P.V. Dixit, J.
1. This is an appeal by the defendants from a decision of the Additional District Judge of Ujjain confirming the judgment and decree ot the Civil Judge, Second Class, Ujjain, whereby the defendants have been restrained from interfering and disturbing in any way the plaintiff's right ot way over a piece of land belonging to the appellants.
2. The plaintiff's case as originally laid, was that he and the defendants were owners of adjacent houses; that in between the houses there was a joint piece of land over which he had a right to pass and repass; that the defendants were interfering with his right of using this land; and that, therefore, it should be partitioned and he be put in possession of his share. During the pendency of the suit, theplaint was amended and the plaintiff alleged in the alternative that if the land in question was held to be the exclusive property of the defendants, then he had a right of way over the kind and that, therefore, the defendants should be restrained from interfering with his right of passage over the land. The defendants denied that the land was joint property. They claimed that the land belonged to them only and that the plaintiff had no right of way over the land.
3. At the trial, the plaintiff first led evidence to show that he was using the land as a passage in his own right as a co-owner. Alter amending the plaint, he tendered evidence to show that he was using the land for passing for over twenty years. Both the courts below found this evidence of user as sufficient to prove the right of way claimed by the plaintiff and decreed his claim accordingly. The defendants have now preferred this appeal.
4. Having heard learned counsel for the parties, I have reached the conclusion that this appeal must be accepted. Before a right of way can be acquired as an easement, it is necessary to prove that (i) there has been an actual enjoyment of that right (ii) the enjoyment has been open (iii) it has been peaceable (iv) it has been as of right, (v) it has been as an easement (vi) the easement was enjoyed and without Interruption, and (vii) it has been enjoyed for twenty years. The evidence which the plaintiff produced to support his right of way consists of vague and general statements about his user of the land as passage. That evidence does not at all indicate with any precision the land which the plaintiff was using as a passage, the purpose for which it was being used and whether the user of the land was open, peaceable, uninterrupted and as an easement. In coming to the conclusion that the plaintiff had a right of way, the learned trial judge was influenced mainly by a statement in the evidence of Isaji that adjoining to the plaintiff's house there was once a Chabutara standing on a land admeasuring 5' x 6'; that when this Chabutara was demolished the land was being used by himself and the plaintiff as a passage; that this land was being so used for over fifty years; and that the plaintiff had taken possession of this land.
The learned judge thought that this statement was a clear admission on the part of the defendants that the plaintiff had a right of way. The learned judge overlooked the fact that the land to which Isaji referred in his statement was not the one over which the plaintiff was claiming the easement of the right of way. Neither the trial judge nor the appellate judge gave any consideration to the question whether this user of the land by the plaintiff was as an casement.
5. Even if it is held that the plaintiff has been using the land as a passage for some years, that fact cannot in the instant case lead to the conclusion that the plaintiff's use of the land was in the exercise of his right of easement. It must be remembered that in this case the plaintiff first came forward with the case that the land in question was the joint property of the parties and as a co-owner be had a right to use the land. He then amended the plaint and took the alternative plea of having a right of easement over the land.
A claimant can no doubt claim ownership and easement rights in the alternative, But the important point to be considered in regard to such an alternative plea is the character of the user and the question of qua amino egerit with reference to the user by the plaintiff, that is, if the plaintiff has used the way on assertion of right as owner. Ho cannot put forward such user in support of a rightof easement (see Laxminarayan v. Faijulal, AIR 1933Nag 257).
In T. Rajlu Naidu v. M.E.R. Malak, AIR 1939 Nag 197 also it was held on the authority of Attorney General of Southern Nigeria v. John Holt and Co,, AIR 1915 P.C. 131 that a person who enjoys a right under the belief that he is an owner does not acquire an easement. In Abdul Kayum v. Mojiram, AIR 1927 Nag 334 it was held that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement and if the right that a person is exercising is not with the consciousness that he is restricting another person's right of ownership, he cannot be enjoying a right of easement.
There is nothing in the evidence which the plaintiff led after taxing the alternative plea of easement to show that he used the land as a passage with the consciousness that he had a right of easement over the land. The evidence of user which the plaintiff produced before amendment of the plaint to show that the parties were joint owners of the land cannot be taken into consideration as evidence of his user of the land, with the consciousness of his right of easement. A right of easement is a right in assertion of a hostile claim of certain limited rights over somebody else's property and not one's own. Indeed that evidence altogether detracts from the value of the evidence which the plaintiff produced Subsequently to support his user of the land as as easement.
Very little weight can be attached to the evidence of any witness who first deposed that the plaintiff was using the land as a co-owner and lates on said that he used it in exercise of his right of easement over the land In my opinion, on the evidence on record it cannot be held that the plaintiff at any time used the land as a passage with the consciousness that he had an easement of the right of way over the defendants' land.
6. Mr. Jhavar, learned counsel for the respondent relying on AIR 1939 Nag 197, and Nathuram v. Kalu, AIR 1939 Nag 69 argued that when the plaintiff had established open and notorious user, a presumption would arise that it was as of right and that as the plaintiff was not claiming the user as am owner, it necessarily followed that the user was as an easement; and that it was for the defendants to show that the user was not as of right but otherwise. Both the cases referred to above are distinguishable on facts and cannot be taken as laying down an absolute rule that in every case where an open and notorious user is established it should be presumed without any reference to the facts and circumstances of the case that the user was 'as of right'. Under Section 15 of the Easements Act the person claiming a right of way has not only to establish that he enjoyed the right for twenty years peaceably and openly but also that the right was enjoyed 'as of right'.
The question whether the right of way wasenjoyed 'as of right' is a question of fact. That being so, the applicability of the rule of English law that the presumption from long user would be of a right being enjoyed 'as of right' would depend on the facts and circumstances under which the user takes place, or the relationship or friendship between the parties and the character of the dominant and servient tenements. It was pointed out by Banerjee J. in Shaikh Khoda Buksh v. Shaikh Tajuddin, 8 Cai WN 359 that the question of user being as of right is a question of fact and the propriety of the rule that the presumption from user should be that it is as of right, must depend upon the circumstances not only of each particular case but also of each particular country regard being had to the habits of the people of that country.
In England, the presumption of long user being 'as of right' is readily drawn because the social conditions and the nature of the landed property there . are such that landowners are particularly jealous of their exclusive right over the land. In India, such rigid and jealous view of the exclusiveness of the landed property do not prevail and very often an owner of a piece of waste land never raises any objection to the passage of the strangers Over such land. It must be noted that in AIR 1930 Nag 197 Myogi J., relied on the presumption that the user of the way by the claimant was as of right because of the existence of certain circumstances in that case which justified the presumption.
In that case, the land on which the defendant was exercising his right of way had been admittedly set apart as a passage, and the relations between the parties were not such as to indicate that the defendant's user was attributable to leave or license. The observations which the learned Judge made after referring to the rule laid down by the Privy Council in AIR 1915 PC 131 that a person who enjoys a right under the belief that he is an owner does not acquire an easement, show that the learned judge would not have relied on the presumption if in the case before him the claimant had asserted the right of way first as an owner and in the alternative as an easement. In Nathuram's case, AIR 1939 Nag 69 also the claimant did not claim the right of way as an owner and in the alternative as an easement. In my judgment, in a case where the claimant first asserts a right of way as an owner and in the alternative claims it as an easement, it would not be right to say that long user must be as of right as an easement inasmuch as the plaintiff had not succeeded in establishing that the user was as an owner.
7. In my judgment, on the evidence on record,the plaintiff has utterly failed to establish the rightof way claimed by him by prescription and his suitmust be dismissed. The result is that the appeal isallowed, the decisions of the courts below are setaside and the plaintiff's suit is dismissed with coststhroughout.