Hari v. Mahadeo

1. The appellant sued for a declaration of title and claimed in the alternative that he had acquired an easement by prescription. The lower Court found that the plaintiff had enjoyed the right of way, the right of drawing water from the well, and the right of receiving light and air through the door A for more than 20 years without any interruption. This finding was upheld by the lower Appellate Court. Both Courts, however, dismissed the suit on the ground that the plaintiff had not shown that the enjoyment was as of right. Cases arising in these Provinces must be determined by the provisions of the Easements Act. The words “as of right” do not appear in the clause of Section 15 of the Act which deals with the access and use of light and air. The findings of the lower Courts, therefore, entitle the plaintiff to relief with regard to light and air. I am unable to follow the reasons given by the first Court and adopted by the lower Appellate Court for holding that the plaintiff had failed to show that he enjoyed the other easements as of right. “An open user for the purpose of a road or pathway, if continued without interruption for a long time and not attributable to permission or sufferance,” is prima facie evidence of enjoyment as of right: See Mahamed Ali v. Joogul Ram Chunder (1). It is proved that there was litigation between the parties many years ago. It is unlikely that the plaintiff considered that he drew water from the well or used the right of way as a favour from the defendant.

2. It is suggested that the plaintiff took water from the well because he claimed the well but he claimed that property in the well was given to him along with the dominant tenement.

3. If, relying on that claim, he used the well he must be considered to have claimed that the right to use the well at least accrued to him with that tenement. There is no reason for me to interfere with the decision regarding the ownership of the land, but the decree of the lower Appellate Court is set aside and the case is remanded to that Court. That Court should pass a decree which will enable the plaintiff to continue to enjoy the right of way, the right of drawing water from the well, and the right to receive light and air through the door A. Costs in this Court will be costs in the suit.

4. Decree set aside.