(1) These are two Letters Patent appeals against the decision of Gajendragadhkar in Second Appeals Nos. 279 and 281 of 1943. The dispute in these cases relates to a right of way which the plaintiffs claim over certain lands to the east of the houses belonging to the plaintiffs and the defendants. The precise position of the houses of the plaintiffs and the defendants and of the lands over which a right of way is claimed will be found from exh. 145. The plaintiffs owned Survey Nos. 86 to 92. Adjodning the Survey No. 86 to its north there is a Dehla (passage) and beyond it are the survey: Nos. 80 and 81 belonging to defendant 1. Beyond those survey numbers and to the north of the survey number belonging to defendant 1 are Survey Nos. 73, 77 and 78 which belong to defendants Nos. 2 and 3. To the east of these houses of the plaintiffs and the defendants, there is a certain open piece of land which has been shown in the map by the letters A, B, C, D and E. Between these pieces and the house belonging to defendant 1 there is what is described in the judgments of the lower Courts a narrow piece of land and it is shown in the map exh. 145 by yellow colour. The plaintiffs claim that by immemorial user and also by prescription they had a right of passage over the whole of the site marked by letters A, B, C, D and also the yellow piece of land. The plaintiffs' case was that the defendants had blocked the passage in the year 1937, and that therefore they had to file suits to establish their right of easement and to claim appropriate injunctions to enforce their rights. The defendants contended that the plaintiffs had no such right of way over these pieces of land and they had acquired no such right either by prescription or by immemorial user. Actually two suite were field to establish these rights. Suit No. 543 of 1938 was filed on 4-5-1933, and related to the portions-marked A, B, C, D and the small strip of land shown in yellow colour. The other Suit No. 1310 o 1933, related to the piece of land marked by the letter E. In the trial Court the plaintiffs succeeded in their claim with respect to all the portions of the property and the trial Court issued requisite injunctions in their favour.
Against the decision of the trial Court, two appeals were filed in the District Court. They were Appeals Nos. 189 and 190. The learned District Judge upheld the findings of the trial Court with respect to the pieces of land indicated by the letters A, B, C, D and E. But he was of the opinion that with respect to the narrow piece of land shown in the map in yellow colour, the plaintiffs right of easement over it had not been established by prescriptive user of over 60 years. Accordingly he allowed the appeal of the defendants so far as the narrow strip of land was concerned, but dismissed their appeals with respect to plots shown by the letters A, B, C, D and E. From those decisions two second appeals were filed by the defendants in this Court, being Appeals Nos. 279 and 231 of 1946. They came up for hearing before Gajendragadkar J. The plaintiffs filed cross-objections with respect to the rejection of their claim for their right of way over the narrow piece of land shown in yellow. At the hearing the learned advocate for the defendants stated before the learned Judge that certain additional evidence was available with respect to the plots shown by the letters A, B, C, D and E. As this additional evidence could not be allowed in the second appeal, he asked for the permission of the learned Judge to withdraw the appeals so far as the right of easement in respect of the plots A, B, C, D and E was concerned. The learned Judge gave the necessary permission. But even with this withdrawal of the appeals filed by the defendants with respect to the right of way over the plots A, B, .C, D and E granted by the two lower Courts, the cross-objections of the plaintiffs with respect to the rejection of their claim over the narrow piece of land had still to be decided. The learned Judge therefore, proceeded to discuss the merits of the cross-objections which had been filed by the plaintiffs. Eventually, the learned Judge allowed the cross-objections, set aside the decree of the District Court in respect of that bit of land and restored that of the trial Court, Prom that order these two Letters Patent appeals have been filed, and the only point that we have got to consider in these appeals is with respect to the plaintiffs' right of way over this narrow piece of 'and to the east of defendant No. 1's house which has been shown by yellow colour in exh. 145.
(2) With regard to this bit of land the point that was argued before Gajendragadkar J. was that the District court was wrong In holding that the last paragraph of Section 15, Indian Easements Act, applied, and that the plaintiffs had to establish their prescriptive user over this land for a period of 60 years. The facts accepted as proved by the learned Judge were
'that the plaintiffs had proved that the right of way over this narrow strip had been peaceably and openly enjoyed by them as an easement and as of right without interruption and for a period of 20 years, and that the said period of 20 years did end within two years next before the institution of the suit. They have, however, not enjoyed this right for 60 years'.
The learned Judge appears to have assumed--I say assumed, because in the arguments before us some point has been made as to the precise date when the land was sold by Government to defendant -- that the land was purchased by defendant 1 from Government in 1937. The title to this narrow strip of land undoubtedly vested in Government, and there is also no dispute that subsequently it had been sold by Government to defendant 1. In February 1938 there was an order made by the City Survey Officer after an inquiry in which he held as follows:
'I therefore decided the land under question as Government waste land lying unnumbered and reject the claim of the municipality. The land being a narrow strip and lying between the Survey Number of the owner is capable of being disposed of under rule 49, Land Revenue Rules'.
This order is dated 9-2-1938. It appears that thereafter this piece of land was sold by Government to defendant 1, and the sanad for that land was issued on 25-11-1938. See exh. 265. The present suit was instituted on 4-5-1933. On the assumption that at the date of the institution of the suit this strip of land had already been sold by Government to defendant 1 and had become the private property of deft. 1, the learned Judge had to consider as to what was the period of prescriptive user which entitled the plaintiffs to obtain a declaration of their easement rights. It was contended before the learned Judge that on a proper interpretation of the last paragraph of Section 15, Easements Act, the period of prescriptive user was 60 years, inasmuch as the property had belonged to Government during the period of the prescriptive user of that property by the plaintiffs. Gajendragadkar J. was of the opinion that-
'...,on a reasonable and natural construction of this paragraph (the last paragraph of Section 15) it must be held that its provisions do not apply to suits where the property doss not belong to the Government when the suits are filed.' He quoted the 'dictum' of Lord Macnaghten in-- 'Colls v. Home and Colonial Stores, Ltd.', (1904) AC 179 to the effect that the right which is sought to be claimed was an inchoate right and only when such a right is claimed in the suit that the inchoate right becomes crystallised in a right which the Court has recognised. He took the view that- '....it is when such a right is claimed in the suit that the property must be shown to belong to the Government in order that the special period prescribed by it should apply. The use of the verb 'belong' in the present tense does, in my opinion, indicate that the Government must be the owner of the servant tenement at the time when the right is claimed and as I have said a right can be and is claimed only in a suit. The right referred to in Section 15 is exercised for the statutory period as required by the said section and then is claimed in a suit. That being so, I think the last paragraph of Section 15 cannot be said to apply to the property in the present, suit because it does not now belong to the Government. This view has been accepted by the Lahore High Court in -- 'Saya Ram v. Lahore Electric Supply Co. Ltd.', AIR 1942 Lab 124 (B).
He further added that-..as soon as the Crown transfers the properties to private individuals there would be no justification for extending the special period as regards rights claimed over such properties in the hands of private transferees'' On the footing, therefore, that this narrow strip of land had been sold by the Government to ascendant 1 prior to the institution of the suit, he was of the opinion that the period of prescriptive user was 20 years, and not 60 years; and as this user of 20 years had been found to be proved, he was of the opinion that the plaintiffs were entitled to a declaration of their right and for the necessary consequential injunctions. On that view, the learned Judge reversed the decree of the District Court and restored that of the trial Court.
(3) In taking that view, the learned Judge referred to the decisions of the other High Courts on the point where it appeared that a contrary view had been taken. He referred to the decision in -- 'Srinivasa Upadhya v. Ranganna Bhatta', AIR 1918 Mad 120 (C) wherein it was held by the Madras High Court that the words belongs to Government in the last paragraph of Section 15 Easements Act must refer not to the time of suit but to the time during which the easement was enjoyed.'' The learned Judge was not prepared to accept that view for the reasons given by him, and in support of his view the learned Judge-referred to the decision of the Lahore High Court in 'AIR 1342 Lah 124 (B)' the decision of Ashworth J. in -- 'Municipal Board Pilibhit v. Khali-ul-Rahman' : AIR1929All382 and the decision of Yorke J. in --'Ram Prasad v. Lalit Kishore', AIR 1542 All 405 (E) all of which supported the view taken by Gajendragadkar J. It is true that the decision of Yorke J. in 'AIR 1942 Ail 405 (E) went before a division bench of the Allahabad High Court in a Letters Patent appeal in -- 'Lalit Kishore v. Ram Prasad', : AIR1943All362 . In the Letters Patent appeal Collister J. expressed no view on the point which Gajendra-gadkar J. had to consider. But it appears that Allsop J took the view which was contrary to that of Yorke J. and more in consonance with the view taken by the Madras High Court in -- 'Srinivasa Upadhya v. Ranganna Bhatta (C). Gajendragadkar J. pointed out that the opinion expressed by Allsop J. was 'obiter' as in that particular case the animus that was established was the animus as an owner and not the animus of a person exorcising the right of easement over the land of another. It was, therefore, not necessary for the learned Judge to consider the further question as to whether on the facts before him the proper period of prescription to be applied was 60 years or 20 years.
(4) In the appeals before us the view which has been taken by Gajendragadkar J. has not been challenged, and if we may say so with respect, in our opinion, the view taken by Gajendragadkar J. is correct. On a true construction of the last paragraph of Section 15 Easements Act, we think that when at the date of the suit the property belongs not to Govt. but to a private individual, the period prescribed for establishing easement right is 20 years and not 60 years and we are in agreement with the reasons which Gajendragadkar J. has given in support of this view.
(5) But it has been contended by Mr. Desai for the appellants that- even on the view taken by Gajendrngadkar J. the plaintiffs could not be given a decree on the finding that the plaintiffs had proved their right of way over this narrow strip of land peaceably and openly for a period of 20 years only and had net exercised that right for 8, period of 60 years. This submission was based or, the argument that at the time when this suit was filed, the property in this narrow piece of land in fact vested in Government. In support of this submission Mr. Desai referred to exh. 130 dated 9-2-1933, under which the City Survey Officer had held that this piece of land was Government waste land which was capable of being disposed of under Rule 49 Land Revenue Rules. He also relied on exh. 255 the sanad from which he argues that the sale of this properly must have taken place some time in November 1938 when the sanad was issued. He, therefore, argued that when the suit was filed on 4-5-1933, the property was still Government property and that being so, the prescriptive user for a period of 60 years that to be established, even though subsequently the property may hare been sold by Government to defendant 1. In our opinion, this submission has not much substance in it. Although it is true that the City Survey Officer held in February 1933 that the property was capable of being sold under Rule 49 Land Revenue Rules, there is no evidence in the case as to when it was actually sold is defendant 1. The sanad dated 25-11-1938, is merely evidence of the title of defendant 1 and does not indicate that it was on that date that the sale in fact took place. The learned trial Judge in paragraph 2 of his judgment states in reciting the substance of the plaint that this a trip of land was sold to defendant 1 in 1938 'after' the present suit was filed. We are not quite clear as to hove the learned Judge came to state that the property had been sold after the present suit was filed We have carefully examined the plaint filed by the plaintiffs and we find no statement therein nor has our attention been invited to any statement contained therein that the land was sold to defendant 1 after the filing of the suit. Defendant 1 filed his written statement on 20-7-1939, and no contention has been taken therein that at the date when the suit was filed, the property was a property of Government. All that he states is :
'There is a piece or land between the plaintiffs' building and the Survey No. 9-A-2 shown in the plaint of the ownership, possession and enjoyment of the Government for a long time, i.e., since many years before. And on that land and the land of Survey No. 9-A-2 and on any portion thereof the plaintiff had not any legal right or easement of way or light and air or any other rights and have no such rights and have not acquired any such rights. The plaintiffs or persons living in their house have no right to use the disputed land shown in the plaint on good or bad occasions, as stated by the plaintiffs and they have never enjoyed the alleged right of that nature. The plaintiffs have no right to light air or way as stated by them, and they never had it and the plaintiffs have never enjoyed such alleged rights as of right and they have no right or authority to enjoy it as of right.'
(See para. 14 of the written statement), it would, therefore, appear that there is no clear evidence to show that this property was sold by Government to defendant 1 after the institution of the suit. All the Courts have proceeded on the assumption that the sale by Government in favour of defendant had taken place prior to the institution of the suit. The District Judge in his Judgment has stated 'that the Government passed an order dated 9-2-1938, whereby the strip of land was sold to defendant 1.' See para. 5 of the judgment of the District Court. Later on in the same paragraph the learned Judge says,
'I agree with the submission of the appellant's learned advocate and hold that the defendant has become the owner of this strip of land in the immediate front of his house by reason of its purchase by him from Government in February 1938.'
Having found this as a fact, he then went on to say that the user had to be proved for a period of sixty years, because the land originally belonged to Government.
Gajendragadkar J. also proceeded on the same basis, as he said in the course of his judgment
'that the title to this narrow strip of land originally vested in Government and it had been conveyed by Government to defendant 1 in 1937.'
It appears, therefore, that throughout the trial and in all the Courts all the parties proceeded upon the basis that the sale in favour of defendant 1 took place some time prior to the institution of the suit. Even in the appeal memo which has been filed in this Letters Patent appeal, no contention has been taken that although the view taken by Gajendragadkar J. on a point of law was correct, it, had not been correctly applied to the facts of this case, because at the date of the institution of the suit the property belonged to Government. In the appeal before us the view taken by the learned Judge on the point of law has not been assailed, and if it was the contention of the appellant that the law had been wrongly applied to the facts of this case, because at the date of t'qe suit the property was still the property of Government, we should have found a mention of that point in the appeal memo. In fact, that was the principal point that was argued by Mr. Desai on behalf of the appellant, and that point finds no place in the appeal memo.
(6) The last paragraph of Section 15 Easements Act says
'that when the property over which a right is Claimed under this section belongs to Government, the section shall be read as if, for words, 'twenty years', the words 'sixty years' were substituted.'
When the section mentions the words 'belongs to Government' it obviously means that relief is claimed against Government in. respect of the property which belongs to them. If, therefore, the property had not been sold to defendant 1 at the date when the suit was instituted, and had still belonged to Government, then an injunction should have been asked for after making Government a party to the suit. We should also have expected, if the submission made before us is correct, that defendant 1 would have stated in his written statement that as the property was, at the date of the institution of the suit, a property of Government, it was necessary to implead Government as a party to the suit. No such contention appears to have been taken as would appear from para. 14 of the written statement, to which I have already made a reference. It would therefore, seem that throughout in the trial Court and until the argument in this Letters Patent appeal, it was assumed that prior to the institution of the suit the property had been sold to defendant 1 and on this basis the suit was filed only against him in respect of the plaintiffs' claim for a right of easement over this narrow strip of land. We do not think that at this late stage we could countenance any suggestion that when the suit was filed, the property had not been sold to defendant 1. That disposes of the first argument which was advanced by Mr. Desai on behalf of the appellant.
(7) The second and subsidiary point that was urged by Mr. Desai was that even if this narrow strip of land had been sold by Government to defendant 1, the plaintiffs must start acquiring an easement as against defendant f from the date of the sale and cannot tack on the user by the plaintiffs of this bit of land as against Government. In our opinion this submission also cannot be accepted. There has been a user of the land for over 20 years as against Government. Thereafter the property was sold by Government of defendant 1, end we see no reason why the plaintiffs should not get the benefit of the user as against Government in establishing their claim 33 against defendant 1 whose predecessors-in-title were Government themselves. An authority precisely on this point, is to be found in the decision of the Lahore High Court in 'AIR 1942 Lah 124 (B). There also the property, had been sold by Government to the Lahore Electric Supply Company, Limited, only a few years before the suit was instituted, and it was held that ',...an easement over a servant tenement, first belonging to Government and then transferred to a private individual can be acquired by user for twenty years only and the period of user against Government can bo tacked on.' A contrary view was taken in 'AIR 1913 Mad 120 (C)'. In that case also the property over which the easement was claimed belonged originally to Government and then it was assigned by Government to the defendant. After taking the view that (p. 121)
'the words 'belongs to Government' in the last paragraph of Section 15 of Easements Act must refer not to the time of the suit but to the time during which the easement was enjoyed,'
the learned Judges proceeded to express the view that
'an easement against a private person could be acquired by 20 years' enjoyment and could not be tacked on to the enjoyment against Government..'
The learned Judges then proceeded to make an observation which is obviously in conflict with their view expressed earlier in the judgment. They stated that (p. 121) :
'... .where the sixty years' period has nearly expired during Government ownership of the land, and the land is then transferred by Government to a private party, the acquisition of the easement might be held to be completed when the deficiency: was made up by subsequent enjoyment against the transferee but subject to this the person claiming the easement must make good his title by twenty years' enjoyment against the transferee after the transfer.' This view of the learned Judges has been criticised by Dalip Singh J. of the Lahore High Court in the case to which I have just made a reference. Referring to the Madras High Court view, the learned Judge observes (p. 125) :
'....The learned Judges added somewhat-- if I may say so with all respect -- in contradiction to the argument which they were accepting that if the period of 58 or 59 years had elapsed, then the plaintiff would be entitled to lack this period in the hands of the transferee. This way of looking at the matter appears, as I nave said before with all respect to the learned Judges, to be self-contradictory. There can be no question of adding any period great or small to the period required against the transferee if the decision or their Lordships of the Madras High Court were correct.'
With respect we agree with the opinion expressed by Dalip shigh J. The Allahabad High Court has also held in 'AIR 1923 All 382 (D)' that 'in the hands of the transferee, the period during which the land had been in the hands of the Government could be lacked on to make up the full period of 20 years necessary to acquire an easement against the transferee.' Gajendragadkar J. has also accepted the same view. He says,
'Take for instance the present case where a right of way is enjoyed over property belonging to Government for more than twenty years, but less than sixty years. A claim for easement could not have been successfully made in a suit against the Government until the sixty years' period was over. But if the property is transferred by the Government to a private individual such a claim can be successfully made.'
It would thus appear that in that view of the learned Judges, the period of user as against Government could be utilised for successfully establishing a right of easement over the property in the hands of the transferee. In our opinion the view expressed by Gajendragadkar J. and by the Lahore and Allahabad High Courts is correct and therefore the submission which has been made by Mr. Desai that 20 years' user had to be established against defendant 1 after the property had been transferred to him cannot be accepted.
(8) These are the only two points that are argued before us. In our opinion there is not much substance in either of them.
(9) The result, therefore, is that the order of Gajendragadkar J. in the two second appeals will be continued and these Letters Patent appeals will be dismissed with costs.
(10) Appeals dismissed.