1. Adopting the findings of fact such as they are of the Courts below, it appears that in 1893 or thereabouts, roughly nineteen years before suit, the defendant was a tenant at any rate of the house, of which the plaintiff has now taken a permanent lease. While a tenant he built his own house on the adjoining land and put up a stair-case which is the subject-matter of this suit. In all probability the pillar, driven into the land supporting the stair-case, was contemporaneous with the rest of the structure, though the plaintiff has contended, or, at any rate, suggested, that this pillar was put up by his immediate predocessor-in-title only some nine years before suit. In 1905, the plaintiff took a permanent lease of the house which had been in the defendant's ocoupatioa in 1893. He alleges that in 1912 he asked the defendant to pull down the staircase. The defendant refused. Hence his cause of action. He prayed for a mandatory injunction directing the defendant to remove the stair-case. The defendant replied that the land over which the stair-case hung and upon which it was supported by the pillar just mentioned was his own. And the lower appellate Court has confined its judgment to a trial of the issues : (1)'whether the land under the stair-case belonged to the plaintiff or the defendant; and (2) if to the plaintiff, whether the defendant has acquired an easement in the nature of a right to maintain his stair-case in its present condition. This overlooks many material points and presents the case in my opinion in an altogether wrong light. If we assume that the construction of the stair-case in 1893 by the defendant was an act done to the detriment of his landlord's title and without his landlord's knowledge and consent, then I should be inclined to say that this was a trespass and in no sense an easement, and that the plaintiff's right would have been finally barred by twelve years' adverse possession. If, however, it were contended that so long as the defendant remained a tenant of the plaintiff's predecessor-in-title his act in building the stair-case and supporting it on his landlord's land ought not to be regarded as adverse to his landlord's title, it might be relevant, if not important, to know when the defendant ceased to be a tenant of the plaintiff's predecessor-in-title. Upon this point the Courts give us no definite information. It is, however, clear and certain that for more than nine years before suit the tenants of the premises now occupied by the plaintiff realised the existence of and possibly the inconvenience occasioned to them by this staircase.
2. Now, at that time it is clear that it must have been standing either by the license of the plaintiff's predecessor-in-title or adversely to them. And in either event it is pretty clear that unless the license were specifically conditioned by some such terms as that the defendant on demand would remove the stair-case, the plaintiff would have had to bring a suit of this nature within six years under Article 120 of the 1st Schedule to the Indian Limitation Act. This he admittedly has not done and it is no sufficient ground for decreeing his claim that the lower appellate Court has found that the land under the stair-case belonged to him. I am not prepared to say with certainty that the trespass has continued for more than twelve years, and, therefore, that the defendant has acquired the ownership of the land underlying the staircase, though I think this is in all probability the truth of the case. But I have no hesitation whatever in saying that in any view the plaintiff's present claim is time-barred. Further, even were it not, it is a claim without any foundation ; for upon the view most favourable to him, there was acquiescence from the first and therefore no mandatory injunction of the nature he has prayed could have been granted to him. The defendant's stair-case could hardly be treated as in the nature of an ordinary easement and therefore the true nature of the contest was, I should have thought, rooted in trespass, and the proper period of limitation is twelve years from the time the defendant's possession became adverse.
3. Now, both the Courts below have found that the stair-case was put up nineteen years ago, and therefore the presumption in my opinion would certainly be that from that date the possession was adverse. I have hesitated to state that conclusion definitely because of some considerations which have been suggested from the Bench in the course of the argument, considerations lending colour to the possibility at any rate that the possession may have been permissive. But there is only one ground upon which the plaintiff could possibly succeed and overcome the three main difficulties I have indicated, and that is, that the defendant erected the staircase upon a definite agreement with his landlord, plaintiff's predecessor-in-title, that whenever called upon to do so he would pull the staircase down. That never appears to have been the plaintiff's case, and it is on the face of it extremely improbable that any person situated as the defendant was would have consented to such an agreement, for after building the stair-case at considerable expense he might have been called upon a month later to pull it down.
4. We have been asked to remand the case for a finding upon this question, but doing so would, in my opinion, be little less than a direct invitation to perjury. It would be making an entirely new case for the plaintiff and a case which, having regard to ordinary human conduct amongst people of this class, is so improbable as to be almost negligible.
5. In my opinion, then, the only proper decree to be made was that of the original Court, and I think that the decree of the learned Judge of first appeal ought to be reversed and the decree of the trial Court restored with all costs upon the plaintiff throughout.
6. I agree that the decree of the first Court should be restored. The suit is one for an injunction and nothing else; and on the facts found it is brought more than six years after the date at which it could have been brought. There-foro, the suit is time-barred in virtue of Article 120 of the 1st Schedule to the Indian Limitation Act. The circumstances of the case do not, to my thinking, suggest any good reason why we should allow a remand for the purpose of enabling the plaintiff to hunt about to see whether he can find some reason, possibly produce some evidence, to show that after all the suit might not be time-barred.