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Chilukula Sanjeevappa and ors. Vs. Kummathi Anjanappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 719 of 1961
Judge
Reported inAIR1965AP174
ActsEasements Act, 1882 - Sections 15
AppellantChilukula Sanjeevappa and ors.
RespondentKummathi Anjanappa and ors.
Appellant AdvocateT.S. Narasinga Rao, Adv.
Respondent AdvocateV.S.L. Narasimharao, Adv.
Excerpt:
.....of twenty years - law does not protect right of way unless it has not ripened into an easement - right of easement falling short of full prescriptive period stipulated under section 15 cannot be called right - no action lies for infringing that right unless it matures into easement - plaintiff in instant case not to be given statutory protection as he has not enjoyed full period of prescription. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is..........enjoyment of an easement for any length of time short of the full period of prescription gave no right of action against a person obstructing the user. in that case, the plaintiff sought an injunction preventing the defendants from cutting a channel from a tank from which he watered some of his fields, so as to deprive him of the water. the dist. munsif granted the injunction, but this was dissolved by the dt. judge, who held that the plaintiff had no right to the water of the tank, though he had been in the habit of taking the water through a channel for some years. the learned judges upheld the decision of the dist. judge in second appeal.(8) in view of the conflict between the decision in ilr 38 mad 280 : (air 1916 mad 801) and in ilr 34 mad 173, the following question was referred.....
Judgment:

Satyanarayana Raju, J.

(1) This second appeal has been referred to a Division Bench by one of us (Venkatesam, J).

(2) The plaintiff, who is the 1st respondent herein, filed a suit for the following reliefs :

(1) Declaration of his right to let out water from the bath room of his house described in the schedule attached to the plaint through the sluice of the bath room into the open space south of the house ;

(2) A mandatory injunction directing the defendants to remove the obstruction caused by them to the sluice and put up a new slab at the place where there was an old slab as it was damaged on account of their obstruction ; and

(3) A permanent injunction restraining the defendants from interfering with his right to let out water from the bath room to the sluice into the open space south of the house.

The 1st respondent-plaintiff is the owner of the plaint schedule house situated in Nakkalapalli village in Kalyandurg taluk, Anantapur District. There is a bath room in the house in the southern portion. To the south of the house is a vacant site. The defendants are the owners of the houses situate on the southern side of the vacant site. The case of the plaintiff is that he and his ancestors have been using the bath room from times immemorial, that the house was constructed over 100 years back, that the open space adjacent to the wall does not belong to the defendants and that he and his ancestors had acquired a prescriptive right to discharge water from the bath room into the open space.

(2a) The defendants denied the plaint allegation that the sluice had been in existence from times immemorial and that the plaintiff and his ancestors had been exercising the right to let out water and that right was perfected by prescription. They claimed that they were the owners of the open space to the south of the plaintiff's house.

(3) The learned Dist. Munsif held that the plaintiff has acquired a prescriptive right to discharge water from the bath room of his house and that the open space to the south of the plaintiff's house does not belong to the defendants. On these findings, the trial court granted a decree as prayed for except with respect to the prayer for a mandatory injunction directing the defendants to replace a new slab.

(4) On appeal, the learned Subordinate Judge, Anantapur concurred with the trial Court holding that the defendants are not the owners of the open space to the south of the plaintiff's house. He, however, held that the plaintiff had not proved that he had exercised the right for over 20 years, but that, since the defendants are not the owners of the vacant site, they were not entitled to obstruct the plaintiff in the exercise of the right claimed by him.

(5) The facts found by the appellate court are these : The plaintiff had not established his claim that he had prescribed for his right to discharge water from his bath room on the vacant space south of his house by 20 years user and enjoyment. The defendants are not the owners of the vacant site. On these findings, the question for decision in this second appeal is whether the defendants can obstruct the plaintiff in the enjoyment of the right, which he claims.

(6) It is argued for the appellants that, as the right claimed by the plaintiff has not been enjoyed for the full prescriptive period, it is open to the defendants to obstruct the user and enjoyment of the right claimed by the plaintiff even though they are not the owners of the servient tenement. There are two decisions of the Madras High Court, which have taken the view that a person other than the owner of the servient tenement cannot obstruct the enjoyment of an easement by a person, though he has not acquired a title to it by prescription or otherwise. The cases in Acchanna v. Venkamma, 5 Mad LJ 24 and Kondapa Rajan v. Devarakonda Suryanarayana, ILR 34 Mad 173 support this contention. The second case refers to the first one and relies on the English decisions in Jefferies v. Williams, (1850) 155 ER 347 and Bibby v. Carter, (1859) 157 E R 795. The English cases deal with the right of lateral support and say that an action lies against a trespasser who causes injury to the plaintiff's land, even though he has not acquired a title to it.

(7) IN ILR 34 Mad 173, Benson and Krishnaswami Ayyar JJ. , after observing 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 the 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 the process of acquisition. In a later Bench decision in Narasappayya v. Ganapathi Rao, ILR 38 Mad 280 : (AIR 1916 Mad 801), Miller and Sadasiva Ayyar J J . held that mere enjoyment of an easement for any length of time short of the full period of prescription gave no right of action against a person obstructing the user. In that case, the plaintiff sought an injunction preventing the defendants from cutting a channel from a tank from which he watered some of his fields, so as to deprive him of the water. The Dist. Munsif granted the injunction, but this was dissolved by the Dt. Judge, who held that the plaintiff had no right to the water of the tank, though he had been in the habit of taking the water through a channel for some years. The learned Judges upheld the decision of the Dist. Judge in second appeal.

(8) In view of the conflict between the decision in ILR 38 Mad 280 : (AIR 1916 Mad 801) and in ILR 34 Mad 173, the following question was referred to the decision of a Full Bench.

' Whether a person who is in the enjoyment of an easement but who has not acquired a title to it by prescription or otherwise, can maintain an action to prevent its obstruction by any person other than the owner of the servient tenement ?'

When the case came up before the Full Bench, in Venkatanarasimha Raju v. Ramaswami, 1941 (1) Mad LJ 145 : (AIR 1941 Mad 176) the question for decision was re-framed by the Court as follows :

'Can a person who has been using a particular way over land adjoining his, but for less than the prescriptive period, maintain an action to prevent a stranger from obstructing him using the way ?'

The learned Judges of the Full Bench held that 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 and that such an action can only be maintained, if the obstruction to user will have the effect of substantially depriving the person of the enjoyment of his property. The Full Bench ruled that the case in ILR 38 Mad 280 : (AIR 1916 Mad 801) was rightly decided.

(9) Under Sec. 15 of the Easements Act, the plaintiff' in order to acquire an easement, has to establish that he enjoyed the right for a period of 20 years. By enjoying the right for a number of years short of the prescriptive period, he may have a greater prospect of establishing his right. But then it will not be an easement. So long as the right of way has not ripened into an easement, the law does not protect such a right. The plaintiff has either acquired an easement by enjoying the right for the full period of prescription or he has not. Though the plaintiff might have exercised his right for a number of years, he has not enjoyed that right for the full prescriptive period. An inchoate right is not protected by law even against a stranger so long as the right remains incomplete and does not ripen into an easement. That being so, no action lies for infringing that right till it matures into an easement.

(10) It is, however, argued by the learned counsel for the plaintiff 1st respondent that even the learned Judges of the Full Bench have recognised that an action can be maintained if the obstruction to user will have the effect of substantially depriving a person of the enjoyment of his property. What the learned Judges of the Full Bench did recognise may be stated in their own words :

'In a very exceptional case where access to the plaintiff's land would otherwise be cut off altogether, a suit might be maintained against a stranger on the principle propounded in (1850) 155 ER 347, but not otherwise.'

But in the present case, what is claimed by the plaintiff is a statutory right. The statute recognises that a right like the one now claimed by the plaintiff can be perfected by its enjoyment for the full period of prescription. Therefore, there is no question of the plaintiff claiming that his is an exceptional case falling within the observations contained in the decision of the Full Bench.

(11) The learned counsel for the respondents attempted to distinguish the decision of the Full Bench by pointing out that what was claimed in that case was a right of way. We may observe that , under Sec. 15 of the Easements Act, a right of way is placed exactly on the same footing as any other right of easement. It was also argued that, under Sec. 54 of the old Specific Relief Act, which corresponds to Sec. 38 of the present Act, any injunction can be granted in respect of 'a right'. A right of easement falling short of the Full prescriptive period of 20 years prescribed by Sec. 15 can, in no sense, be called a right. That being so, no action lies for infringing that right till it matures into an easement. As we have already pointed out, an inchoate right is not protected by law even against a stranger so long as the right remains incomplete and does not ripen into an easement.

(12) The principle propounded in the decision in ILR 38 Mad 280 : (AIR 1916 Mad 801) which has been affirmed by the Full Bench directly applies to the present case. If so, the plaintiff cannot maintain an action for the reliefs claimed by him.

(13) The second appeal is allowed and the suit is dismissed with costs throughout.

JH/ MVJ/ D. V. C.

(14) Appeal allowed.


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