1. This second appeal has been referred to us at the instance of a learned Single Judge, who felt that an authoritative decision was called for as to the combined effect of Sections 15, 45 and 51 of the Easements Act
2. The suit out of which this appeal arises is for a perpetual injunction to restrain the defendants from interfering with the discharge of rain-water through certain spouts (parnalas) that open from the plaintiff's roof on to their land. From the findings of fact given by the Courts below it appears that when the plaintiff purchased the house in 1965, it was a mere ruin, having collapsed 5 or 6 years before; but previously, when the house was standing, the plaintiffs predecessors had been discharging rain-water on to the defendants' land from the roof of the house through parnalas for more than 20 years. The learned Munsif of Muzaffarnagar held that they had thus acauired a prescriptive easementary right and on this finding decreed the suit. But in appeal the learned Second Additional Civil Judge of Muzaffarnagar found that though a prescriptive easementary right had been earlier acquired, it had not been exercised for the five or six years immediately preceding the suit, as during that time the house was a roofless ruin and no water could be discharged on to the defendants' land. He acordingly heldthat the suit could not succeed, because the easement claimed by the plaintiff had not been enjoyed within the two years next before the institution of the suit, as required by the fifth paragraph of Section 15 of the Easements Act. The appeal was therefore, allowed and the suit dismissed.
3. Mr. Ojha, who appears for the plaintiff-appellant, has first of all attempted to argue that since, according to the findings of the Courts below, the easementary right had already been acquired earlier, the case is covered by Sections 45 and 51 of the Easements Act. The collapse of the house resulted in extinction of the easement within the meaning of Section 45 of the Act (which says that 'an easement is extinguished when either the dominant or the servient heritage is completely destroyed'); but, he contends, the easement was subsequently restored under Clause (c) of Section 51, which lays down:
'An easement extinguished under Section 45 revives .....(c) when thedestroyed heritage is a dominant building and before 20 years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage.'
In the present case the finding is that the house constituting the dominant heritage remained in a collapsed and roofless stage for only 5 or 6 years and then the plaintiff purchased the property and rebuilt the house, long before the period of 20 years mentioned in Section 51 had elapsed.
4. The fallacy In this line of argument, however, is that it assumes that an absolute right of easement was in existence at the time when the house collapsed. If there was no such absolute right in existence, there could be no question of its extinction and the provisions of Sections 45 and 51 would not be attracted; and it appears to us that the finding recorded by the Courts below that the plaintiff's predecessors had acquired an absolute easementary right by prescription was wrong. Such a right can only be acquired under the provisions of Section 15 of the Act, the relevant portions of which run as follows:--
'.....When a right of way or anyother 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 ..... othereasement 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.'
In view of the wording of this section, it cannot be said that enjoyment of an easement for any period of 20 consecutive years will create an absolute right-- the only period of 20 years' enjoyment that will do so is a period ending within two years next before the institution of a suit in which the claim to the easement is contested. As pointed out in Siti Kanta Pal v. Radha Gobinda Sen : AIR1929Cal542 :--
'It has been authoritatively held that a title to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz. 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years upto within 2 years of the institution of the suit.'
A similar view has been expressed by a learned Single Judge of this Court in Sughar Singh v. Putta Singh, 1957 All WR (HC) 186. In the present instance there is no suggestion that there was ever any earlier suit about the easementary right that was enjoyed by the plaintiff's predecessors; and in the circumstances it cannot be said that those persons had acquired an absolute and Indefeasible right under Section 15. It follows from this, as already pointed out, that when the house collapsed there was no absolute easementary right in existence which could be subject to extinction; and thus the provisions of Sections 45 and 51 are not at all applicable to. the facts of this case.
5. Having failed on this score, Mr. Ojha has advanced an alternative argument viz. that the plaintiff acquired an absolute right of easement under Section 15 of the Act when he rebuilt the house and started discharging rain-water on to the defendants' land shortly before the present suit was instituted. He contends that the plaintiff and his predecessors must be deemed to have continuously enjoyed the easementary right for a period of 20 years which ended just, before the institution of this suit; and he maintains that the 5 or 6 years during which the house remained in a ruined and roofless condition would not count as an interruption of that enjoyment, in view of the definition of 'interruption' given in Explanation II to Section 15, which says that 'nothing is an interruption within the meaning of this section unless there is an actual cessation of enjoyment by reason of an obstruction by the act of some person other than the claimant .....' It is clear, however,that the basic requirement of Section 15is that the claimant must enjoy the easementary right for full twenty years, before he can acquire an absolute easement; and that period of twenty years can be broken not only by an interruption as defined in Explanation II (i.e. an obstruction of his enjoyment by the act of some other person) but also by discontinuance of enjoyment at his own instance. It is true that mere failure to exercise the right for a limited period will not necessarily amount to discontinuance of enjoyment. As has been pointed out in Faizullah Ebadullah v. Badrux Zaman. : AIR1938All587 , if the owner of a house does not use a way to it for a short time because the house remains unoccupied during that time or if a farmer does not exercise a right of pasture because he happens to have no pasturable cattle for a time or because the herbage is scanty due to drought, such non-user will not constitute discontinuance But where the circumstances of the case show a clear intention to cease to enjoy the easementary right, dis-continuance of enjoyment may be inferred.
6. In the present case the house which was the dominant heritage fell down and no attempt was made to repair or rebuild it for 5 or 6 years; and it seems to us reasonable to infer that such conduct on the part of the plaintiff's predecessors indicated an intention on their part to cease to enjoy the easementary right of discharging water on to the defendants' land and they must be deemed to have discontinued enjoyment of the easement for that period. The converse of this case is to be seen in Ratan Lal Bhola Ram v. Gulam Husen Abdul Ali. AIR 1922 Bom 3, where it was found that the plaintiff's house had burnt down but he had rebuilt it without delay, with windows in the same place as before, and it was held that there had been no discontinuance of enjoyment of the easement of light and air. The learned Judges dealt with the question in the following terms:--
'Mere non-user will not, in every case, prevent acquisition of an easement: but to have that effect, it must be coupled with some act indicative of an intention to abandon the claim, or it must be of such long continuance, and so constant, as to indicate an intention not to resume the user.
It seems to me, therefore, that the question must depend very much on the facts of each case, and that if the owner of a building who, in the course of acquiring a right of easement by prescription, is so unfortunate as to have his house burnt down, begins immediately to rebuild his house and places the widows exactly in the same position as the old ones, it may be said that he has been enjoying the access and use of light and air continuously, and he will be entitled to protection after twenty years from the first building. If, however, there is any delay in re-building, then that might be evidence of an intention not to resume the user.'
7. In the present case there was considerable delay in rebuilding the house after it collapsed, indicating an intention on the part of the plaintiff's predecessors not to resume user of the easementary right to discharge water on to the defendants' land. We are satisfied in the circumstances that the plaintiff has failed to show that a period of 20 years continuous enjoyment of the easement lasted up to within two years of the institution of his suit
8. The result is that we see no force In either of the arguments put forward by Mr. Ojha for the plaintiff-appellant. This second appeal accordingly fails and is dismissed with costs.