1. The appellant before us is defendant 1 in the suit which was for the removal of certain pillars and wire fencing and for other reliefs on the allegation that the plaintiff had acquired by prescription a right of way over the land belonging to defendant 1 round which this fence had been put up by defendant 1. The Court of first instance dismissed the suit on a preliminary point, and the lower Appellate Court having disagreed with the first Court on that point, has remanded the case for the trial and decision of the other issues involved in it. The appeal before us is directed against the order of remand. The plaintiff and defendant 1 both own shops in a block of buildings, the plaintiff's shop lying to the extreme south and that of defendant 1 being on the extreme north, with the shop of a third person intervening between the two. The land which was enclosed by defendant 1 is situated immediately to the west of his shop and belongs to him.
2. The case of the plaintiff is that he has got a right of way as an easement for the benefit of his shop over this land belonging to defendant 1 and that the defendant was not entitled to obstruct the enjoyment of his right by putting up the fencing. Various pleas were raised in defence and several issues were framed, but the trial Court dismissed the suit on the sole ground that for a certain number of years a man called Mul Chand was a tenant of the plaintiff's shop as well as of the defendant's shop and that this period must be excluded from the period of 20 years during which the plaintiff claimed to have enjoyed the right of way and acquired it as an easement by prescription. If that period during which Mul Chand was a tenant occupying both the plaintiff's and the defendant's buildings is excluded, the period during which the plaintiff has enjoyed the right of way falls short of 20 years. Being of that opinion, that Court did not consider it necessary to try the remaining issues. The lower Appellate Court has differed from the trial Court on this point and reversing the decree, has remanded the case for the trial of the other issues.
3. Having heard learned Counsel for the defendant-appellant, we have come to the conclusion that the decision of the lower Appellate Court is correct. That Mul Chand was entitled, during the time that he was in possession of the plaintiff's shop as his tenant, to continue the enjoyment of the right of way over the defendant's land on behalf of the plaintiff is not denied. Para. 1 of Section 12, Basements Act (5 of 1882) lays down that rule. The learned Counsel for the defendant-appellant refers however to para. 3 of that Section which runs as follows:
No lessee of immovable property can acquire, or the beneficial enjoyment of other immovable property of his own an easement in or over the property comprised in his lease.
4. The argument of the learned Counsel is that during the time that Mul Chand was in occupation of the building belonging to defendant 1 as a tenant he could not acquire an easement over the adjoining land belonging to his landlord for the beneficial enjoyment of other immovable property, not his own, but belonging to some one else whose building also he happened to occupy for the time being as a tenant. But this is not what the Section lays down. The very first objection to the argument of the learned Counsel, is, that it has neither been alleged, nor proved or found, that the land E F G H in question was comprised in the lease of the shop of defendant 1 to Mul Chand. The second objection to the argument is that Mul Chand's enjoyment of the right of way over this land of defendant 1 during that period was not for the beneficial enjoyment of immovable property belonging to himself but was for the beneficial enjoyment of immovable property belonging to another, namely the plaintiff. The learned Counsel has referred to Section 15 of the Act, and has relied on III. (b) to the Section. But there is nothing in the Section or in the illustration which supports him on the point that he raises before us. The learned Counsel is unable to point to any Section of the Act which affords him any assistance whatsoever. He has referred to the cases in Udit Singh v. Kashi Ram (1892) 14 All. 185, Mani Chander Chuckerbutty v. Baikanta Nath Biswas (1902) 29 Cal. 363 and Abdul Rashid v. Braham Saran : AIR1938All293 , but none of these cases is applicable to the case before us and has no bearing on the point raised. In our opinion the appeal has no force and we dismiss it with costs.