC 66 18 IC 211, (1912) 18 IC 211 25 IC 499 (1914) 1 AIR All 407 , 25 IC 499 and 56 Cal 927; (1929) 16 AIR Cal 542 , 119 IC 293 , 56 Cal 927 , 33 CWN 517 but, on the other hand, it was not endorsed in 45 Mad 633, (1922) 9 AIR Mad 5 , 66 IC 11 , 45 Mad 633 , 42 MLJ 417 45 Bom 1027, (1921) 8 AIR Bom 430 , 62 IC 65 , 45 Bom 1027 , 23 Bom LR 422 AIR 1925 Lah 344, (1925) 12 AIR Lah 344 , 86 IC 595 , 26 PLR 110 AIR 1926 Pat 460 (1926) 13 AIR Pat 460 , 96 IC 1010 and AIR 1925 Cal 788. (1925) 12 AIR Cal 788 , 87 IC 19 , 41 CLJ 379 In the Court of the Judicial Commissioner, C.P, it was consistently held that long user itself gave rise to a presumption of right: see AIR 1923 Nag 192, (1923) 10 AIR Nag 192 , 71 IC 831 AIR 1925 Nag 270 (1925) 12 AIR Nag 270 , 85 IC 81 and 16 NLR 76. (1920) 7 AIR Nag 26 , 54 IC 936 , 16 NLR 76 In our High Court also this view received assent in 20 NLJ 12. (1939) 26 AIR Nag 69 , 171 IC 121 , ILR (1938) Nag 21 , 20 NLJ 12 As pointed out in this case it is no doubt incumbent on the plaintiff to establish that his user was as of right but the law presumes that it is as of right, that is to say it has a lawful origin, if the plaintiff proves open and notorious user. The expression “as of right” was explained’ by James L.J in (1881) 17 Ch D 535 (1881) 17 Ch D 535 , 50 LJ Ch 754 , 44 LT 487 , 29 WR 809 at p. 584 as meaning “a thing which the claimant was entitled to do under some right or another. On proof of the fact of enjoyment from time immemorial, there must arise a presumption of a legal origin for the right claimed: see 31 Cal 503 (1904) 31 Cal 503 , 31 IA 75 , 8 CWN 425 , 8 Sar 611 (PC) at p. 509. Regard being had to the weight of the authorities, the appellant's contention must be overruled. There is evidence, though meagre, to sustain the findings of the Courts below that the defendant was exercising his right of way for himself, for his servants and for his carts since 1908 as appurtenant to his shop. The land on which he exercised his right was and is admittedly set apart as a passage. The relations between the parties were not such as to indicate that the defendant's user was attributable to leave or license; on the contrary the circumstances leave no doubt for the inference that it was regarded as a natural and lawful mode of the beneficial enjoyment of his tenement. It must therefore be presumed that his user was as of right. For the foregoing reasons the plaintiff's appeal must fail.
6. The first point taken in the defendant's appeal is as regards the defendant's right to let his sweeper use the way for purpose of cleaning his latrine. There is ample evidence on the record to sustain the lower Appellate Court's finding that the latrine was built in 1922 at the place where it stands. The question of law which arises is whether the right of way which the defendant acquired as an casement comprised the right to use it also for conservancy purposes. On behalf of the defendant reliance is placed on 7 Cal 665, (1881) 7 Cal 665 38 Mad 141 (1915) 2 AIR Mad 795 , 19 IC 80 , 38 Mad 141 , 24 MLJ 552 and 57 Bom 186. (1932) 19 AIR Bom 574 , 141 IC 686 , 57 Bom 186 , 34 Bom LR 1150 In these cases the right of casement was granted in general terms and it was held that the grant of a general right of way included the right to admit scavengers to clean the latrine. That is a matter of mere construction of a grant. In the present case the defendant had not acquired any right of casement under his sale deed (P-2) from Laxmi Devi; nor does he rely on any grant apart from it. He claimed the casement on ground of prescription and he succeeded in proving his acquisition of that right so far as he, his servants and carts were concerned. His user which culminated in his prescriptive right had begun in 1908 when the latrine was not in existence. In the plan submitted by the defendant to the Municipality in 1922 (P-18) a latrine was shown in the extreme north of the west corner, i.e towards the Dangerfield Road. The lower Appellate Court declined to believe that there was any regular latrine before even at the place shown in the plan. It is significant that Laxmi Devi protested against the construction of the latrine in the place where it stands (see Ex. P. 13). The way could not therefore have been used as a sweeper's passage before 1922. It is clear therefore that the user of the land for this purpose began in or after 1922 and the statutory period of 20 years was interrupted by the institution of this suit in 1933. The defendant seeks to escape out of this difficulty by saying that the passage for sweeper must be presumed to have been acquired as being implicit in the general right of way. The answer clearly is that he did not acquire any general right of way but only for particular purposes already specified.
7. The defendant acquired the servitude by prescription, in consequence of his enjoyment and user in a particular manner and the requisite length of user would only culminate in a right of enjoyment of the particular description and no other. The presumption of constructive enjoyment can no more be made in favour of a person acquiring casement by prescription than the presumption of constructive possession be made in favour of a trespasser acquiring prescriptive title. If there is a grant, it is construed against the grant or but in case of prescriptive right, its extent must be measured and determined by the accustomed user. It is on this principle that a servitude acquired for one purpose cannot lawfully be used for another: see 13 Cal 136 (1886) 13 Cal 136 , 13 IA 77 , 4 Sar 713 (PC) at p. 142. Section 28(a) of the Easements Act, expressly provides that a right of way of one kind does not include a right of way of another kind. In 24 Bom 188 (1900) 24 Bom 188 , 1 Bom LR 658 it was held that a right of way enjoyed for agricultural purposes could not be converted into a way for carrying timber. In 22 Bom LR 1131 (1920) 7 AIR Bom 233 , 59 IC 426 , 22 Bom LR 1131 the defendants who had established their right of passage for persons, cattle and carts were held not entitled to use it as a way for sweepers. The argument that the right of way acquired by the defendants should be deemed to have been acquired for all purposes connected with the beneficial enjoyment of his house cannot prevail unless it was proved that it was used for a variety of purposes in general as was explained in the leading case in (1838) 4 M & W 245. (1838) 4 M & W 245 , 1 H & H 269 , 7 LJ (NS) Ex 265 , 51 RR 555 The contention that it being a “formed road” its user for a variety of purposes should be presumed was negatived in 26 Cal 311 (1899) 26 Cal 311 at p. 313. Fry L.J applied that description in (1888) 20 QBD 225 (1888) 20 QBD 225 , 57 QB 198 , 58 LT 162 , 36 WR 440 , 52 JP 516 to the land which was a formed roadway bounded on either side by turf banks and hedges and which, although it ran through defendant's land, had been used by plaintiff for many years and had been from time to time repaired by him. Nor can such a presumption be based on the circumstance that the houses occupied by the parties had at one time belonged to a common owner unless the way was necessary for enjoying the tenement which was purchased by the defendant. Such a right arises by implication of law and is regarded as an implied grant.
8. I need not dilate on the well recognized distinction made in this particular species of casements viz. those which are casements of necessity and those which are merely necessary for the reasonable enjoyment of the property granted. An casement of necessity is one without which the property retained upon the severance cannot be used at all; it is not one which is merely necessary to the reasonable enjoyment of that property; see (1902) 2 Ch 557. (1902) 2 Ch 557 , 71 LJ Ch 791 , 87 LT 381 , 18 TLR 754 That is the principle underlying Section 13(e) of the Easements Act. In the present case the latrine was not built until 1922 at the place where it stands, that is 14 years after the defendant's purchase of his house, and it cannot be predicated that he was using the way as a passage for his sweepers at that time. Moreover, right of way is not a continuous and apparent casement. The case therefore cannot fall within the terms of Section 13(f) of the Easements Act. An attempt was made to show that it was a way for all purposes for the reason that it was a common way; but, it cannot succeed in view of the fact that the entire land belongs to the plaintiff alone. It is only when the land that is used for passage is found to Belong to both the neighbours that the way might be presumed to be used for all purposes (see Peacock's Easements, p. 511, Edn. 3.) The learned counsel for the defendant contended that a part of the land belonged to the defendant as it was not expressly included in the plaintiff's sale deed, Ex. P-5 dated 22nd October 1927. It must first be remarked that the land which was then being actually used as a passage was specifically mentioned in that sale deed and it must follow that the defendant had no title to this particular piece of land. His having filed Civil Suit No. 32 of 1927=19 of 1928 for specific performance itself refutes the contention. For the foregoing reasons, it must be held that the defendant did not acquire the right to use the way as a passage for his sweepers.
9. The next contention relates to the western gallery overhanging the plaintiff's land and the shutters of the doors and windows, when opened, projecting over the plaintiff's land. In this connexion, it is contended that about 3′ width of land behind the defendant's shop building, i.e towards the west belonged to the defendant. As I see no error of law vitiating the lower Appellate Court's concurrent finding in this behalf, I cannot interfere with it. It is true that neither of the plaintiff's sale deeds of 1919 and 1927 covers some portion of the land on the south of the defendant's shop building, but the lower Appellate Court has given sound reasons why it should be presumed to have been transferred to the plaintiff. The defendant cannot claim anything more than was actually sold to him. The plaintiff purchased by his two sale deeds the residue of the land, and it must be presumed that Mt. Laxmi Devi, the seller, did not intend to reserve any land for herself. Moreover, in both the sale deeds of 1919 and 1927 (P-3 and P-5) she described the defendant's building as forming the boundary of the land sold to the plaintiff. In case of a discrepancy between dimensions and boundaries, the rule is now well established that the area specified within the boundaries will pass whether it be less or more than the quantity specified, (see 15 CPLR 163. (1902) 15 CPLR 163) The contention must therefore fail. It is next urged that, the plaintiff's suit as affecting the gallery and the shutters is barred by time under Article 120 of the Limitation Act. Whether this Article or Article 142 would come into operation depends upon the nature of the relief claimed. The learned counsel who relies on 13 Mad 445, (1890) 13 Mad 445 26 All 391, (1904) 26 All 391 49 Bom 586, (1925) 12 AIR Bom 373 , 87 IC 977 , 49 Bom 586 , 27 Bom LR 503 AIR 1926 Nag 25 (1926) 13 AIR Nag 25 , 89 IC 636 and 33 Cal 203 (1905) 33 Cal 203 , 32 IA 185 , 2 CLJ 408 , 9 CWN 1703 , 8 Sar 908 (PC) would be on firmer ground had the relief been one for injunction simpliciter under Section 54 of the Specific Relief Act, but, in this case, it is coupled with a claim for possession of land and the defendant also asserted his title to the land beneath the projections. The cause of action under Section 54 of the Specific Relief Act, is breach of an obligation existing in favour of the owner. If the defendant had admitted the plaintiff's title to the land beneath, the contention would prevail but his attitude has been otherwise. So far as the gallery is concerned, the defendant was unquestionably a trespasser in view of the maxim “whosoever has the soil, also owns to the heavens above and to the centre of the earth.” This principle was applied in 29 Mad 511 (1906) 29 Mad 511 , 16 MLJ 281 to a case of a cornice overhanging neighbour's land and it was held that the projection constituted a trespass. The gallery has therefore been rightly ordered to be demolished. As regards the projecting shutters the trespass is not so pronounced. It is but nominal and the land is not of any present use to the plaintiff except theoretically as a part of the passage left between the two buildings. Since however the plaintiff is the de jure owner of the land, it is but reasonable that the defendant should pay for his enjoyment of it. I would therefore give him the option either to carry out the lower Appellate Court's order or pay Rs. 1 per annum as rent to the plaintiff.
10. Both the appeals substantially fail and are dismissed with costs. The costs of the Courts below will be paid as ordered by the lower Appellate Court. Counsel's fee Rs. 50 in each appeal.
D.S/R.K
11. Appeals dismissed.
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