1. The Second Appeal is preferred by the defendant against the judgment and decree of the Fist Additional Subordinate Judge, Vijayawada in Appeal Suit No. 67 of 1971 by which the learned Subordinate Judge set aside the decree and judgment passed by the learned Principal District Munsif, Vijayawada in Original Suit No. 406 of 1969 and decreed the suit of the plaintiff as prayed for.
2. The plaintiffs filed the suit for perpetual injunction restraining the defendant from interfering with the plaintiffs' exclusive possession of the site covered by Plot Nos. 2 to 4 of the plaint plan by using the door-ways marked Q and R, therein and for a mandatory injunction directing the defendant to get the loose earth and stones placed at the door-way marked Q removed. According to the plaintiffs the suit property was bequeathed to the first plaintiff who is the wife of the second plaintiff by her father under a will, Ex. A-1 dated 14-4-1956. It was also alternatively pleaded that the plaintiffs have been in uninterrupted, open, notorious and exclusive possession for over 20 years with the animus of ownership in plots 2 to 4 and thereby perfected their title by the long and continuous possession to those plots. It was alleged that there is a Mandapam JKHM shown in the plaint plan which was never used by the defendant for any religious purposes of the temple for over a period of 50 years and that the officials of the defendant are threatening to interfere with the plaintiffs' right to and possession of the suit property. Therefore, the plaintiff filed the suit. The defence in the suit was that the plaintiffs have no manner of right, title or interest to the plots 2 to 4 of the plaint plan and that the said plots are owned by and have been in exclusive possession of the defendant-Devasthanam. It was also alleged that the Mandapam was used for Brahmotsavams for deity till a new Mandapam was constructed recently.
3. The only document filed by the first plaintiff to establish her ownership to the three plots was Ex. A-1, a copy of an unregistered will. P.W. 1 its scribe and P.W. 3, the attestor, are also examined to prove it. It is stated that the original will had become too old for preservation in Court. The testator, it appears, died. The defendant Temple filed Ex. B-1, the survey map showing alignment of survey numbers and Ex. B-2, the survey extract of the Town Survey Register showing Survey No. 353 to belong to Venkateswaraswamy Gudi. The Executive Officer has examined himself as D.W. 1. D.Ws. 2 to 4 are examined to show that the Mandapam has been in existence for the last 50 or 60 years and that 'Utsavams' were being performed in the Mandapam till the construction of a new Mandapam inside the temple about 15 years ago. The trial court, on a consideration of the entire evidence in the case held :
1. That the first plaintiff failed to establish her title to plots 2 to 4 of the plaint plan,
2. That the defendant-temple established its right to and possession of the suit sites;
3. That the concept of ownership is incompatible with and cannot co-exist with any easementary right in respect of the property when the ownership is claimed; and
4. that the suit claim is false and frivolous to the knowledge of the plaintiffs. Consequently, the suit was dismissed and the plaintiffs were directed to pay exemplary costs of Rs. 200 to the defendant.
4. On appeal, the learned Subordinate Judge affirmed the finding of the trial court that the lst plaintiff failed to establish her title to the suit property. He however, held that the first plaintiff through her tenant has been using the vacant site for the past 20 years to reach the door-ways 'Q' and 'R' and thereby acquired an easementary right to use the plots for ingress and egress. Consequently, he decreed the suit.
5. The only question that was debated before me in detail was that the claim of the first plaintiff right from the plaint to the conclusion of the trial is that she is the full owner in conclusive possession and enjoyment of the plots 2 to 4 and such claim disentitles her to claim any easementary rights which is incompatible with one's own ownership over the same.
6. Now it would be useful to look at the definition of 'an easement' defined under Section 4 of the Indian Easements Act (Act V of 1882.
'4. 'Easement defined' : An easement is a right which the owner or occupier of land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon or in respect of, certain other land not his own.'
Dominant and servient heritage and owner : The land for the beneficial enjoyment of which the right exists is called the 'dominant heritage' and the owner or occupier thereof the 'dominant owner' the land on which the liability is imposed is called the 'servient heritage' and the owner or occupier thereof the 'servient owner.'
7. It is clear from the definition that one of the essential characteristics of every easement is that there are two distinct tenements--the dominant to which the right belongs and the servient upon which the obligation is imposed and the dominant and the servient owners being different persons. The words 'not his own' in the section are highly significant. It is imperative that the owners of the servient tenement and dominant heritage must be different. A person cannot acquire as easementary right over his own land because all acts done by him over his own land are acts done in exercise of his rights as owner of the land and the prime requisite of 'animus' for acquisition is thereby absent. The right of easement becomes extinguished the moment the ownership in the two tenements becomes vested in one and the same person. Co-existence of an easement along with the ownership of the land itself is not allowed under the law. Some of the decided cases, which are relevant, may now be examined.
8. In Subba Rao v. Lakshmana Rao, AIR 1926 Mad 728 (FB) a Full Bench of the Madras High Court observed as follows :
'The learned Judge in Konda v. Ramasami, (1915) ILR 38 Mad 1 = (AIR 1916 Mad 718) seems to imply that the period of user is not fatal to the success of a claim to an easement. To this proposition we cannot assent. Our opinion is that while the mere putting forward of a wider claim in legal proceedings is not conclusive against a right of easement, yet the question quoanimo egerit to what purported character are the acts of user to be ascribed is one which the Court must answer, and if Konda v. Ramaswami (supra) implies the contrary we think it is wrongly decided. We agree with the conclusion of Shearman J. in Lyell v. Lord Hothfield, (1914) 3 KB 911 that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement.'
9. To the same effect is the decision of the Bombay High Court in Marghabhai Vallavbhay v. Motibghai Mithabhai, (AIR 1932 Bom 513), in that case the learned Judge after consideration of several Indian and English authorities held :
'A person cannot acquire an easement unless he acts with the knowledge that it is a case of a dominant and a servient tenement and that he is exercising a right over property which does not belong to him. If he enjoys a right under the supposition that he is an owner of property he does not acquire an easement.'
10. In Abdul Kayum v. Motiram, AIR 1927 Nag 334 it was held that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement. Their Lordships of the Privy Council in Attorney General for Nigeria v. John Holt and Co. Ltd., (1915)AC 599 held :--
'An easement, however, is constituted over a servient tenement in favour of a dominant tenement. In substance the owner of the dominant tenement throughout admits that the property is another's and that the right being built up or asserted is the right over the property of that other.'
11. Another Full Bench of the Bombay High Court in Raychand Venmalidas v. Maneklal Mansukhbhai, AIR 1946 Bom 266 (FB) had occasion to consider the question of acquisition of an easement by a person claiming ownership. The learned Judges observed :
'To prove that the right was exercised as an easement it is necessary to establish that it was exercised on somebody 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 somebody else's property is a necessary ingredient in proof the establishment of that right as an easement. If a person has actually claimed ownership of the servient tenement in a previous litigation within the statutory period of twenty years, it may be regarded as an important piece of evidence to show that he did not exercise that right as an easement.'
12. From the aforesaid decision of the authorities it is clear that the acts done by a person during a statutory period which are only referable to the purported character of owner thereto cannot validate a subsequent claim to acquisition of an easement over that property.
13. The question that has to be decided is whether the first plaintiff exercised her rights over plots 2 to 4 under the supposition that she is the owner of the property. In this case, the first plaintiff's case is consistent right from the plaint to the close of the trial that she is the full and absolute owner in possession and enjoyment of plots 2 to 4. The prayer in the plaint is for a perpetual injunction restraining the defendant from interfering in any manner, with the first plaintiff's exclusive possession of the site covered by plots Nos. 2 to 4 of the plaint plan and in using the door-ways marked as 'Q' and 'R' therein. In paragraph 2 of the plaint it is stated that plots 1 to 4 as shown in the plaint plan belong to the plaintiff, that she got the said property through her father under a will duly executed by him on 14-4-1959. Again in paragraph 4 it is stated :---
'Thus all the plots 1 to 4 for all these years have been in exclusive possession and enjoyment of either the predecessors-in-title of the plaintiff or the plaintiff herself. No one at any time even exercised rights of ownership or possession thereto.'
Again in paragraph 8 it is further stated :
'The lst plaintiff is in exclusive, uninterrupted, open, notorious and continuous possession of plots Nos. 2 to 4 with the animus of ownership thereto even to the knowledge of the lst defendant and its officials. Thus even in that view of the case the lst plaintiff perfected her right by her long and continuous possession as detailed above to plots 2 to 4 of the plaint plan.'
14. At the stage of evidence, P.W. 1, the tenant, stated that he was using the suit plots under the impression that they belonged to their house owner. P.W. 3 also admitted that he tethered his cattle from 1957 to 1962 in the suit plot under the impression that they belonged to the first plaintiff. The second plaintiff who has examined himself as P.W. 5 stated :
'I find the suit for a permanent injunction from interfering with my possession and enjoyment of plots 2,3 and 4 and for removal of the obstructions in front of Q .......... plots 1 to 4 in plaint plan Ex. A-2 belong to her having been got from her father under a will of which the certified copy is Ex. A-1............ Defendant is fully aware of my long uninterrupted and peaceful possession and enjoyment of the plots 2, 3 and 4.'
15. It is thus the consistent case of the fist plaintiff that she exercised a right over plots 2,3 and 4 of the plaint plan under the supposition that she is the owner of the property. The rights exercised by the first plaintiff over the suit property cannot be referable to the purported exercise of the rights over a servient tenement which does not belong to her. The learned Subordinate Judge has obviously committed grave error in relying upon the decision of the Rajasthan High Court in Shivprari v. M.T. Sardari (AIR 1966 Raj 265), in preference to the binding decisions of the Madras High Court (referred supra) rendered in 1926. The judgment and decree of the learned Subordinate Judge, are set aside and the suit is dismissed. The second appeal is allowed accordingly with costs throughout. No leave.
16. Appeal allowed.