1. This is an appeal under our Letters Patent against a judgment of learned single Judge of the Court. The appeal arises out of a suit which was instituted by the respondent, Ram Prasad, against the appellant, Lalit Kishore, in order to obtain an injunction that the latter should not interfere with certain alleged rights of easement claimed by the former over a plot of land lying between his house and the public road. The plaintiff claimed a right to maintain a latrine upon the land in suit, to discharge water from his roof upon it, to carry the water away by means of a drain across it and to exercise a right of way over it. The plaintiff had instituted a similar suit in the year 1932. He then sought an injunction upon the ground that he had acquired a title to the land by adverse possession. His immediate cause of action was that the defendant had cut down a tree growing upon the land but he also alleged that he had a latrine on, and water spouts over, the land. The defence was that the land had been transferred to the defendant by the Municipal Board acting as agent on behalf of the Government to whom the land had originally belonged. It was held definitely by the first Court of appeal and by this Court that the land had belonged to the Government and that the plaintiff had not acquired any right by adverse possession because he had not established possession over a period of 60 years.
2. The present suit was decreed by the trial Court but was dismissed by the first appellate Court. The learned Judge held that it was res judicata between the parties that the land had belonged to the Government and consequently that the plaintiff could not succeed unless he could show user over a period of 60 years which he had failed to do. He also held that the plaintiff had not proved that he had at any time been exercising any rights over the land as rights of easement. On second appeal to this Court, a learned single Judge restored the decree of the trial Court. It seems to me that one of the real points at issue was somewhat obscured by the emphasis which was laid before the learned single Judge upon the question whether the plaintiff was barred from setting up easements in this case when he had set up his proprietary possession in the case in 1932. That question undoubtedly arose but the real point was not whether the plaintiff could plead or set up an easement but whether he had proved the necessary facts which would give him a right to an easement. In the two cases of this Court which were quoted to establish the proposition that the plaintiff's previous plea of proprietary possession was no bar to his setting up a plea of easement, namely, the case in Chadammi Lal v. Shib Charan ('05) 2 A.L.J. 59 and the case in Dwarka v. Ram Jatan ('30) 17 A.I.R. 1930 All. 877 and in the Madras case in Subha Rao v. Lakshamana Rao : AIR1926Mad728 , it was clearly pointed out that the plaintiff might set up an easement but that he had to prove in order to succeed that he had had the necessary animus. These cases lay down a proposition which is otherwise definitely established that physical acts alone do not give rise to a right of easement. Physical acts must be accompanied by the requisite animus or intention. In order to acquire a right of easement, a person must not only do the necessary physical acts over the period prescribed by law but he must be setting himself up as the person who is doing those acts over the property of another. If he is setting himself up as the owner in possession of the property he cannot acquire any right of easement :
User which consists of acts attributable to a claim to a title in the soil is not such user as will support a claim to an easement: Halsbury's Laws of England relying upon Lyell v. Hothfield (1914) 3 K. B. 911
3. The cases which I have mentioned above also establish the point that this question of animus is a question of fact. If the plain. tiff was in fact throughout the period claiming to be the owner of the soil and exercising his right over the soil as an owner, he would not acquire an easement. The fact that he pleaded in the former case that he was an owner would not debar him from pleading in this case that he had been in fact setting himself up as a person exercising an easement but it is obvious that both propositions could not be true. A man may say, 'I contend that I have been in possession of this land for twentyfive years or that I have been acting as though I was the owner of it but if I cannot prove that or if you do not believe me, I can at least prove that I have been exercising a right of way over the land and have been setting myself up as a person entitled to use the way as of right over the land of another.' The question before the Court, however, will be whether either of these allegations is true. If the former is true the Court will give the plaint-tiff the rights of an owner in possession. If the latter is true, it will give him a right of easement. It obviously cannot find that both allegations are true at the same time, and it has to decide whether either of them is true. In the case which is before us the learned Judge of the first appellate Court whose findings of fact are binding upon us found that the plaintiff had failed to prove that he had exercised any rights by way of easement. He says :
Even as regards this user there is no evidence that it was exercised as an easement. In the previous suit as well as in this suit the plaintiff claimed himself to be the owner of the disputed land. There is not a word in the plaint to show that the right wag exercised by him not as an owner but as an easement.
4. This finding not only binds us but appears to be justified by the facts. The plaintiff certainly admitted in the previous suit that he had been treating the land as his own property and he claimed possession over the whole of it as its owner by prescription. He might have said in the present suit that his previous claim was not justified, but the learned Judge is right in saying that even in the plaint in this suit he said that he was the owner in adverse possession, although he subsequently claimed a right of easement. The learned Judge says that there is no evidence against this admission and we have no reason to suppose that his statement is Wrong. 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 and the judgment and the decree of the learned Judge of the first appellate Court should be restored.
5. In this view of the matter it is strictly unnecessary for me to express any opinion upon the other points which have been raised, but as there has been considerable argument about them, I will express my views upon them. The first question is whether it was res judicata between the parties that this land had belonged to the Government before it was transferred to the defendant. The learned single Judge of this Court thought that the decision in the previous suit could not have the effect of res judicata because it was unnecessary to decide in that suit whether the Government was or was not at one time the owner of the property. The learned Judge was of the opinion that the only question at issue was whether the plaintiff had established his title and if he failed to do so, it was unnecessary to consider in what other person the title had vested. With great respect I cannot accept this argument. As the plaintiff was claiming a right of ownership by adverse possession it was necessary to decide what period of possession would give him such a right. It was necessary therefore to decide whether his possession had been adverse to a private person or to the Government and the question whether the Government was the owner was one which had to be decided. In the second place whether it was strictly necessary to decide the question or not it was a question which was clearly put in issue between the parties, at least in substance if not in form, and the decision upon it would be binding. In the third place the plaintiff when he claimed to be the owner was bound only to prove that he was in possession because once he proved that he was in possession, it was for the other party to rebut the presumption in his favour under the provisions of Section 110, Evidence Act. One way (and probably the only way) in which the defendant could rebut the presumption was by proving positively the title of some other person. He set out to prove that he had acquired the title from the municipal board acting as the agent of the Government and consequently he had to prove that the Government had been the owner of the property before it was transferred to him. This was a question which it was necessary for the Court to decide. In my judgment, it was clearly res judicata between the parties that the Government had been the owner of the property before it was transferred to the defendant.
6. On the assumption that the property had vested in the Government within a period of twenty years next before the institution of the suit a further question arises whether the plaintiff in order to acquire an easement had to show user for a period of sixty years or only for a period of twenty years. The learned Judge of the first appellate Court held that the necessary period was sixty years. He relied upon the decision of the High Court of Madras in Srinivasa Upadya v. Ranganna Batta ('18) 5 A. I. R. 1918 Mad. 120. The learned single Judge of this Court held that the necessary period was twenty years. He was supported by some observations made obiter in Municipal Board, Pilibhit v. Khalil-ur-Rahman : AIR1929All382 , and it has been brought to our notice that these obiter dicta have been approved by the Lahore High Court in Saya Ram Das v. Lahore Electric Supply Co., Ltd ('42) 29 A.I.R. 1942 Lah. 124. The learned single Judge has relied principally upon the wording of a paragraph in Section 15, Easements Act, which is as follows:
When the property over which a right is claimed under this section belongs to Government, this section shall be read as if for the words 'twenty years,' the words 'sixty years' were substituted.
7. He considers that if the word 'claim' must refer to a claim made in a suit and consequently that the answer to the question whether the necessary period is twenty years or sixty years depends upon the ownership of the property at the date when the suit is instituted or the defence is raised. This is a possible meaning to assign to the section, but in my judgment it is not the only possible meaning. In order to acquire a right of positive easement, a person must do certain physical acts over a requisite period and throughout that period he must be setting up a claim to do those acts as of right upon the property of another. In this view the claim would be a continuous claim throughout the period. As it is at least possible to attach two meanings to the words of the section, it would appear to me justifiable to rely upon first principles in order to discover the intention of the Legislature. One principle is that a transferee acquires all the rights and title of the transferor. If the right of easement had been exercised for less than sixty years at the date of a transfer by the Government no right would have been perfected and the Government would have had an unrestricted title to the property. That title should ordinarily pass to the transferee and it is against principle that the transferee should find that his title was restricted immediately by another's right of easement when the transferor's right was not so restricted. The basis of a right of easement by prescription is that it has originated in a lost grant. It seems illogical that it should not be possible to assume a lost grant against the Government at the date of transfer and that it should be possible at the same time to presume such a grant made by the Government against the Government's transferee the moment the transfer had been effected. It has been suggested that we should apply the analogy of immovable property. Learned Counsel for the respondent has pointed out that the Government is entitled to institute a suit for possession of property against a trespasser within a period of 60 years but that a private person cannot institute such a suit after the expiry of a period of 12 years. The result would be that the Government might be entitled to institute a suit for the possession of property on the date when it transferred such property to a private person but that the private person might well be barred by the rule of limitation.
8. Under the provisions of the Transfer of Property Act, the Government's title would not have disappeared, but the title of the private person would have disappeared. It seems to me that we ought not to apply this analogy unless it is perfect and I do not think it is perfect. There is a distinction between rules of positive prescription and rules of negative prescription or limitation. By the former a person definitely acquires certain rights. By the latter no person directly acquired any right; it is only the rights of some other person which are barred and cannot be enforced in a Court of law. Section 28, Limitation Act, does not purport to confer by itself any rights on any person. It purports merely to extinguish the rights of any person who may claim possession over property under a legal title. It is true that the practical effect of the section is to establish the right of a person in possession because there is a presumption in his favour and that presumption cannot be rebutted when the title of the real owner has been extinguished, but that is not the form in which the rule is expressed. On the other hand, rules for the acquirement of rights of an easement are rules of positive prescription. When a person has exercised a right of easement for a certain time he becomes entitled to it. We are compelled to enforce the pro-visions of the Limitation Act according to their plain meaning, and we cannot therefore assign to any private person an extended period of limitation which is given only to the Government.
9. There is no mention in Article 149 of the schedule to the Limitation Act of any person who is claiming any relief as a successor-in-interest to the Government to whom the relief might have been available at the time when the cause of action arose. It necessarily follows that a private transferee from the Government might be barred from enforcing a claim which the Government could have enforced at the time of transfer and consequently that the private transferee's right to possession might be extinguished under Section 28, although the right of the Government at the date of the transfer had not been extinguished. We are thus compelled to accept in that matter any anomalies which may exist. It does not follow that we are forced to presume that the Legislature intended to extend those anomalies to the question of easements which are in a different category. I am inclined, therefore, to agree with the decision of the learned Judges of the Madras High Court in Srinivasa Upadya v. Ranganna Batta ('18) 5 A. I. R. 1918 Mad. 120. The learned Judges of the Lahore High Court in Saya Ram Das v. Lahore Electric Supply Co., Ltd. ('42) 29 A.I.R. 1942 Lah. 124 expressed the opinion that the Madras decision is inconsistent because the learned Judges of the Madras High Court after saying that a person claiming an easement must prove user over a period of full 60 years against the Government or a period of full 20 years against the Government's transferee held that he might be entitled to succeed if the period of prescription against the Government had almost expired at the date of the transfer. In my judgment there is no real inconsistency. The question did not positively arise before the learned Judges of the Madras High Court and consequently they did not discuss the question in detail but I have no doubt that they were of opinion that a person who had begun a period of prescription against the Government might continue the period as against the Government's transferee as such. In my opinion a person claiming an easement against a transferee from the Government would have an option. He could either base his claim upon user for a period of 60 years against the Government and the transferee, as such, of the Government or, if he so preferred, he could ignore the period of prescription against the Government and base his claim entirely upon user for a period of 20 years while the property was in the possession of the transferee. However this may be, I think that the decision in the case before us should be based upon the fact that the plaintiff has not established that he used the plot of land in suit with the requisite animus of a person exercising a right over the property of another. As I have already said I consider that the judgment of the learned single Judge of this Court should be set aside and that the judgment and decree of the learned Judge of the first appellate Court should be restored, or, in other words, the suit should be dismissed with costs throughout.
10. I agree with my learned brother that upon the lower appellate Court's finding of fact, which is in effect that the plaintiff respondent had not the animus of a person exercising a right of easement over the land of another, this appeal should be allowed. I express no opinion as regards the other points which were argued before us.