1. This appeal was referred to a Bench by the learned Chief Justice sitting singly, as it raised an important question of law. In the suit which has given rise to this appeal, the plaintiff-respondent has prayed for a mandatory injunction requiring the defendants to remove certain walls and for the restoration of the suit water channel in its original place. He has also prayed for a permanent injunction restraining the defendants from interfering with the course of the water channel shown in the plaint.
2. The facts found by the Courts below are: The plaintiff is the owner of R. S. No. 472/1 and 472/2 of Kannur Village; for the last about 30 or 40 years he was taking water to his lauds from a Government well through the Government land in S. No. 472 which adjoins the plaintiff's land; the water was taken by means of a pueca channel which was about 9' in width and 10' in depth; the channel in question was put up by the plaintiff; the defendants have now removed that channel and have obstructed the plaintiff from taking the water by putting up certain walls.
3. From the facts found, it is clear that the plaintiff has not perfected his right of easement to take water through the Government land. In the eye of the law he is still a trespasser. Equally the defendants are also trespassers. That being the case, can the plaintiff maintain the present suit against the defendants? The trial Court has found that he cannot, whereas the first appellate Court is of the opinion that the plaintiff can maintain the present action. Landon (in Pollock on Torts, Fourteenth Edition at page 299) says:
'Easements and other incorporeal rights in property, rather a fringe to property than property itself as they have been ingeniously called, are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled; a man who has useda way ten years without title cannot sue even a stranger for stopping it. The only possession that can come in question is the possession of the dominant tenement itself, the texture of legal rights and powers to which the fringe is incident'. O. W. Homes, Jr. in 'The Common Law' says:
'A way, until it becomes a right of way, is just as little susceptible of being held by a possessory title as a contract; there must exist a right against the servant owner before there is a right against anybody else.'
4. The same is the opinion of Salmond (on the Law of Torts Edn. 8 at page 259). He says:
'It cannot be the law that a mere trespasser who has been in the habit of crossing another man's land can sue a stranger for an act which obstructs his use of this de facto easement. Nor can it be supposed that a poacher can sue a stranger who, by polluting the water of a stream, has interfered with his practice of catching fish therein''.
5. Authorities both in England and in this country are unanimously of the opinion that the enjoyment of the dominant owner which may in time ripen into an easement is not possession and gives no possessory right before the due time is fulfilled. The de facto enjoyment does not, even provisionally, create any substantive right, but is material only as an incident in the proof of title. In Narasappayya V. Ganapathi Rao, ILR 38 Mad 280 : (AIR 1916 Mad 801), a Bench of the Madras High Court held that:
'Incorporeal rights such as easements are not capable in an exact sense of being possessed; and unless an easement had ripened into a prescriptive one, mere enjoyment of the easement for any length of time short of the full period of prescription gives no right for the enjoyer to maintain an action against any person infringing such a user.'
6. Similar is the view taken by the Allahabad High Court in Sajjad Ali v. Shahidali, : AIR1950All316 .
7. In the cases above cited, the aggrieved plaintiffs did not, or to be correct could not, maintain their action on the basis of any possessory title. In the present case it is proved that the plaintiff had due out a channel and he was maintaining the same. It is the effect of this additional factor that arises for consideration. A somewhat similar case came up before a Bench of the Madras High Court in Kondappa Rafan Naidu v. Dwara-Konda Suryanarayana, ILR 34 Mad 173, wherein their Lordships held that the plaintiff could maintain an action to restrain the defendant from interfering with his possessory right. It is true that in the decision in question, the law on the point was stated in very broad terms. Their Lordships observed:
'It is well settled law that a trespasser, in enjoyment of land for less than the statutory period, is entitled to be maintained in possession against all persons except the true owner.'
8. In Narasappayya's case, ILR 38 Mad 280: (AIR 1916 Mad 801), another Bench of the same High Court dissented from the proposition as laid down in Kondappa Rajan Naidu's Case, ILR 34 Mad 173. But the learned Judges constituting that Bench were of the opinion that the decision in Kondappa Rajan Naidu's case. ILR 34 Mad 173 could.be justified on the facts of that case. Miller, J. who delivered the leading judgment observed:
'Possession seems to involve an appropriation to the exclusion of others and with the intention of maintaining such exclusion and it seems impossible to apply such a conception to mere taking of water from a stream through a cut in the bank. There may be, no doubt, possession of the actual cut or channel through which the water is taken, and possession of the water once it is appropriated, and that possession might be protected and this seems from the record of the case reported in ILR 34 Mad 173, to have been the question there raised; the actual channel used exclusively by the plaintiff was obstructed by the defendant.' If the actual decisions are taken into consideration there is no conflict between the decision in Kondayya Rajan Naidu's case, ILR 34 Mad 173 and the decision in Narasappayya's case, ILR 38 Mad 280 : (AIR 1916 Mad 801). But undoubtedly there was divergence of opinion as regards the rights of a person who is still in the process of acquiring an easementary right. This divergence of opinion was set at rest in the Madras High Court by the decision of the Full Bench in Venkatanarasim-haraju v. Ramaswamy, AIR 1941 Mad 176. The judgment of the Full Bench was delivered by Leach, C. J.
The Full Bench was of the opinion that the considerations which may apply when the interference complained of has reference to the access of light and air or to support from adjoining land cannot necessarily apply when the interference has reference to the use of a way over another's land; a person who has been using a particular way over land adjoining his, but for less than the prescriptive period cannot in ordinary circumstances maintain an action to prevent a stranger from obstructing him using the way. Such an action can only be maintained where the obstruction to user has the effect of substantially depriving the person using the way of the enjoyment of his property. Referring to Kondappa Rajan Naidu's case, ILR 34 Mad 173, their Lordships observed:
'In ILR 34 Mad 173, Benson and Krishnaswamy Ayyar, JJ. observed that it was well settled law that if any trespasser was in enjoyment of land for less than the statutory period he would be entitled to protect that possession against any one but the true owner, went on to say that they did not think that there was any distinction in principle, because the right to be protected was in the nature of an incorporeal right in process of acquisition. This statement is certainly open to strong criticism and it was criticised in ILR 38 Mad 230 ; (AIR 1916 Mad 801) but as pointed out in that case, ILR 34 Mad 173 can be supported on the ground that the plaintiff was in possession of the channel which had been obstructed and having a possessory title had a cause of action against the defendant for obstruction.'
In this case the plaintiff sues on the basis of his possessory title as in Kondappa Rajan Naidu's Case ILR 34 Mad 173. We agree with the view taken by the Madras High Court. We may also mention that no contrary decision has been brought to out notice. Hence, we hold that the plaintiff can maintain the present action.
9. In the result, the appeal fails and the same is dismissed with costs.
10. Appeal dismissed.