1. This is a second appeal by the defendant B.N.W. Railway Company against the decree passed by the lower appellate Court in favour of the plaintiffs. The plaintiffs brought a suit on the allegation that they had built their houses about 30 years ago in a village Musapur close to Azamgarh railway station and that in front of those houses there always existed a piece of vacant land and that the Railway Company has recently made trenches and ditches marking the boundary of the railway property apparently and that these constructions-rendered entry in an exit from the house of the plaintiffs almost impossible and interfere with their enjoyment of light and air and therefore with their right of easement. The plaintiffs prayed for a perpetual injunction restraining the defendants from making such constructions and for demolition of the constructions made. The defence of the Railway Company was that the land was the property of Government acquired under the Land Acquisition Act (Act No. 1 of 1894) in the year 1896 and that the ownership of the land vested in Government and that the period of acquisition of an easement against Government was 60 years and therefore the easement alleged by the plaintiffs has not been acquired. The trial Court held that the land was property of the Government and that the period of 60 years user was not alleged by the plaintiffs and therefore the plaintiffs could not have acquired any right of easement. The suit was therefore dismissed. The defendant appealed and the lower appellate Court confirmed the finding that the land was property of the Government and that the period for acquiring an easement against Government was 60 years and therefore no easement had been acquired. But the Court held from an inspection note of the Munsif that the plaintiffs would be inconvenienced by the constructions and that the constructions were in the nature of nuisances and therefore the Court granted a decree and an injunction as asked for in the plaint. The ground urged in second appeal by the Railway Company is that the plaintiffs have no right to the relief granted because they had no right of easement.
2. Learned Counsel for the respondents has contended that the Courts below were not correct in holding that the land was property of the Government. Under Section 43, Land Acquisition Act, it is provided that the provisions of Ch. 7 for the acquisition of land for companies do not apply to the case of acquisition of land for a railway under an agreement between the company and the Secretary of State for India by which the Government is bound to provide land. Presumably therefore such land is acquired by Government under the earlier provisions, of the Act and becomes the property of Government and not the property of the Railway Company. This is what has been found by the Courts below and there is no reason to interfere with that finding. Learned Counsel for the respondents further argued' that under Section 4, Easements Act, para. 2 an easement could be acquired against the occupier of the land, although it may not be acquired against the owner. The words used are the land on which the liability is imposed is called the servient heritage and the owner or occupier thereof the servient owner. His argument was that by the alleged use of the land for a period of 30 years a right of easement may be acquired against the Railway Company as occupier, although there would be no right of easement against Government as the owner of the land as the period of 60 years has not been fulfilled. But we are of opinion that the Easements Act does not contemplate any such acquisition of an easement against an occupier and not against an owner. In our view an easement is acquired in the land and not against one or more of the persons interested in the land.
3. In Section 15, Easements Act after enumerating the different kinds of easements including those claimed in the present ease, the section proceeds to state 'the right to such access and use of light or air, support or other easement shall be absolute'. As the section states that the right acquired by prescription shall be absolute, it is not possible to hold that such a right should exist only against the occupier and not against the owner. If the right is absolute, it must be a right in the land itself and an absolute right against all persons connected with the land whether as owners or as occupiers.
4. The cross-objection was not pressed in view of the finding that the land belongs to Government and in the view we take of the law of Easement. Accordingly we allow this second appeal and dismiss the suit of the plaintiffs throughout with costs. The original papers filed by the defendant in the lower Court will be returned to the appellant's counsel.