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Lallubhai Pragji Vs. Bhimbhai Dajibhai - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 864 of 1926
Judge
Reported inAIR1928Bom312; (1928)30BOMLR873; 113Ind.Cas.525
AppellantLallubhai Pragji
RespondentBhimbhai Dajibhai
DispositionAppeal dismissed
Excerpt:
.....1882), section 15-easement of light and air-acquisition by prescription-enjoyment for less than 20 years-suit by sertient owner for obstructing the easement-prescription put an end to by the suit-enjoyment subsequent to the suit does not give rise to prescription.;in may 1904 the defendants opened two new windows and tin arch in the party wall which was common to them and the plaintiff; and enjoyed lighting air through the openings. the plaintiff obstructed the apertures on november 4, 1923, but the defendants immediately removed his obstruction. on january 3, 1924, the plaintiff filed a suit to restrain the defendants from opening the windows and the arch. the defendants also ailed a, suit, on june 25, 1924, for declaration that, they had acquired the right of casement for light and air..........an enjoyment of more than nineteen years by the defendants as he was in contesting the defendants' suit brought after an enjoyment of twenty years.8. on appeal, this decree was set aside by the district judge, but he has mainly based his finding on the provisions of section 10 of the civil procedure code. he held that the matter in suit in the subsequent suit by the defendants was also directly and substantially in issue in the previously instituted suit by the plaintiff. both these suits were pending in the same court and that court was of jurisdiction competent to grant the reliefs claimed in the subsequent suit. he also held that it was incompetent for the trial court to try the suit of the defendants without deciding the first suit of the plaintiff and that, therefore, the plaintiff.....
Judgment:

Baker, J.

1. The point in these appeals la very peculiar. These appeals arise out of two suits which were brought by the plaintiff Bhimbhai Dajibhai and the defendants respectively with regard to an easement. The facts are extremely simple, though they have given rise to a certain amount of confusion in the mind of the trial Court. The question is as to the right of the defendants, by whom 1 mean the defendants in the first suit, to open two windows and arches in the western wall which adjoins the plaintiff's house. There is no dispute as to the facts. The defendants' house was built in 190k The easement regarding the use of light and air for that house commenced in May 1904 and in November 1923 the plaintiff Bhimbhai obstructed the use of these windows and arches by the defendants, but the obstruction was removed by the defendants and the plaintiff has brought the suit on January 3, 1924, for an injunction against the defendants ordering them to remove the windows and not to obstruct him in removing them.

2. Admittedly the interruption to the exercise of the easement by the defendants lasted for less than a year-for five months-and, therefore, under explanation (2) to Section 15 of the Indian Easements Act, the interruption being for less than a year was not an interruption within the meaning of the section. In the month of June 1924 while the plaintiffs suit was pending, the defendants brought a suit against the plaintiff for a declaration under Section 15 of the Indian Easements Act that they had acquired an easement to the use of the light and air by an uninterrupted enjoyment for a period of twenty years. These two suits are said to have been consolidated, although the Civil Procedure Code does not make provision for consolidation of suits. What actually happened was that the evidence was recorded in one suit and was used as evidence in the other.

3. The Subordinate Judge who tried the case framed the following issue:-

(1) Whether the defendants proved the alleged esaement and enjoyment thereof in the manner for the period required in law ?

4. By the defendants I mean the defendants who claim an easement as the dominant owners. He found on the issue in the affirmative, at the date of the defendants' suit in June 1924 but not at the date of the suit by the servient owners which was brought in January 1924. He found that the permission set up by the plaintiff' was not proved and that the plaintiff was not entitled to any relief, In the companion suit which was brought by the dominant owners, the defendants in the first suit, the finding was the same as in the other suit and a decree was passed declaring that 'the plaintiff is entitled to the easement claimed for the plaint windows and the arches and the defendant is ordered to remove the obstruction made by him against the said windows and arches which prevent the access and use of light and air to and for the same. If the defendant fails to remove the obstruction raised by him in the way of the plaintiffs' enjoyment of the windows and arches as before, that is, prior to the obstruction, the plaintiff may apply for removal thereof through the Court,'

5. This is a case in which two sets of people are contending. One claims to remove certain windows and the others claim to prevent them on the ground that they have acquired a right by prescription under the Indian Easements Act. The latter case does not realty arise and need not be considered. It has unnecessarily led the Judge of the trying Court into confusion and it becomes necessary to see what exactly the tangle is into which ho got himself. What he has found is this :-

When the plaintiff's suit was field, the twenty years' period was not completed; the plaintiff was, therefore, justified in filing the suit. That suit would certainly have been decreed in his favour had it not been for the defendants' suit. The defendants have succeeded in proving the easement and their right to the reliefs asked for in their suit. The plaintiff wants an injunction and he is entitled to it. But the defendants are equally entitled to their reliefs which when granted would make the plaintiff's decree absolutely nugatory. The plaintiff's decree would simultaneously be superseded by the defendants' decree. It would, thorefore, be useless to pass any decree in the plaintiff's favour in his suit.

6. Then he goes on to say:-

The only proper coarse in the matter, therefore, seems to be to make no order in the plaintiff's favour in this suit and to grant the reliefs claimed in the defendants' suit.

7. On coming to the question of costs he says :-

The plaintiff was as wrong in filing a suit after an enjoyment of more than nineteen years by the defendants as he was in contesting the defendants' suit brought after an enjoyment of twenty years.

8. On appeal, this decree was set aside by the District Judge, but he has mainly based his finding on the provisions of Section 10 of the Civil Procedure Code. He held that the matter in suit in the subsequent suit by the defendants was also directly and substantially in issue in the previously instituted suit by the plaintiff. Both these suits were pending in the same Court and that Court was of jurisdiction competent to grant the reliefs claimed in the subsequent suit. He also held that it was incompetent for the trial Court to try the suit of the defendants without deciding the first suit of the plaintiff and that, therefore, the plaintiff was entitled to a decree upon his claim in the first suit for injunction and the granting of that relief would operate as res judicata in the defendants' claim in the second suit. The defendants have appealed, and there is another appeal by them from the finding against them in the other appeal.

9. There is absolutely no dispute as to the facts, I have already stated that the enjoyment of the easement commenced in May 1904. The plaintiff's suit was brought on January 3, 1924. Therefore, as the first Court has found that on that date twenty years had not elapsed since the commencement of the enjoyment of the easement, it is unnecessary to consider the question of interruption (in law there is no interruption) as twenty years' period must have elapsed before the institution of the suit wherein the claim, to which such period relates, is contested: that is what the section says.

10. The ruling in Flight v. Thomas (1841) 8 F 231 has been referred to at some length. That case only decides that it makes no difference whether the interruption takes place in the middle or at the end of the term. It does not throw very much light on the present case, except in so far as it lays down that twenty years' period must have expired before the filing of the suit. At the date when the plaintiff filed his suit, whether there was an interruption of the enjoyment or there was no interruption, the period which had expired was nineteen years and eight months about. So, at that period there was no possibility of the defendants acquiring an easement under Section 5 of the Indian Easements Act, which says that:-

Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute.

11. It follows, therefore, that at the time of the institution of the plaintiff's suit the defendants had not acquired any easement and therefore, as the first Court found, the plaintiff was entitled to a decree. The decree which the plaintiff asked for in this suit was that a permanent injunction might be served upon the defendants; not to open the two windows and arches in the common wall to the west of the defendants' place, and restraining them from; obstructing the plaintiff if he blocked up the windows and arches when he raised his house.

12. The finding that the plaintiff is entitled to that injunction and that the defendants have not enjoyed the easement for a period 'of twenty years would put an end to the easement absolutely as no period elapsing after that can be added to the period of twenty years necessary to obtain an easement under Section 15 of the Act. This is laid down in Lord Battersea v. Commissioners of Sewers for the City of London [1895] 2 Ch. 708 as follows (p. 710):-

What I am asked to do now is to any that it is quite sufficient that the Baker twenty years shall be calculated, not twenty complete years before action but twenty years, nineteen years, and rather more of which is before action, the rest of the twenty years being made up during the continuance of the action. It seems to ma that such a contention is directly contrary to the meaning of these two sections. I think, therefore, that the action can only be brought after the period of twenty years has elapsed

13. It would have been a different matter if the plaintiffs had not brought this action, because then the defendants' action, which is brought in June 1924, would have been more than twenty years from the date when the easement commenced. But the plaintiff came in first in his action before twenty years had elapsed. It is quite clear that the plaintiff has brought his action before any easement had been acquired and this being so he is entitled to a decree on the terms sought, on the elementary principle that the decree determines the rights of the parties at the time of the suit. The defendants can have no right to an injunction against plaintiff as at the time when the plaintiff became entitled to his injunction the defendants had not acquired the right which they now claim. That being so there is an end to the matter and the plaintiff should have been given a decree. In that case it was useless for the defendants to bring their suit, as no period after the institution of the plaintiff's suit could be added to make the period of twenty years necessary to obtain a right for injunction.

14. On these grounds and quite apart from Section 10 of the Civil Procedure Code I am of opinion that the view of the lower appellate Court is correct and both the appeals should be dismissed with costs.

Patkar, J.

15. I agree. The point urged on behalf of the appellants, the dominant owners, is that where an easement has been enjoyed without interruption for more than nineteen years it gives a title to the easement under the Act, provided the action claiming the right commenced within a year after notice of interruption and reliance is placed on the case in Flight v. Thomas. (1841) 8 F 231 It is urged on behalf of the appellants that as a matter of fact a suit is brought by them within one year after notice of the interruption. It is argued on the other hand on behalf 01 the respondent that if no suit had been brought by the servient owner within one year, and before the completion of the statutory period of twenty years the contention of the appellants would be effective. But institution of the suit by the servient owner would prevent the dominant owners from including the time from the institution of the suit by the servient owner to the Bhimbhai institution of the suit by the dominant owners within the period of twenty years. According to the case in Flight v. Thomas, a period of twenty years must have elapsed before a suit is brought, and the question is whether such a suit is a suit only by the dominant owner or would include a suit by the servient owner. It is not merely sufficient that when the suit is brought, more than nineteen, though less than twenty years of such enjoyment have elapsed, Therefore, before there can be an interruption for one year the full period of twenty years, necessary to make the dominant owner's title absolute, must have expired. The right which the dominant owners claim is only an inchoate right until the full expiration of twenty years. And in case of an inchoate right, unless and until the full period has expired, the Courts will not interfere to protect it. See Lord Battersea v. Commissioners of Sewers for the City of London [1895] 2 Ch. 708 and Bridewell Hospital Governors v. Ward, Lock, Bowden & Co. (1892) 62 Ch. 270. The right which the dominant owner acquires after a user of nineteen years is an inchoate right. The period of twenty years, according to Section 15 of the Indian Basements Act, must expire before the institution of the suit wherein the claim to which such period relates is contested. The suit brought by the servient owner in this case is a suit wherein the claim to which such period of twenty years relates is contested. According to the view in 'Gale on Easements', 8th Edition, page 210 :-

In all cases in which an easement is churned under the statute by user such user must be shown to have existed daring the requisite periods immediately preceding the commencement of some action wherein the claim or matter to which such period may relate shall come in question.

16. The suit is not necessarily a suit brought by the dominant owner but would include a suit brought by the servient owner in which the claim to which such period relates is contested. The servient owner has by the institution of his suit prevented the period of twenty years running in favour of the dominant owner An owner of property who has been dispossessed can successfully bring a suit within twelve years of his dispossession and is not liable to be defeated by the defendant trespasser instituting during the pendency of the suit by the real owner, another suit after the period of twelve years is completed. Until the full expiration of twenty years the inchoate right is not an interest in land nor au easement known to the law. See Greenhalgh v. Brindley [1901] 2 Ch. 324 and Halsbury's Laws of England, Vol. XI, p. 273. I may refer in this connection to the cases of Kashibhai v. Vallavbhai (1921) 24 Bom. L.R. 305 and, Narasappayya v. Ganapathi Rao. I.L.R (1913) Mad. 280 In this ease the period of twenty years had not elapsed before the institution of the suit by the servient owner, and therefore, in ray opinion, there has been no acquisition of easement within the meaning of Section 15 of the Indian Easements Act. I think, therefore, that this ground is sufficient for the disposal of this appeal.

17. It appears that the learned District Judge dealt with the provisions of Section 10 of the Civil Procedure Code with reference to the embarrassment felt by the Subordinate Judge with regard to the disposal of the two suits in which the same relief was claimed by the dominant owners as well as by the servient owner. The learned Subordinate Judge gave a decree in favour of the dominant owners, though their suit was subsequent to the institution of the suit by the servient owner. 1 am unable to follow the reasoning by which he preferred the claim of the dominant owners to that of the servient owner. In my opinion there has been no acquisition of easement by the dominant owners within the meaning of Section 15 of the Indian Easements Act. On that ground I would confirm the decree of the lower appellate Court and dismiss both the appeals with costs.


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