(1) This is an appeal by the plaintiff whose suit has been dismissed by both the Court below.
(2) The question that has been raised in this appeal is whether the plaintiff, who claims a prescriptive right over the servant tenement belonging to the defendants at the time of the suit but which prior thereto belonged to Government , has to prove user for period of 20 years or 60 years in order to acquire the right of easement. A subsidiary point was also raised viz ., whether the plaintiff can tack on the user against the Government prior to 1951 when defendants 1 and 2 were assigned the two survey Nos. Viz., 288 / 2B and 288 / 2A respectively.
(3) The relevant facts which are necessary for the purpose of understanding the two points raised above may shortly be stated as follows :
(4) The plaintiff is the owner of S. Nos. 50/2, 50/7, 50/8, and 50/11. Defendants 1 and 2 are the assignees of the lands S. Nos. 288/2B and 288/2A respectively from the Government in the year 1951; i.e., before the year 1951, these two lands belonged to the Government. From the sketch prepared by the Commissioner's, it can be seen that a channel or thodu runs from South to North through S. Nos. 288/2B and 288/2A. It is the plaintiff 's case that he is entitled to take water from the two 'Madagas' marked as A-1 and A-2 in the Commissioner's plan to his Betty fields for raising the yennel crops whenever the rains fail, through the channel shown in the Commissioner's plan. Defendants 1 and 2 have, in the year 1952, intercepted the flow of water through the channel by filling up the portion of the channel at point B - 1. The water in those 'Madagas' passing through the channel is necessary for his yennel cultivation and he and his predecessors-in-title have been using the water as of mamool right and have acquired the right easement by uninterrupted enjoyment during the statutory period to have the flow of water uninterruptedly. Defendants 1 and 2 have no right to intercept the water and, therefore, the plaintiff asked for a declaration that he is entitled to take water as stated above and prayed for a permanent injunction restraining defendants 1 and 2 from choosing any portion of the said thodu or channel running through their lands S. Nos. 288/2A and 288/2B and to direct them to restore the thodu blocked by them to its original condition.
(5) Defendants 1 and 2 contested the suit denying the plaintiff 's right. They denied that they have destroyed or filled up any portion of the thodu , and contended that the thodu was recently made by the plaintiff. The two 'Madagas' are situate in the land of the third defendant. Defendants 4 and 5 are also entitled to make use of the water and, therefore, they contended that defendants 3 to 5 were necessary parties. Accordingly , defendants 3 to 5 were made party - defendants.
(6) I may state that Mr. G . K. Govinda Bhat, the learned counsel for the appellant- plaintiff, has stated that he would confine his case against defendants 1 and 2 only. Therefore we are not concerned with the contentions raised by defendants 3 to 5.
(7) Both the Courts below have held that the plaintiff has failed to prove the user for sixty years, as, in their view, the plaintiff 's case fell under the last paragraph of Section 15 of the Easements Act. Therefore the plaintiff 's suit came to be dismissed.
(8) Mr. Govind Bhat contends that the plaintiff is entitled to succeed if he proves the uninterrupted user for 20 years ending within two years next before the institution of the suit . in other words the contention is that his case falls within the provisions of Para (3) of Section 15 of the Easement Act and that the last paragraph of the section has no application. On the other hand, the learned counsel for respondents contends that it is the last paragraph that is applicable to the facts of the case.
(9) I have therefore, to see and determine whether it is the last paragraph or paragraph (3) that is applicable to the facts of the case. There can be no doubt that if the case comes within the last paragraph, then the plaintiff must fail as both the Courts below have held that he has failed to prove the user for sixty years . If , on the other hand, the case comes within the provisions of paragraph (3), then the plaintiff is entitled to have the period of the user determined as required by Para (3) since the Courts below have not given a finding as to whether the plaintiff has proved required under paragraph (3) above.
(10) The plaintiff has claimed the acquisition of this right by prescription. Section 15 of the Indian Easement Act, 1882, deals with the acquisition easement by prescription. We are in this case concerned with paragraphs 3 to 5 and the last paragraph of this section which reads as follows:
' Where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement, shall be absolute.
' Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.'
The last paragraph reads as follows :
'When the property over which a right is claimed under this section belongs to Government, this section shall be reads as if, for the words ' Twenty years ', the words 'Sixty years ' were substituted. '
(11) Thus it will be seen that in cases where the easement right has been claimed over the property other than of the Government , the user must be for 20 years ending within two years, next before the institution of the suit wherein the claim is made, and when a right of easement is claimed over the property belonging to the Government, then the user must be for a period of sixty years.
(12) It is to be seen that it is not by a mere user for a particular period as required by the section that easement by prescription can be acquired. An easement right does not become absolute unless it has been claimed and determined in a suit. This is clear from Para (3) of Section 15 of the Easement Act. It is only when the claim is made in a suit that the prescriptive rights become crystallised. Till then the right claimed is an inchoate right. Therefore the point of importance is the point of time when the right is claimed in a suit over a servant property and it is only at that time we have to see to whom the servant tenement belongs ; if the tenement belongs to the Government, then the claimant must prove the user for a period of 60 years ; if it belongs to a private individual, then the claimant must prove the user for 20 years.
(13) Although what I have stated above appears to be tolerably simple, it cannot be disputed that the reported cases on the question are not altogether consistent. There seem to be two divergent views and I have therefore to see which of the views is reasonably good for acceptance.
(14) This divergence of views has been occasioned by the words 'belongs to Government ' appearing in the last paragraph of Section 15 of the Act. One view is that the word 'belongs ' is used in the present tense ; and, therefore, when the right is claimed must prove the user for sixty years. The other view is that the words 'belongs to Government ' must refer not to the suit but to the time during which the easement is enjoyed.
(15) The High Courts of Bombay, Lahore, Allahabad and Rajasthan have taken the view that the words ' belongs to Government ' must be interpreted to mean that the property over which the right is claimed in a suit must belong to the Government when the right is claimed. As against this, High Court of Madras has taken a contrary view. The view taken by the High Court of Madras seems to have been subsequently approved in a later decision of the Allahabad High Court to which I shall refer later.
(16) I shall first refer to cases wherein the first view has been taken. The decision in Jehangirji Jamshed v. Nariman Burjorji, : AIR1953Bom318 is the decision of Division Bench . The matter was taken in appeal to the Division Bench under Letters Patent against the decision of a single Judge. The single Judge took view that
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 S. 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 S. 15 cannot be said to apply to the property in the present suit because it does not now belong to the Government. '
This view of the learned single Judge was approved by the Division Bench. Their Lordships have stated :
'On a true construction of the last paragraph of S. 15 Easement Act we think that when at the date of the suit the property belongs not to Government 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.'
(17) A similar view was taken by the Lahore High Court in the decision Saya Ram Das v. Lahore Electric supply Co. ltd. AIR 1952 Lah 124, wherein their Lordships have observed that the word ' belongs' should be given its plain meaning and should not be interpreted by a forced construction as equivalent to 'has belonged', as interpreted by the High Court of Madras.
(18) In the decision Municipal Board, Pilibhit v. Khalil -ul -Rahman, AIR 1929 All 382, it has been held as follows :
' The provision in S. 15 requiring 60 years use to establish an easement refers to the date when the easement is claimed.'
To the same effect is the judgment reported in Kesrichand v. Chananmal , . It has been held that the extended period in the last Para of S. 15 does not apply to suits where the property does not belong to the Government when the suits are filed, that the use of the verb 'belong' in the present tense in S. 15 last Para indicates that the Government must be the owner of the servant tenement at the time when the right is claimed in the suit and that the words ' belong to the Government ' cannot refer to the time during which the easement is enjoyed if plain meaning is given to them.
(19) Thus it will be seen that the High Court of Bombay, Lahore , Allahabad and Rajasthan have interpreted the words ' belongs to the Government ' to mean that the servant tenement over which a right is claimed must belong to the Government when the right is claimed in a suit.
(20) A contrary view has been taken by the High Court of Madras in ILR 41 Mad 622, which is equivalent to AIR 1918 Mad 120, Srinivasa Upadya v. Ranganna Bhatta. In that case, the servant tenement belonged to Government till two years before suit and was then assigned by Government to the defendant. At the time at assignment the easement had been exercised only for thirty or forty years. It was, therefore, contended in that case that the servant tenement became the property of a private individual against whom the previous thirty or forty years enjoyment would be sufficient under Section 15 of the Easement Act. That contention was negatived by their Lordships by interpreting that the words ' belongs to Government'
in the last paragraph of Section 15 must refer, not to the time of suit but to the time during which the easement is enjoyed.
(21) The argument in support of the view expressed by their Lordships of the Madras High Court seems to me, with very great respect to their Lordships, to be somewhat inconsistent and self -contradictory. Their Lordships have stated :
'An easement can only be acquired by twenty years enjoyment against a private person or by sixty years enjoyment against Government.' They have further stated :
' It may be that 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 good his title by twenty years' enjoyment against the transferee ' after the transfer ' ( The underlining (here in '' is mine ).
It could be seen from the observations of their Lordships that in the case of a transfer by the Government to a private party they have stated that it is permissible for the claimant to make up the deficiency by a subsequent enjoyment against the transferee. That means, the claimant can tack on the period of the previous user against the Government to the subsequent user against the transferee. At the same time, it is stated that a person claiming an easement against a private individual must make good his title by 20 years enjoyment against the transferee after the date of transfer. Therefore according to their Lordships, whenever a claim is made against a transferee from the Government, the claimant must prove the user for a period of 20 years against means, he is not entitled to tack on the user made by him before the transfer. This, in my view, with very great respect to their Lordships, is an argument which is self -contradictory.
In support of that view, their Lordships have further stated that in cases where the transfer of a servant tenement by a private owner is made to Government and the claimant of easement by prescription has completed a period of twenty years before the transfer of the servant tenement, it would have the effect of destroying an easement right acquired by the claimant against the transferor by the user of 20 years' enjoyment and, therefore, their Lordships were not prepared to hold that the interpretation which would have the effect of destroying the easement legitimately acquired is reasonable. Here again , with very great respect to their Lordships , this argument assumes that the user for a period of 20 years by itself is sufficient to acquire a right of easement.
( 22) It is to be noted that the right of easement differs in some respects from other rights in that mere effect of time does not create an easement. It is the action brought which turns what can be called an 'inchoate right 'into a 'absolute right'. In this connection, I may refer to the dictum of Lord Macnaghten in Colls v. Home and Colonial Stores, Ltd. 1904 AC179.
'Unless and untill the claim or matter is thus brought into question, no absolute or indefeasible right can arise under the Act. There is what has been described as an inchoate right. The owner of the dominant tenement after twenty years' uninterrupted enjoyment is in a position to avail himself of the Act if his claim is brought into question. But in these meantime, however long the enjoyment may have been, his right is just the same. '
Thus it could be seen that mere uninterrupted enjoyment for 20 years or more by itself would not create a right in favour of the claimant unless that claim has been made and determined in a suit. This is also clear from Para (3) of Section 15 of the Act. The claimant may avail himself of the period of uninterrupted enjoyment to prove his claim. Therefore the assumption made by their Lordships of Madras High Court that mere user for 20 years would by itself create a right easement in favour of the claimant, is not justified. Therefore, with great respect, I am unable to agree with the conclusion reached by them. In my view, therefore, the words 'belongs to Government ' indicate that the Government must be the owner of the servant tenement when the right is claimed in a suit.
(23) This decision of the Madras High Court has been dissented from by the High Court of Bombay, Lahore and Rajasthan and though it appears to have been approved in a later decision of the Allahabad High Court, it is clear that the later decision on the question of easement was merely an obiter.
(24) The later decision of the Allahabad High Court in Lalit Kishore v. Ram Prasad, AIR 1943 All 362. That was a decision of a Division Bench. The judgment was delivered by Allsop, J.in the course of which his Lordship has stated.
' On the finding of fact that the plaintiff had the animus of an owner and not the animus of a person exercising a right of easement over the land of another no right of easement could be perfected. In my judgment, therefore, the appeal should be allowed . . . . . . . . . . . '
Thus it will be seen that the easement claimed in that case was not claimed with the animus of acquiring the easement right. Therefore it was held that the plaintiff should fail. The other learned Judge, Collister, J., agreed with him in holding that the plaintiff respondent had not the animus of a person exercising a right of easement over the land of another. Therefore, in his view , the plaintiff's suit had to be dismissed. He did not express himself on the question of easement as it did not directly arise for consideration. Therefore, any expression of opinion by his Lordship Allsop, J. must be held to be obiter. On the other hand, the view taken in AIR 1929 All 382 to which I have already referred is against the view taken by the High Court of Madras. I have already given my reasons as to why I find myself unable to agree with the views of their Lordships of the High Court of Madras.
(25) Thus it could be seen that the consensus of judicial opinion seems to favour the view that the words 'belong to the Government' appearing in the last paragraph of S. 15 must mean that at time when the right is claimed in a suit the servant tenement must belong to Government. If it does, then the rule of sixty years' users cannot be applied and the person claiming the prescriptive right against a private individual can succeed if he establishes the user over servant tenement for period of 20 years ending within two years next before the filling of the suit. In my view, that seems to be correct view to take as to interpretation of the words ' belong to the Government ' appearing in the last paragraph of S. 15 of the Indian Easement Act .
(26) If that is so, then, in this case , when the suit was filed by the plaintiff in the year 1952, defendants 1 and 2 were the owners of suit S. Nos 288 /2B and 288/2A respectively. Therefore, all that is plaintiff is required to prove is the user for a period of 20 years ending within two years next before the institution of the suit, and if he establishes the user for the statutory period, then he is entitled to succeed .
(27) The other subsidiary point which I have stated is whether the plaintiff can tack on the user against the Government in this case, prior to 1951, when defendants 1 and 2 were assigned as S. Nos. 288/2B and 288/2A respectively which belong to the Government. There seems to be no reason why the plaintiff should not be permitted to tack on the user against the Government before the lands were assigned to the defendants in the year 1951. The plaintiff may avail himself of the period of the un-interrupted enjoyment for the statutory period to prove his acquisition of easement right. The High Courts of Bombay, Lahore and Allahabad have taken the view that a claimant can tack on the pervious user against the subsequent transfer and, with respect, I am in entire agreement with that view. Therefore, I hold that , in this case the plaintiff is entitled to tack on the pervious user against the Government prior to 1951 in proving the user for 20 years ending within two years next before the institution of the suit.
(28) For the reasons given by me above, the decision of the lower Courts cannot be accepted and the same is hereby set aside. The Courts below have not determined the period of the plaintiff 's user. Therefore I remand this case to the trial Court with a direction to determine whether the plaintiff has acquired the easement right by prescription by uninterrupted enjoyment for a period of 20 years ending within two years next before the filling of the suit and to dispose of the suit in the light of its finding according to law.
(29) Since the plaintiff has not pressed his claim against defendants 3 to 5 in this suit, their names as party- defendants have been struck off.
(30) The costs of this appeal will be costs in the cause.
(31) Case remanded.