R.M. Kantawala, C.J.
1. Defendants Nos. 1 to 7 have filed this appeal against the concurrent decree passed by both the Courts declaring that the plaintiffs have a right of easement to enjoy water of a well situate in survey No. 145/2 at Salgar and are entitled to take water to their land survey No. 146 situate at Salgar by the specified channel. Both the Courts have also granted an injunction restraining defendants Nos. 1 to 7 from interfering with plaintiffs' enjoyment of the right to use the water of the well and to take it by the channel.
2. Plaintiffs together are the owners of survey No. 146. This survey number is divided into separate pot hiss as and as indicated in the sketch annexed to the plaint, those separate pot hiss as belong to the different plaintiffs. Similarly defendants are the owners of survey No. 145 in which there is a well. This survey number is also divided into separate pot hiss as. One share of pot hiss as belongs to defendants Nos. 1 to 7 and the two other portions belong to defendants Nos. 8 and 9 respectively. Plaintiffs filed a suit for an Injunction restraining the defendants from interfering with the right of the plaintiffs to take and enjoy water of the well situate in survey No. 145/2 and to take water by a channel to their survey No. 146.
3. The suit was resisted by defendants Nos. 1 to 7. The right was claimed by the plaintiffs as a prescriptive right acquired under easement. The acquisition of the right by the plaintiffs was disputed by the defendants. They also contended that defendants Nos. 1 to 7 had filed an earlier suit No. 8 of 1967 against the plaintiffs for a declaration that they are the owners of the land and plaintiffs have no right therein. In the earlier suit the plaintiffs contended that they were the co-owners of the well but did not assert any prescriptive right to take the water of the well by way of prescriptive easement. In the earlier suit the claim of plaintiffs' co-ownership of the well was rejected by the trial Court as well as by the first appellate Court and the second appeal preferred by the plaintiffs was summarily dismissed by the High Court at the stage of admission. In the earlier litigation no alternative plea was put forward that the right to take the water of the well from survey No. 145/2 has been acquired by prescription for the requisite period provided under the Easement Act. After the disposal of the earlier litigation within a few months on October 3, 1970 plaintiffs filed the present suit for an injunction claiming prescriptive right to take the water from the well by a particular specified channel.
4. The trial Court accepted the contentions of the plaintiffs so far as the acquisition of the prescriptive right was concerned, but rejected the contention of the defendants so far as the plea of res judicata was concerned and granted a declaration as prayed for by the plaintiffs. In an appeal preferred by defendants Nos, 1 to 7, the learned Assistant Judge, Sholapur, confirmed the finding of the trial Court that the present suit was not barred by res judicata in view of the decision in the earlier litigation. He also confirmed the finding of the trial Court that the plaintiffs have perfected their right by prescription. The plaintiffs have acquired a prescriptive right by taking water for a period of more than twenty years from the well situate in survey No. 145/2 for irrigating their land survey No. 146 as and by way of prescriptive easement and they were accordingly entitled to a declaration as well as injunction. It is against this concurrent decree passed by both the Courts that the present appeal is filed by defendants Nos. 1 to 7.
5. Mr. Sukhthankar on behalf of defendants Nos. 1 to 7 contended that a prescriptive right is acquired by a party only if there is hostile animus or consciousness of user over somebody else's property. He submitted that no one can claim easement by prescription over property claimed by him' as the owner or co-owner and unless this animus or consciousness is established no prescriptive right can be acquired. Reliance was placed by him upon a decision of the Full Bench of this Court in Raychand Vanmalidas v. Maneklal (1945) 48 Bom. L.R. 25, and the decision of the Supreme Court in the case of Chapsibhai Dhanjibhai Danad v. Purushottam : AIR1971SC1878 , in which the view taken by the Full Bench of the Bombay High Court in Raychand's case has been affirmed. He submitted that in view of the contentions in the earlier litigation it is quite evident that the requisite animus or consciousness was not existing during the period for which a hostile title could have been asserted by the plaintiffs and both the Courts were, therefore, in error in accepting the contentions of the plaintiff that they acquired a right by prescription with requisite animus or consciousness.
6. Mr. Rege, on the other hand, on behalf of the plaintiffs submitted that simply because in the earlier litigation the plaintiffs pleaded co-ownership of the well, they were not precluded from proving the requisite animus in a subsequent litigation between the parties. He submitted that in the present litigation upon appreciation of the evidence led by both the parties, both the Courts have come to a concurrent finding that the requisite animus existed during the entire prescriptive period and the plaintiffs acquired a prescriptive right to take the water of the well for the purpose of irrigation of his survey number by the specified channel in the sketch.
7. It is not disputed in the present case that in the earlier litigation between the plaintiffs and defendants Nos. 1 to 7 the present plaintiffs asserted their right of co-ownership in the well. The judgment of the learned Second Extra Assistant Judge, Sholapur in Civil Appeal No. 194 of 1969 disposed of on July 14, 1970 is on record as exh. 171. The points for determination framed by the learned Second Extra Assistant Judge, Sholapur, clearly show that the contention of the present plaintiffs in the earlier litigation was that they are the co-owners of the well situate in survey No. 145/2 and that contention was rejected both by the trial Court as well as the appellate Court and the second appeal preferred by the present plaintiffs from the decision of the learned Second Extra Assistant Judge, Sholapur, was summarily dismissed by the High Court in the year 1970, a few months prior to the institution of the present suit.
8. The question that arises for determination in the present appeal is : Had the plaintiffs requisite hostile consciousness or animus during the whole of the period so as to permit them to acquire a prescriptive right to take the water of the well by a specified channel. If such hostile animus or consciousness does not exist then even though mere user under the belief that one is a co-owner will not permit such a party to acquire a prescriptive right. What kind of animus is necessary is dealt with by the Full Bench of this Court in the case of Raychand Vanmalidas v. Maneklal (supra), the ratio of that decision is that where a person sues for ownership of a property but fails to prove his title, he is not at liberty to bring another suit to establish his right of easement over the same property. A person claiming an easement should have the consciousness of exercising that claim on a property which is not his own. This ratio of the Full Bench nearly puts the present plaintiffs out of Court, In the earlier litigation the present plaintiffs asserted their title on the footing of co-ownership and not any hostile intention with consciousness of acquiring right over somebody else's property. Having failed in that litigation they have now come with the story of prescriptive right. At page 33 Divatia J. who gave the judgment on behalf of the Full Bench has observed :.In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else's property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man's property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possesment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a properly and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right.
This view taken by the Full Bench has been approved of by the Supreme Court in the case of Chapsibhai Dhanjibhai Danand v. Purushottam (supra). It is laid down (p. 215) :.Therefore, if the owner of a dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on some one else's property and not as an incident of his own ownership of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement.
9. Even though the question of animus or hostile consciousness was urged before the Courts it is rather surprising that both the subordinate Courts notwithstanding the earlier litigation and claim asserted by the present plaintiffs therein were persuaded to take the view that such hostile animus or consciousness existed during the requisite period so as to enable the plaintiffs to acquire prescriptive right. The learned Assistant Judge in para. 28 of his judgment has observed :.Hence, though technically it is necessary in the subsequent suit (or the same party to prove the necessary animus to use the property of another for the benefit of his property consciously, in a case like the present one it is not possible for the party to prove that animus, otherwise than by asserting on oath that he has got that animus. In the cases like the present there can be no actual difference in the mode of enjoyment even if the animus changes. The use in exercise of the ownership right and the use in exercise of the easement right will be the same. Taking into consideration, therefore, all the circumstances, together, I am satisfied that the plaintiffs have established their right of easement over the suit well.
It is on the basis of this reasoning that the learned Assistant Judge has confirmed the finding of the trial Court about the possession of the prescriptive right. This reasoning completely overlooks the basic principles which are required to be borne in mind for acquisition of a prescriptive right which are laid down by the Full Bench of this Court in Raychand's case (supra). Actually, decision of the learned Assistant Judge is really contrary to the ratio of the decision in the Full Bench case of the Bombay High Court in Raychand's case (supra) and it is not open to the plaintiffs to file a subsequent suit to assert their prescriptive right after having failed in the earlier litigation in establishing their right as co-owners. Thus, the view that has been taken by both the Courts on the plaintiffs' contention of acquisition of this prescriptive right to take water of the well situate in survey No. 145/2 is clearly contrary to law and unjustified.
10. In the result, in my opinion, both the subordinate Courts were in error in accepting the contention of the plaintiffs that they acquired a prescriptive right by the requisite user for the period required by the Easement Act. Since right upto the year 1970, when the earlier litigation was disposed of by the High Court the present plaintiffs asserted their right to use the water of the well as co-owners and not by reason of hostile animus or consciousness of exercising that right over somebody else's property. Whatever user of the water of the well they did, they did it under the belief that they were the co-owners of that well and they having failed to establish their right as co-owners, they cannot be permitted in this litigation to assert hostile title and even if they assert such hostile title, their contention cannot be accepted. The appeal is, therefore, allowed. The decree passed by both the Courts is set aside and the plaintiffs' suit is dismissed with costs throughout.