1. The suit in this case was to establish the plaintiff's right to an easement of way over certain land belonging to the defendants, to remove the wall constructed by the defendants which the plaintiff alleged obstructed his right of way and to restrain the defendants from interfering with his right of way. The defendants denied the right alleged by the plaintiff. The District Munsif found it established by the evidence adduced in the case. The plaintiff, had instituted a previous suit, Original Suit No. 651 of 1899, in which he claimed the site along which he now asserted a right of way, as belonging to him in proprietary right. That suit failed. The Court that tried that suit expressed an opinion in its judgment that the evidence showed that the plaintiff was entitled not to the ownership of the land but to an easement of right of way. As the plaintiff did not claim any relief with respect to an easement, that suit was dismissed. The District Judge has reversed the District Munsif's judgment. He says: 'The evidence of plaintiff in the present case shows that he has not been enjoying the right of way as an easement;' and he refers to the deposition of the plaintiff in which he said that he still asserted that he had been long walking along the way in the assertion of a right of ownership. Then the District Judge says: 'A man cannot acquire a right of way over his own land as an easement. Evidence of immemorial user adduced in support of a right founded on ownership does not, when the right is negatived, tend to establish an easement.' The plaintiff who has preferred the Second Appeal contends that this proposition of law is wrong.
2. We took time to consider our judgment and we have arrived at the conclusion that the appellant's contention must be upheld. By adverse enjoyment, i.e., by enjoyment without a lawful right, a person may acquire either an estate in property belonging to another or an incorporeal right of certain kinds. In the former case it may be either an absolute estate or a limited estate. If the adverse enjoyment amounts to exclusive possession of the land of the true owner, then in the absence of evidence to the contrary the trespasser would acquire the absolute ownership of the property. It would be open to the real owner to show that be did not while in adverse enjoyment assert the right to hold the lands as absolute owner but asserted only a lesser right such as that of a lessee or a mortgagee or a life-tenant. In that case the animus possidendi of the adverse enjoyer would determine the title which he would acquire by prescription. It might also be open to the real owner to say that only an easement right was asserted by the person in adverse enjoyment, and in that case the right acquired would be only an easement. It is the adverse enjoyment or enjoyment without a lawful right that gives right to a title by prescription. No doubt if the enjoyment was not adverse but by license of the real owner, then no right would be acquired. Now if a person walks along the land of another for the beneficial enjoyment of another land and if the enjoyment of the other's land does not amount to exclusive possession, there seems to be no reason why his walking along the 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. Reliance is placed for the respondent on the language of Section 15 of the Easements Act. It lays down that for acquiring a right of easement the right of way must be enjoyed by a person claiming title thereto, as an easement, and as of right and without interruption for the statutory period. Now the punctuation shows that title need not be claimed as an easement. The enjoyment is required to possess two properties, viz., that it must be as of right without interruption and it must be as an easement. The first quality is intended to show that enjoyment by license or under a contract which would not amount to a grant of an easement, would be ineffectual to create a right by prescription. Then the other quality is that the enjoyment should be as an easement. The section does not say that the enjoyment should be in the assertion of a claim of an, easement. Illustration (b) to the section explains what is meant by 'as an easement.' It is as follows:. the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant, proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed 'as an easement' for twenty years. The illustration shows that the 'expression as an easement' is put in to show that unity of title or possession during the period of the twenty years or a portion thereof, makes the possession useless to create a right of easement. The appellant has referred us to Narendra Nath Barari v. Abhoy Charan Chattopadhya (1907) 34 Calc. 51. There the plaintiff claimed a right of ownership of a certain land and if the facts he would prove would not amount to that, he claimed to be entitled to a right of a easement.
3. Geidt, J. observes, 'In a case like the present a plaintiff may very well allege bond fide 'I believe the land to be mine but I may be unable to prove it; if I should fail to prove it I can at any rate prove that I have been using the right of way as an easement uninterruptedly and as of right for over twenty years.' There appears to me no reason in principle why a claim like this, in the alternative should not be tried, or why the plaintiff should be forced first to bring a suit to establish his right of ownership, and if that fails, then to bring a suit to establish the right of easement.' It is of course impossible to prove an animus to hold the land as owner and at the same time in virtue of a right of easement. The judgment of the Calcutta High Court is inconsistent with the view that the claimant of a right of easement should prove that he asserted during his easement a limited right of easement as opposed to ownership. The Court held in that case that the claim in the alternative was sustainable.
4. The District Judge refers in his judgment to the decision of the Bombay High Court in Chunilal Fulchand v. Mangaldas Goverdhandas I.L.R. (1892) 16 Bom. 592, where the observation is to be found that 'evidence of immemorial user adduced in support of a right founded on ownership, does not, when that right is negatived, tend to establish an easement,' It is not quite easy to understand what exactly the learned Judges who were parties to that judgment meant. It is of course true that evidence of immemorial user in support of a right founded on ownership will not by itself tend to establish an easement. In order that an easement may be acquired it must be shown that the user was for the beneficial enjoyment of another land. If the learned Judges meant to say that the assertion of ownership during the period of user would make the acquisition of an easement right impossible, then with all deference to them we are unable to agree with that view. The mere claim of the higher right of ownership would not prevent a person from acquiring the lesser right of easement provided he could show that he asserted certain rights of enjoyment over the land in question for the benefit of another land belonging to him. We do not think the District Judge has really decided the question whether the plaintiff exercised the right to pass over the defendant's land as of right and without interruption for twenty years for the beneficial enjoyment of other land belonging to him as required by Section 15 of the Basements Act: We shall therefore reverse the decree and remand the appeal for fresh disposal according to law. The cost of this Second Appeal will abide the result.