1. The plots about which there is a dispute in the second appeal are ABCD and EFGD. The Judge finds that ABCD must be decreed to be common to the plaintiffs and the defendants. We cannot accept this view. The plaintiffs claimed the plot as their own. The defendants, in paragraph 3 of the original written statement and in paragraphs 5 and 6 of the second written statement, merely claimed an easement of way over it. We must, therefore, overrule the Judge's finding as to common ownership. As regards the easement set up it is not clear to what place this right of way was attached. The Judge will take a statement from the defendants on this point and try the question raised under the fifth issue. As regards the plot EFGD, the Judge has found it to be the property of the plaintiffs and declared an easement of way over it in the defendant's favour. This conclusion he has based on the Munsif's finding of user under a license. This view is not legally sound. The Judge must find under the fifth issue whether the defendants have any easement of way, by user as of right, over EFGD. A statement must also be taken from the defendants as regards the property to which the right of way over EFGD is attached. The finding on the fifth issue, which we understand, relates to both plots ABCD and EFGD will be returned on the evidence on record within one month after the re-opening of the District Court. Seven days will be allowed for filing objections.
2. In compliance with the order contained in the above judgment, the District Judge submitted the following.
3. I am called on for a finding in respect of both the disputed sites EFGD and ABOD in the fifth issue, which is, whether the defendants have a right of way across the gateway and over the vacant site behind it as pleaded in their written statements. The defendants have now made their case clear by putting in an additional written statement as required by the High Court claiming a right of way over the above two plots as attached to their house and land on the south and west.
4. The District Munsif found that the defendants had been using the portions by permission in consideration of the plaintiffs using the lane and gutter in the defendant's moie(sic) The lane is the ADUV in the Commissioner plan and it apparently contains a drain (sic) a privy which are marked as XY and (sic) in the plan printed at page 5. The District Munsif has not explicitly distinguished between a permissive user and a contract but he remarks that the defendants have not shown by evidence any acquisition by adverse user in their favour.
5. There is ample oral evidence and even admission of user of these two plots by defendants and their predecessors in title and it seems to have continued about three generations seeing that the petition was in 1856 and before that the whole estate was in the hands of a single undivided family. First plaintiff stated as his second witness,--The front gate for the house has no other gateway for it. The defendants have been going to their house through my gateway. There is a lane and gutter in defendant's portion and I and other plaintiffs were using them. So we had allowed defendants to use the gateway which stood in our portion. We were using defendant's portion and vice versa.' Plaintiff's fourth witness also deposed,--'I know the houses of both parties. They have a common gateway. The plaintiffs live in the northern moiety. The water falling in plaintiff's house was passing through the gutter in defendant's portion. The lane in defendant's portion was used by plaintiffs as latrine. Both were using the vacant sites in common.' The first defendant deposed and the Commissioner reported that the same gateway was used by both the parties to go to their respective portions. Third defendant stated that the gateway had been common to both houses for over three generations, that the vacant sites had been lying like that also for a long time, and that the water falling in plaintiffs' portion flows through defendant's portico as also through Pichukuttiah Pillai's house. First plaintiff when examined as defence first witness stated,--'The building standing on the said house sites have been in existence even from before the date of the partition-deed. Neither of the two parties constructed newly. I know only the fact that in return for the defendants' using the entrance which is in my portion the plaintiffs have been using the lane which is in defendants' portion. I do not know that there was an arrangement to that effect.'
6. (sic) this savours of tacit acquiescence on (sic) plaintiffs in the enjoyment by the (sic) of a right of way which they have been using as an easement of necessity for having access to their share of the house. There is no evidence that they have been taking permission of the plaintiffs from time to time when they used this way. If there was a contract plaintiffs must prove what its terms were and what the consideration for it was. Explanation I to Section 15 of the Indian Easements Act shows the distinction to be made between easements and agreements. Plaintiffs have not made it clear that this right of way has not been granted as an easement or that it has been granted for a limited period or is to terminate conditionally on a certain event happening. The enjoyment has been open, peaceable and as of right,' i.e., with the intention of acquiring a right of easement. The last phrase is defined in Mathuradoss Nandavalab v. Bai Amthi 27 B. 524 as open manifest and free from admission of a right in the owner of the servient tenement to obstruct the enjoyment. It has been permissive only in the sense that it, has been peaceable and uninterrupted which are also requirements of the section. The plaintiffs have been similarly enjoying a right to pass drainage water over a portion of defendant's property and because the defendants are alleged to have interfered with their enjoyment of that easement they have chosen to retaliate by bringing this suit with the idea of terminating defendants' right instead of suing to establish their own right over QRST. If they succeed they will have a great hold over defendants by blocking them from the front entrance of their house. The two rights are alleged to be interdependent but there is nothing in writing to support' the existence of such a mutual agreement. Plaintiffs who set up an agreement must prove its terms distinctly. I find the first issue in defendants' favour. Plaintiffs are entitled to possession of the plots ABCD and EFGD, not to an exclusive possession but one saddled with a right of way over them for defendants to enter and leave their share of the buildings standing on the suit sites MNOP and KLPQ. In this view the suit will have to be dismissed. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court, the Court deliver(sic) the following.
7. We accept the (sic) of the District Judge as regards the (sic) way claimed by the defendants. In (sic) cation of the decrees of the Courts below, we direct that the plaintiffs be put in possession of the plots ABCD and EFGD as per plan attached to the Munsif's decree, subject to the defendants' right of way as now found by the District Judge. Each party will bear his own costs throughout.