1. This is an appeal by the plaintiff firm Haji Faizullah Ebadullah and arises out of a suit for demolition of certain constructions put up by the defendants first party, namely Badruzzaman and Muhammad Ayub, on a piece of land in village Kopaganj which the plaintiff described in the plaint as his 'sehan darwaza' (courtyard), and for a perpetual injunction to those defendants restraining them from doing in future any act which may create any difficulty in the use of the courtyard by the plaintiff or which may bring about his dispossession. The allegations in the plaint are that the plaintiff is the owner of a house facing south, that in front of that house there is a chabutra and beyond that chabutra there is open land extending up to the public road, that this open land has been in possession of the plaintiff and its predecessors as the open space in front of their door ('sehan darwaza'), that in that house the business of commission agency and selling grain and sugar, etc. has been carried on for a long time, that the open land in front of the house has been used for the purposes of that business for a long time, and loaded carts bringing merchandise to the plaintiff's shop are unloaded on that land and goods are weighed and stored on it. It was further stated that by reason of that land remaining open, the chabutra and verandah of the plaintiff's house received sufficient light and air, and that the plaintiff's customers stayed on the land and that therefore the land, 'besides its being in use from of old is very necessary for the plaintiff for carrying on the commission agency business'. It was alleged that a day before the plaint was filed, the defendants, Badruzzaman and Muhammad Ayub, had started digging the foundations of a new building, and that this was an interference with the rights of the plaintiff. The defendants in their written statement, besides taking other pleas, also pleaded that the plaintiff had not distinctly shown in the plaint what right it had to the land in question. It was further alleged that the plaintiff's house formerly belonged to Ramsundar and others, Kurmis, that the plaintiff had purchased it in February 1916, and had subsequently built it anew. It was also pleaded that Rani Dhan Dei Kunwar was the zamindar of the entire qasba Kopaganj, that the defendants on payment of nazrana obtained the entire open land together with the trees from her and were putting up the constructions in suit with her permission. Subsequently the plaintiff amended the plaint by impleading Rani Dhan Dei Kunwar as defendant second party and by adding the following passage to para. 4 of its plaint:
The plaintiffs' rights are not such as may be liable to be interfered with by defendant second party or on the ground of her permission, by defendant first party or as may authorize the latter (defendants first party and second parties) to do any such act on the land in dispute as might affect the rights of the plaintiff and his previous use or as might deprive the plaintiff of its possession of any portion of the land in suit.
2. The trial Court framed three issues, the first two being:
1. Whether plaintiff has been in possession of the land in suit as his sehan and did the plaintiff and his predecessor carry on their business on this land? and,
2. Whether the constructions in suit affect the business of the plaintiff in any way?
3. The third was the general issue as to whether the plaintiff was entitled to any relief. It will be noticed that the plaintiff never alleged the acquisition of any easement in his pleadings, nor was the question clearly raised by the issues framed in the case. The learned Munsif took up Issues 1 and 2 together and in the course of his findings on these two issues he speaks of 'dominant heritage' and 'subservient heritage'. He also speaks of 'discontinuous easement'. It appears that in the course of the trial arguments were advanced to the effect that the right claimed by the plaintiff was an easement. The learned Munsif decreed the suit. The defendants, Badruzzaman and Muhammad Ayub, appealed to the lower Appellate Court but their appeal was dismissed. They filed a second appeal in this Court and it came up for hearing before a learned single Judge. The point that was argued before the learned single Judge was that it being admitted by the plaintiff and the witnesses produced on behalf of the plaintiff that there was a cessation of the user of the land between the closing down of the business which the plaintiff's vendors were carrying on and the restarting of a business by the plaintiff after it had purchased the building from Ramsundar Das, etc. the plaintiff had not in law acquired the right of easement claimed. The learned single Judge remitted, the following two issues to the lower Appellate Court for findings:
1. Had the plaintiff's predecessor-in-title (the father of the vendor) acquired a right of easement in respect of the open space in dispute by 20 years' uninterrupted user of the same?
2. Upon the death of the vendor's father was the business and the user of the land in connexion therewith discontinued by the vendor, and if so for how long?
4. The finding of the lower Appellate Court on Issue 1 was that the plaintiff had failed to prove that the father of the vendor had acquired a right of easement in respect of the open space in dispute by 20 years' uninterrupted user, and on Issue 2 it was found that upon the death of the father the vendor ceased to use the land for a period of six years. The finding was in these words:
It follows therefore that on the death of his father, the vendor was not in possession of the land and this was for a period of about six years.
5. On the receipt of these findings, the contention put forward on behalf of the plaintiff before the learned single Judge was that in spite of these findings the plaintiff was entitled to succeed. It was urged that it being admitted that the vendor's father did make use of the land in dispute for a period of 12 to 15 years, and that it being further admitted that under its purchase the plaintiff firm has made similar use of the land for a period of about 12 years, the right of easement claimed must be taken to have been established by 20 years' user. It was contended that the failure of the vendor to continue to use the land in. dispute after the death of his father would not have the effect of terminating the running of the prescriptive period. The argument was based on Expl. 2 of Section 15, Easements Act, and it was argued that no interruption by reason of an obstruction by the act of some person other than the claimant being pleaded, the plaintiff's predecessor-in-title and the plaintiff must be taken to have acquired the right of easement claimed by 20 years' continuous user. The learned single Judge has repelled this contention and has held that the case before him was not one in which any question of 'interruption' arose, but that it was a case in which the plaintiff and its predecessor-in-title had ceased to enjoy the easement for a period of sis years in circumstances which clearly showed that the enjoyment of the easement had been discontinued. The learned single Judge relied on the cases in Janhavi Chowdhurani v. Bindu Bashini Chowdhurani (1899) 26 Cal. 593 and Mewa Sao v. Nasiruddin (1919) 6 A.I.R. Pat. 185. He has also quoted a passage from Halsbury's Laws of England (1910 Edition) Vol. 11, page 272, para. 542:
In cases where enjoyment as of right is neces-sary, a cessation of user which excludes an inference of actual enjoyment as of right for the full statutory period will be fatal at whatsoever portion of the period the cessation occurs.
6. In the result the learned Judge allowed the appeal of the defendants and dismissed the suit of the plaintiff. The learned Counsel for the plaintiff-appellant has advanced before us the same argument which had been advanced before the learned single Judge. It has been contended that there is no question of 'abandonment' in this case because there can be an abandonment only of a right of easement which has been actually acquired by 20 years' uninterrupted user. We consider that this argument really is irrelevant because the learned single Judge has not held that there was an abandonment of a right of easement which had been acquired. What he has held is that the father of the plaintiff's vendors had exercised the right which is put forward for a period of 12 to 15 years only up to the time of his death and that the vendors discontinued that enjoyment in circumstances which clearly showed an intention to cease to enjoy the right. We may say at once that we are in complete agreement with the view taken by the learned single Judge. The case in Sham Churn Auddy v. Tariney Churn Banerjee (1875) 1 Cal. 422 has been cited at the Bar. The terms 'abandonment' and 'discontinuance' have been clearly explained at pp. 429 and 430 of the report by the learned Chief Justice. As is explained there, 'discontinuance' means such a voluntary discontinuance of the user of the easement as prevents the statutory right being acquired. The findings in the case before us establish these facts. The father of the plaintiff's vendors had a business which he was carrying on in a building which he owned. The land in question is situated close to that building and having found it convenient to utilize it for various purposes in connexion with his business he used it for a period of 12 to 15 years. He then died and his sons stopped the business altogether and discontinued the use of the land in question. This state of affairs lasted for a period of six years. The building was then sold to the present plaintiff and after purchasing it the plaintiff started a new business of the same type in that building and began to use the land again for similar purposes. This had gone on a for a period of about 12 years before the suit giving rise to this appeal was instituted. It is clear in our opinion that the cessation or the discontinuance of the user in this case was very different from the mere non-user for a time of an easement, as for instance, where the owner of a house does not use a way to it for a short time because the house is unoccupied during that time, or where a farmer does not exercise a right of pasture because he happens to have no pasturable cattle for a time, or because by reason of drought or some other cause, the herbage is scanty or unwholesome.
7. The learned Counsel for the appellant has cited the case in Ratanlal Bholaram v. Gulam Husen Abdulali (1922) 9 A.I.R. Bom. 3. That was a case in which a building, the owner of which was in the course of acquiring a right of easement by prescription, was burnt down and he began immediately to rebuild it and placed the windows exactly in the same position as before. It was held that if there had been any delay in rebuilding, then it might be evidence of an intention not to resume the user, but that there having been no such delay in that case, the owner of the building could be regarded as enjoying the access and use of light and air continuously and would be entitled to protection after 20 years from the first building. The facts of that case are clearly very different from those of the case before us. There the building, in connexion with which the easement of light and air was being acquired, had been destroyed by fire. It could not therefore be said that the owner of the building had done anything from which an intention to discontinue the enjoyment of the easement which was in the course of acquisition could be inferred.
8. In the case before us the business in connexion with which the right claimed was in the course of acquisition was closed down by the plaintiff's vendors and the land was not used at all for a period of six years.
9. The next case cited by the learned Counsel is the case in Jogesh Chandra Roy v. Sm. Sachhandra : AIR1935Cal282 . That was a case in which a right of way was in question. The findings of the lower Appellate Court were that the plaintiff had acquired the easement of the right of way by more than 20 years' user before 1900, that in 1900 the son of plaintiff 1 died and the plaintiff had since then been living sometimes in her daughter's house and sometimes in her own, that the house of the plaintiff had never been abandoned and that it was not a fact that the plaintiffs ceased to live in their house for six or seven years. On these findings of fact the question which arises before us did not arise in that case and the learned Judge merely explained the law and decided the case on the finding recorded by the lower Appellate Court. That case has no bearing to the facts of the case before us. The learned Counsel has also cited the case in (1842) 3 Q.B. 581 which is also to be found in Carr v. Foster (1942) 3 Q.B. 581. The question that arose in that case really depended on the interpretation of a particular statute. It was held in that case that where a commoner had ceased to use the common during two years of the 30 (the period required for acquiring the right), having no common able cattle at the time, but had used it before and after, a jury were justified in finding a continued enjoyment of the right during 30 years. It was further held that if proof be given of a right enjoyed at the time of action brought, and 30 years before, but disused during any part of the intermediate time, it is always a question for the jury whether, at that time, the right had ceased or was still substantially enjoyed, and that the inference to be drawn from the facts proved on this point was not a 'presumption' within Section 6 of that Statute.
10. As we have explained above, a case where a farmer desists for a time from exercising a right of pasture because he happens to have no pasturable cattle is a very different case from one in which the business in connexion with which the land is alleged to have been used is closed for a period of six years and then the building is sold and the purchaser starts a new business of his own and begins to use the land again. The findings of fact in the case before us are clear and we consider that the learned single Judge was perfectly correct in holding on these findings that the plaintiff's vendors had clearly discontinued the enjoyment of the right which their father had commenced. For the reasons given above, we hold that there is no force in this appeal and we dismiss it with costs.