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.