1. This second appeal arises out of a suit brought on 25th June 1915 to obtain an injunction directing the defendant to allow the plaintiff a way at one of two points in the eastern wall of the defendant's compound and thus afford access to the eastern door of the plaintiff's dwelling-house. The injunction was granted by the trial Judge, whose decree was reversed in appeal by the Additional District Judge. The plaintiff has come here in second appeal. The plaint alleges that the plaintiff's dwelling-house was constructed by his father and grandfather 30 or 32 years before the suit, but it is now common ground that the construction took place in the middle of 1888, i.e, 27 years before this litigation began. The existence of a right of way was pleaded, being based on a presumed grant and also on acquisition in the manner laid down in Section 15 of the Basements Act, 1882.
2. There is a public road immediately to the east of the defendant's compound and the right of way claimed by the plaintiff is said by him to have been originally exercised over the ground between the south-east corner of the compound and the plaintiff's eastern door. He further pleaded that seven or eight years before the suit the defendant built a wall on the east of his (defendant's) compound, but left a passage at the south-east corner through which the right of way continued to be exercised. The cause of action was said to have arisen in January 1915, when the plaintiff having evacuated his house on account of plague, the defendant closed the passage at the south-east corner of the compound and made a new opening further north nearly opposite the plaintiff's eastern door. The plaintiff assumed that this new passage was meant to be substituted for the original one and used it accordingly till the beginning of June 1915, when he was obstructed and refused further access. The defendant pleaded that the plaintiff's house was built in 1898, that no right of way was ever enjoyed through either of the spots mentioned in the plaint, that the south-east corner was closed three years back, that the plaintiff never passed through the northern opening and that the northern opening was made in 1913. The trial Judge found that the plaintiff's house was built in 1888; that a gate had been constructed at the southeast corner of the defendant's compound 10 or 12 years before the suit; that the gate was closed less than a year before the suit; and that for more than 20 years prior to the closing of the gate the plaintiff has enjoyed a right of way in such a manner as to acquire a right under Section 15 of the Easements Act. Issues 4 and 5 framed run as follows:
“(4) Whether plaintiff lost his right of way in question by his non-user for more than two years prior to the suit owing to the closing of the gate as alleged by the defendant?
(5) Does or does not the closing of the gate CD amount to interruption?”
3. It was no part of the defendant's case that even if the gate was blocked three years before the suit the obstruction did not constitute an interruption within the meaning of Section 15 of the Easements Act. Explanation 2 to that section is in the following terms:
“Nothing is an interruption within the meaning of this 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 and of the person making or authorizing the same to be made.”
4. This provision has not been referred to by either of the Courts below. In appeal the Additional District Judge found that the plaintiff's house was constructed in 1888, and assumed in his favour that the eastern door was opened at the same time; he also found that the plaintiff had enjoyed a right of way from the south-east corner of ‘the defendant's compound as an easement for more than 20 years as of right, without interruption, peaceably and openly, but that the gate at the aforesaid spot was closed before 26th September 1913, and that the plaintiff had therefore failed to discharge the burden of showing enjoyment for a period of 20 years ending within two years next before the institution of the suit. The plaintiff's plea that a grant should be presumed from long user was fully considered and rejected. The result was, as already stated, that the claim was dismissed. In second appeal the first point pressed is that a grant of the right of way should have been presumed. Reliance is placed upon the following cases as indicating that enjoyment for 25 years furnishes an ample basis for such a presumption:
Ponnusawmi Tevar v. Collector of Madura [1869-70] 5 M.H.C.R 6, Kisto Mohun Mookerjee v. Juggurnath Roy [1869] 11 W.R 236 and Koylash Chunder Ghose v. Sonatun Chung Barooie [1881] 7 Cal. 132.
5. All these cases were decided prior to the enactment of the Easements Act. In the first Scotland, C.J, remarked as follows:
“In the absence of any definite law of prescription, 1 think, the proper general rule to be acted upon is that the grant of an easement may be presumed from mere continued user of the privilege openly enjoyed by the occupiers of the dominant tenement as of right throughout any long period of time without interruption on the part of the Proprietor of the servient tenement, but with this qualification that the user should be for at least the period of adverse possession which is prescribed by Section 1, Cl. (12) of the Act of Limitations as a bar to the enforcing of a title to corporeal property. The 20 years' user from which an easement is presumable by the English Law was no doubt adopted with reference to the period of limitation barring the right of suit for the recovery of land, and it would, it seems to me, be an unreasonale inconsistency in the law that a right by prescription to a servitude upon land might be acquired by enjoyment, which, if had of the land itself, would not suffice to give a similar right to the possession of the land.”
6. In the second Jackson, J., remarked:
“Cases are quite conceivable in which the plaintiff might not be able to give evidence of actual use for more than four or five or six years, and yet the circumstances might be such that a Court would be warranted in inferring the existence of a right.”
7. In the last the learned Judges (Garth, C.J, and McDonell, J.) indicated an obiter dictum at the close of their judgment that after 25 or 30 years' enjoyment the Court might presume a right unless the contrary could be shown: they treated the case in fact as governed by Section 26 of the Lim. Act, 1877, and no question whether a grant should be presumed or not arose for decision. In England the question whether a grant should be presumed seems to be treated as one of fact: see Duke of Norfolk v. Arbuthnot [1880] 5 C.P.D 390 , 49 L.J C.P 782 , 43 L.T 302 , 44 J.P 796. In this country opposite views on this point were expressed by Markby, J., and Peacock, C.J, in Bagram v. Khettranath Karformah [1869] 3 B.L.R (o.c) 18. The Chief Justice however laid down that the uninterrupted enjoyment for 20 years, which raised a presumption of right amounting to a presumption of law, must have been acquiesced in by the owner of the servient tenement. In the present case, as I understand the lower appellate Court's judgment, the learned Judge was not satisfied that the defendant had knowledge of the plaintiff's user of the way. That knowledge is an essential condition to the acquisition of an easement where the Court is asked to presume a grant appears from the judgment of Couch, C.J, in Bhubun v. Elliot [1871] 6 B.L.R 85, see also the judgment of Garth, C.J, in Arzan v. Bahkal Chunder Roy [1884] 10 Cal. 214. It is also clear from Exs. P-1 to P-8, a set of papers belonging to the Court of Wards which had the management of the defendant's estate from 1892 to 1912, that the defendant was in that year desirous of denying and did actually deny passage through the south-east corner of his compound even to Rao Sahib Pratapji Sirke (P.W 9), whose house was granted to him by the defendant's father and cannot be reached except by that way. The erection of the gate at the corner shows that the defendant was not only not acquiescing in the exercise of any right of way there but actively opposed to it, and that opposition was only overborne by the Deputy Commissioner whose decision of 22nd March 1909 was based on the fact that the Rao Sahib, who had applied to him on 8th February to have the gate opened, could not get to his house except through the gate. Ex. P-3 shows that the Rao Sahib's passage was obstructed as far back as 1908. There is room for doubt as to the defendant's knowledge and it seems clear that he actively obstructed passage through the south-east corner of his compound in 1908. In these circumstances I think there would be no legal basis for a finding that a grant ought to be presumed. The second ground of appeal proceeds on the assumption that a prescriptive acquisition as distinct from one under Section 15 of the Easements Act has been made out. This assumption not being justified, the ground does not require separate consideration.
8. The third ground is rested upon Expln., 2, Section 15 of the Easements Act, the terms of which have already been quoted. It is urged that the defendant did not plead any submission to or acquiescence in the obstruction complained of on the plaintiff's part. It is correctly pointed out that in order to negative submission the party interrupted need not have brought a suit: see Subramaniya Ayyar v. Ramchandra Ran [1876-78] 1 Mad. 335 and Glover v. Coleman [1864] 10 C.P 108 , 44 L.J C.P 66 , 31 L.T 684 , 23 W.R 163; also Bennison v. Cartwright(10). The two cases last cited are also authorities for the proposition that the question whether for the purposes of Section 4 of the English Prescriptions Act (2 and 3 Will. 4, c. 71), which restricts the meaning of “interruption” in a way similar to that in the Explanation now being considered, there has been submission to or acquiescence in an obstruction is one of fact. The plaintiff's case is that he closed the gate at the south-east corner three years before the suit and the lower appellate Court's finding is in his favour on this point. I think it was for the defendant to allege any ground he might have to rely upon for the view that he did not submit to acquiesce in this obstruction. As remarked by Brett, J., in Glover v. Coleman [1864] 10 C.P 108 , 44 L.J C.P 66 , 31 L.T 684 , 23 W.R 163 (above cited) at p. 119 (of 10 C.P), to ascertain whether the claimant to an easement submitted to an obstruction calls for inquiry into the state of mind of the person said to have submitted and whether his state of mind was made apparent by either expressions or acts. The same learned Judge understood by “submission” submission without satisfaction and without any direct act of opposition but made apparent by some expression or some act. It seems to me that the burden of negativing submission should be placed on the defendant, the matter being one within his special knowledge: see Sections 103 and 106 of the Evidence Act. And as I understand the judgments in Glover v. Coleman [1864] 10 C.P 108 , 44 L.J C.P 66 , 31 L.T 684 , 23 W.R 163 both Brett and Grove, JJ., treated the question as in effect one as to whether the claimant to the easement had not submitted to or acquiesced in the obstruction, the burden being upon the claimant. In the present case there could hardly have been a more effectual obstruction than the closing of the gate, and it is not suggested that the evidence shows the plaintiff to have done anything by way of remonstrance after moving the Deputy Commissioner in his undated application (Ex. P.) which was presented on 26th September 1913. That application prayed for an inquiry and mentioned that one made a year previously asking for a copy of the order on previous complaints of obstruction in 1908 and 1909 had not been disposed of the management of the estate having already been relinquished, the plaintiff was merely informed that the copy asked for would not be granted. I hold that it is now too late for the plaintiff appellant to urge that in view of Expl. 2, Section 15 of the Easements Act, his enjoyment really lasted to a date within two years before the institution of the suit, inasmuch as he did not for one year after notice of the obstruction and of the person making it submit to or acquiesce in it.
9. The fourth ground of appeal attributes to the lower appellate Court the view that in order to negative submission or acquiescence the dominant owner is required to bring a suit. No passage in the judgment of that Court can be pointed to as warranting this inference. Indeed it would appear from the omission to make any reference to the Explanation that the plaintiff relied before the Additional District Judge merely on his allegation that the gate was closed within one year before the suit.
10. The fifth ground of appeal has reference to Exs. P-9 and P-10. P-10 is the earlier application for a copy of certain orders of which mention has already been made. It is urged that Ex. P-9 shows that the plaintiff was determined in September 1913 not to submit to the obstruction caused by the closing of the gate. The suit was filed on 25th June 1915, and the gate was closed about June 1912. Ex. P-9 is therefore more than one year subsequent to the closing of the gate and as already remarked, there was no plea by the plaintiff in the Court of first instance which called for consideration of Expl. 2. The sixth ground of appeal raises an entirely new point, namely, that when the gate was closed access through a small subgate within it was still possible and that complete closure of the entire gate could not have taken place until an opening was made further north in the compound wall, inasmuch as the defendant himself required access to the compound. Here again we have questions of fact which should have been raised at an earlier stage. It is too late now to demand consideration for them.
11. The seventh ground is not seriously pressed. It relates to the evidence of one Shiwaji (D.W 7), the defendant's maternal uncle. This person is 60 years old and his deposition as recorded makes him out to have admitted in examination-in-chief that the plaintiff's house was built 20 years before the witness was examined in February 1917, and that
“on occasions the plaintiff used to go to his house from the east during the last two or three years.”
12. Then in cross-examination the witness said:
“It is an incorrect statement that plaintiff used the way for the last two or three years. I did not make any statement that the plaintiff has his passage for the last two or three years.”
13. It seems to me clear that no value could possibly be attached to these statements of the witness. The plaintiff himself admitted obstruction before the institution of the suit and the witness gave evidence after the litigation had lasted for nearly 20 months. The eighth ground of appeal alleges that all the evidence has not been considered and that all the necessary findings have not been given by the lower appellate Court. I am not pointed to any evidence which has been left unconsidered. The issue said to have been left undecided is the trial Judge's fifth above quoted, and the finding said to be missing is one on the question whether the plaintiff submitted to or acquiesced in the obstruction by closing the gate. I have already explained why I do not consider this subsidiary question to have been properly raised. The ninth ground of appeal relates to the allegation in the plaint that when the gate was closed, the plaintiff was for some time permitted to use the substituted opening further north in the compound wall, that opening being regarded by the plaintiff as made for his benefit. The allegation in the plaint however does not amount to attributing to the defendant a desire to benefit the plaintiff by the new opening and there is admittedly no evidence of such desire. What does appear is that the gate was closed and the new opening made almost simultaneously. It is further clear that if the new opening was substituted for the old one, the claim should have left the old one out of account.
14. The tenth ground of appeal does not call for separate consideration. Holding that no ground for interference with the lower appellate Court's decision has been made out, I dismiss this appeal with costs. In the Court's below costs will be paid as already ordered.
P.N/R.K
15. Appeal dismissed.