Udit Singh v. Kashi Ram

Sir John Edge, C.J:— This is a second appeal in a suit brought by a tenant against his landlords, in which the tenant alleged that he had acquired by user an casement or right of way over the adjoining [187] land of his landlords. The questions which we are asked to decide in order to dispose of this suit are as follows:—

“(1) Whether Act VIII of 1891 is retrospective, that is, whether, by dint of the enactment, Act V of 1882 governs this case.

(2) Whether a tenant or occupier of land can acquire for his own benefit a right of casement under s. 26 of the Indian Limitation Act (XV of 1877) or under the Indian Easements Act (V of 1882) read with Act VIII of 1891.

(3) If so, whether the tenant can acquire an casement against his own landlord.”

The alleged cause of action was the building by the landlords of a wall which interfered with the right of way claimed. So as to avoid any mistake as to my meaning, I should point out that the tenant does not allege that his holding had at the time it was let to him the right of way in question as appurtenant to it, nor does he allege that the landlords granted any such right of way as appurtenant to the holding, nor again does he allege that the way claimed was what is known in law as a way of necessity; he merely alleges that he as the tenant in the occupation of his holding had by user obtained a right of way against his landlords, over their adjoining land. In my opinion it is contrary to common sense that any such right as is here alleged could possibly have been acquired. Such right could only have been acquired, if at all, in respect of the holding occupied by the plaintiff. That holding is the landlords holding, and they, the landlords, are in possession of it through their tenant the plaintiff. The plaintiff is not an owner claiming a right in respect of a dominant tenement over another serveint tenement; he is not claiming this right for or on behalf of his landlords; but he is claiming it adversely to them, although for and on behalf of their own property. The law, as I conceive it to be, was very concisely put and illustrated by Lord Cairns in his judgment in Gayford v. Moffat. That was a case in which a tenant was claiming a right of casement over his landlord's [188] property as a right acquired by the tenants not granted by the landlord. Lord Cairns said—“But it is not necessary to examine the user, for this reason, that if there is a person to whom the owner of two closes has demised one of them, and if in order to get at that one there is a necessity to cross the other close which was not demised, and if, in the course of years, from the circumstance that the landlord had no particular occasion to use the close for any other purposes, or that he was not strict in obliging his tenant to adhere strictly to the way, he had allowed the tenant for his convenience occasionally to make deposits of this kind on other parts of the close, still it is utterly impossible that by such a course of proceeding the tenant as against his landlord could acquire any casement whatever. An casement must be acquired in respect of some tenement, and the only tenement in respect of which this casement could be acquired, and which itself would become the dominant tenement, is the demised close. But the possession of the tenant of the demised close is the possession of his landlord, and it seems to be an utter violation of the first principles of the relation of landlord and tenant to suppose that the tenant, whose occupation of close A was the occupation of his landlord, could by that occupation acquire an casement over close B, also belonging to his landlord, the duty of the tenant being to take-care that if he is passing over close B at all, he should do nothing on it more than his lease authorized him to do, and it must be supposed for this part of the argument that the lease in this case authorized him to do no more than cross the yard without any right of depositing goods on it.” In that case it must, be observed that it was assumed that the lease granted a right of way, but not the right claimed by the tenant to deposit goods on the neighbouring close of his landlord. I would answer the first question by saying that Act V of 1882 does not govern this case, inasmuch as it was not made applicable to these Provinces until after this suit commenced, and there is nothing in Act VIII of 1891 to compel us to apply Act V of 1882 to a suit commenced before Act VIII of 1891 came into force. I would answer the second and third questions so far as they are applicable to the facts [189] of this case in the negative, and further with regard to the Indian Basements Act (Act No. V of 1882). I would draw attention to s. 12 of that Act. The result is that I would allow the appeal and dismiss the suit with costs in all Courts.

Straight, J.:— I entirely agree, with the learned Chief Justice both in his answer to the questions referred and in the decree which he proposes to make in the appeal.

Tyrrell, J.:— I am entirely of the same opinion as the learned Chief Justice.

Mahmood, J.:— I also am of the same opinion; but there is one point which I wish to explain, and that is, that the passing of Act VIII of 1891, which extended the operation of the Indian Basements Act (V of 1882) to these Provinces, cannot, in the absence of express words, be taken as retrospective, or as either disturbing existing rights or creating new ones. Therefore till the date of the coming into force of Act VIII of 1891, there was no law in this part of the country governing questions of casements except s. 26 of the Indian Limitation Act (XV of 1877) and such portions of the Common Law as were applicable to those questions. Another point which I wish to add relates to the emphasis laid by Mr. Jwala Prasad in regard to the use of the words “owner or occupier of certain land” as those words occur in s. 4 of the Indian Easements Act in the definition of the word “easement,” and also I wish to refer to s. 12 of that enactment in order to say that neither the definition contained in the former section nor anything in the latter section militates against the view which the learned Chief Justice has expressed. The Indian Easements Act may be referred to and taken for what it is worth in settling disputes arising before the Act was extended to these Provinces, but it does not in any way negative the views expressed by the Chief Justice and concurred in by my brother Straight. Then come the other two questions of my referring order, and as to these I have merely to add that I agree not only in the judgment of the learned Chief Justice but also in the decree proposed by him.

[190] Knox, J.:— I am of the same opinion as the learned Chief Justice both as to the answer to the reference and as to the decree which he proposes to pass in the appeal.

[The appeal was accordingly allowed and the suit dismissed with costs.]