R.C. Patnaik, J.
1. In this revision, the plaintiff impugns the order of the trial Court rejecting his application for amendment of the plaint.
2. The plaintiff has sought a decree for permanent injunction restraining the defendants from interfering with his possession and alternatively, if it is found that he has no title, for a decree of permanent injunction restraining the defendants from interfering with his possession without recourse to the procedure established by law.
3. The suit was instituted for certain action taken by the authorities during the middle of 1975. The plaintiff has alleged that a part of his building abutting on municipal road was pulled down arbitrarily and without sanction of law; assuming that the land belonged to the Jagannath Road Fund, by his open and hostile user for more than the statutory period, hehad acquired title and was not liable to be dispossessed The suit for permanent injunction has been founded on these allegations.
4. Defendants 1 and 2 in their written statement have controverted the allegations that the demolition was conducted by them. The Collector-Defendant No. 3 has alleged that the land belonged to the Government. The structure was removed in course of an encroachment proceeding. Encroachment was unauthorised and had to be vacated. It has further been alleged that as possession had already been taken, there was no question of any threat to dispossess. Defendant No. 3 has challenged the title of the plaintiff.
5. The suit went sluggishly on from 1977 to !982 when on 15-2-1982 the plaintiff filed an application for amendment of the plaint. He wanted incorporation of a paragraph to the effect that the disputed land being the frontage of his residential-cum-business holding, its user being he since 1957 was by way of necessity and having regard to the balance of convenience, permanent injunction should be granted.
6. The trial Judge rejected the prayer on the ground that the plea of easement of necessity sought to be introduced by amendment was not in consonance with the plea of ownership of which the suit was founded.
7. The learned counsel for the petitioner has strenuously contended that the learned trial Judge has acted with material irregularity in exercise of jurisdiction by his rejection of the amendment. The nature of the suit was not changed which continued to be a suit for permanent injunction, the basic facts remain intact. If the plaintiff erroneously thought on the set of facts that he had acquired ownership, that very set of facts would not disentitle him to a different lesser relief. The counsel for the opposite parties, however, submitted that when the plaintiff based his claim on the basis of ownership, founding the claim on the basis of easement was impermissible as the plea was inconsistent with and destructive of his claim of ownership.
8. No doubt, as a general rule, the Court will not in exercise of jurisdiction allow the amendment converting a suit of one character into a suit of another character, but special circumstances may justify departure. It issettled law that the Court cannot by way of amendment substitute one distinct cause of action for another or change the subject-matter of the suit.
It has also been held in some cases that an amendment may be allowed even if it introduces new grounds of claim or allegations inconsistent with original pleadings where the Court thinks it just and necessary.
9. The objection of the Opposite Parties has been that the plaintiff has based his suit for permanent injunction on the basis of prescriptive title, whereas by the amendment he sought to alter the basis to one of easement of necessity. By claiming an easement of necessity, the plaintiff admitted ownership of his opponent. Hence, the plea was inconsistent.
10. In Venkataratna v. Subbaroya: (1911) 1 Mad WN 95, it was held that a false belief of ownership does not necessarily preclude the acquisition of a right of easement. In Konda v. Ramasami: (1915) ILR38 Mad 1: (AIR 1916 Mad 718), Sundara Ayyar and Sadasiva Ayyar, JJ. held :
'There is no reason why a person who walks along a certain land without the permission of the true owner and in the assertion of a right to walk should not create in favour of the enjoyer a prescriptive right of easement simply because he mistakenly supposes that he is the owner of the land or asserts that his act of enjoyment is sufficient to give him the ownership by prescription.'
In (1907) ILR 34 Cal 51, a Full Bench held that a suit was not liable to be dismissed in limine because it contained alternative claim of ownership and easement. Though some observations of the learned Judges in Konda v. Ramasami (AIR 1916 Mad 718) were not approved by the Full Bench of the Madras High Court in Subba Rao v. Lakshmana Rao AIR 1926 Mad 728, the Full Bench held :
'.....the mere putting forward of a claimof ownership in legal proceedings is not conclusive against a right of easement, but if the acts done by the person claiming easement in respect of the property during the statutory period are only referable to a purported character of owner they cannot validate a subsequent claim to an easement in respect of the property. The question of animus is one of fact. It is clear that a man is not finallyprecluded from claiming the benefit of an easement merely because in the courts of legal proceedings he made an unfounded claim to be owner however strong evidence such a claim might be against him.'
11. It is essential for the creation of an easement that there should be two distinct heritages, that the two heritages must not belong to the same individual and that there must be some advantage derived by one tenement from or upon a neighbouring tenement greater than what would naturally and ordinarily belong to the former. No plaintiff would be allowed to take the impossible position of being the owner of and of having the simultaneous right of easement over the same land.
You cannot have the land itself and also an easement over it per Lord Hatherley in Ladyman v. Grave : (1871) 6 Ch. 763.
12. Where the averments in the pleadings and the reliefs claimed are of conflicting character, the Court must insist upon an election on the part of the plaintiff to choose one or other of the reliefs and upon an amendment of his plaint accordingly. In AIR 1924 All 97, it was held that a suit was not liable to dismissal because the plaintiff claimed in the alternative over the same plot of land both rights of ownership and of easement. It was observed in Narendra v. Abhoy : (1907) ILR 34 Cal 51 (FB):
'The inconsistency of the two allegations may be, and probably would be, a ground for viewing them both with the greatest suspicion, but does not, as a matter of pleading, render the suit not maintainable.'
In this connection, AIR 1930 AIR 877 : Dwaraka v. Ram Jatan may also be seen.
13. The plaintiff has alleged uninterrupted possession since 1957. By misconception about the notion of his rights he claimed ownership that was inferential. Having comprehended his misconception and perceived his unfounded claim, he wanted by way of amendment to plead easement of necessity. As the decisions go to indicate, had he based his suit on the inconsistent pleas, he was not to be non-suited. The court could ask him to elect or alternatively, at the close of the trial, decide which of the reliefs would be granted. The Court could as well view the relief with suspicion, as was held in Narendra's case. 1 am, therefore, of the opinion that when theplaintiff did not want alteration of the material facts fundamentally but sought for the relief of easement of necessity by way of substitution, the amendment should not have been refused. In this case, the defendants have not pleaded prejudice I am, therefore, of the view that the learned trial Judge acted with material irregularity in the exercise of jurisdiction. The order is vacated and the amendment is allowed.
14. In the result, the revision is allowed. The plaintiff shall pay costs in two sets of Rs. 50/- each -- one set to defendants 1 and 2 and the other to defendant No. 3. The trial court shall fix a date for the payment and intimation be sent to the parties. Payment of costs shall be a condition precedent to the further prosecution of the suit.