Abdur Rahman, J.
1. The other claims made in the suit, out of which this appeal arises, having been decided Against the plaintiff, the only point to decide now is whether the plaintiff has Succeeded in establishing her right of easement on' the western space lying to the north of the defendant's house and abutting on the Union lane near the line marked AG in the plan Ex K-l. 'The plaintiff V suit was totally dismissed by the District Munsif of Palni but an appeal to the Subordinate Judge of Dihdigul was partially allowed and the plaintiff was found to have established her right of way in regard to the plot indicated above. The defendant appeals and contends that the decision of the learned Subordinate Judge decreeing the plaintiff's right of easement to the disputed plot is incorrect. The question to decide is whether it is so.
2. It is undoubtedly true that the plaintiff came to Court with two inconsistent allegations claiming both ownership and, in the alternative, easement in regard to the same plots. That they were inconsistent yet capable of being put forward, may be, in view of the decision of the Full Bench of this Court in Subba Rao v. Lakshmana Rao I.L.R.(1925) Mad. 820 taken as no longer open, to question. The Code of Civil Procedure permits inconsistent pleas to be raised after all. It has been equally settled that if a person begins, to assert that he is the owner of a plot over which his right of easement has not matured, he may not succeed in establishing-ownership but would, nonetheless, lose, on account of his claim, the right of easement for which he was prescribing. And this, because he could not hold the property both adversely as a complete owner and as the holder of a dominant tenement where he claims only certain limited rights by way of an easement and recognises the proprietary rights of the servient owner in the tenement. In delivering the judgment of the Court, Sir Murray Courts Trotter, C.J., observed as follows:
The learned Judges in Kondla Reddi v. Ramasami Reddi I.L.R.(1912) Mad. 1 seem to imply that the assertion of ownership during the period of user is not fatal to the success of a claim to an easement. To this proposition we cannot assent. Our opinion is that while the mere putting forward of a wider claim in legal proceedings is not conclusive against a right of easement, yet the question quo animo egerit, to what purported character are the acts of user to be ascribed is one which the Court must answer
They followed the decision in Lyell v. Hoth field (1914) 3 K.B. 911 which laid down that,
acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to aft easement.
Nothing was said by the learned Chief -Justice in the above mentioned case that might lead to the conclusion that an assertion of ownership, after the period of user has matured into an easement, would be fatal to the right already acquired.
3. Learned Counsel for the appellant contends that the claim as to ownership of the plot in dispute was not only made by the plaintiff for the first time in her plaint presented in March, 1936 but that she had been doing so since June, 1935 and this would be sufficient to extinguish her claim in regard to easement. The lower appellate Court finds as a fact that the plaintiff had been exercising her right of way oh the plot in dispute for about 24 years before the letters and petitions containing the plaintiff's assertion of ownership were written and made. This is a finding of fact which the lower Court was entitled to arrive at and must be accepted by me in second appeal. Whether the claim made in 1935 can be destructive of the easement, if one had been already acquired by the plaintiff as the lower, appellate Court finds it to have been done, is the next question which deserves consideration.
4. When a person claims a right in a property by way of an easement, he is claiming a much lesser right than ownership. If the right of easement is acquired, the dominant owner becomes entitled to certain rights only and the remaining rights still continue to vest in the servient owner. What prevents the dominant owner from acquiring the rest of the rights by adverse possession for instance, I am unable to follow. Nor can I see why should his attempt to claim the rest of the rights nec vi, nee claim, nee precario (which may also involve the assertion that he is holding them in his own right) necessarily lead one to conclude that the rights previously acquired have, by his subsequent conduct in attempting to acquire more, come to an end; Whatever was already acquired would remain his--what remained to be acquired may not be his at any time. But an attempt to get his remaining rights cannot be held to extinguish the rights which had been already acquired. These could only be lost by surrender, abandonment, etc., and the attempt to get more is not one of the recognised methods by which the rights already acquired could cease to exist. I must therefore, hold that a mere claim to hold the property as an owner cannot result in the plaintiff being deprived of her existing rights.
5. It was disputed at the bar that there was no proof that the plaintiff had been exercising her right of way on the western plot, as required by Section 15 of the Indian Basements Act, with the intention of acquiring an easement and that if the property was being enjoyed by her either in the assertion of ownership or even on the basis of a general public right she could not be held to have exercised her right of way as an easement, that is, with the intention of acquiring it by way of an easement. As already seated, if the plaintiff could be shown to have been exercising her right of way from 1911 to 1935 as an owner, her claim to an easement should have failed. There is no proof, however, of that fact. Relying on the documents Ex. B, Ex. C, Ex. D, and Ex. E, it was claimed that the same Consequences should follow if a person is found to have been exercising a right of way on the basis of a general public right and not in the exercise of the private right which she now claimed. There is again no proof of the fact that she had exercised the right of way between 1911 and 1935 on that basis and not on the ground of easement. There is nothing in the record to show that she ever asserted a general public right before 1935. In the absence of any allegation as to any licence or agreement, if the plaintiff is found to have been using a way over the plaintiff's land, openly peaceably and as of right, for over the statutory period as she is found to have been, she must be held to have acquired an easement' in respect of that right. In the absence of any allegation of ownership during that period, her user must be regarded to have been with the animus of enjoying the easement as such in the defendant's land.
6. Even in the letters to which reference was made by learned Counsel for the appellant, the right was claimed by virtue of being a dominant owner in respect of the servient tenement belonging to the defendant and not independently of it; that is to say, it was not being claimed as a right in gross but as an easement. This is very different from the claim of ownership. A right in gross is claimed by a person irrespective of any land of which he is possessed, but contains no claim of ownership in the corpus of the property. It cannot therefore be treated in the same manner as a claim of ownership has been. But even if it were otherwise, when I have found that the allegation of ownership after the right had matured into an easement would be insufficient to destroy the easement, the allegation that it was being enjoyed as a public right or a right in gross after the easement had been acquired could not equally do so. It cannot stand in a worse position than that of the claim of ownership.
7. The lower appellate Court has, after a full consideration of all the evidence and circumstances, found that '' the said portion (referring to the plot now in dispute) was being used as a pathway for over 20 years prior to the suit and even prior to 1935' and that 'inmates of the plaintiff's house were going along the western arm in the Union lane'. I take that finding to imply that the right of way over the defendant's property was being exercised by the inmates of the plaintiff's house for its beneficent enjoyment with the animus of acquiring a right over the defendant's property.
8. In this view the decision of the lower appellate Court is right and must be upheld. The appeal consequently fails and is dismissed with costs.
9. I may in the end add that the gate constructed by the defendant was not ordered by the lower appellate Court to be closed. Nothing in this judgment should be, construed to imply that I; have done so. It will remain but will not affect the plaintiff's right of way over the plot now in dispute.
10. (Leave refused)