Chhotalal Bhaichand vs Babulal Sunderlal

This appeal raises an interesting question of the law of easement. The question is whether a dominant owner who has not acquired any right of easement against Government for a particular period can tack that period to the one during which he is in the process of acquiring a right against a private parson. The facts are shortly these. The plaintiff is the owner of the property, survey No. 162 in the City of Jamnagar and he has purchased the suit land from the Jamnagar State in 1931. The defendant respondent claims to be the dominant owner and the dominant tenement is situated just adjacent to the (suit laud?). The defendant''s case was that he was discharging water from his house through two khals on to the land in dispute for a long period of time commencing from 1896 and that he has continuously done so not only upto 1931 when the land was sold by the Jamnagar State to the plaintiff but also some time before the date of the suit in 1942. In that year the plaintiff attempted to close the khals so that water could not go out on the servient tenement, from the khals. The defendant prayed the Municipality for the removal of the obstacle and the Municipality having passed a decision in the defendant''s favour, the plaintiff has brought the present suit for an injunction that the defendant be restrained from throwing water into the servient land from the two khals.

Two points arose before the lower Court on these allegations: (1) Since what time the defendant was discharging water on the servient tenement? (2) Whether the defendant had acquired any right in law to discharge water on the servient tenement. On the first point, both the lower Courts have found on evidence that the defendant had been discharging water since 1896 i.e., for a period much longer than 20 years before the date of the suit, but it is also found that the defendant has not discharged water for a period of 60 years before the date of the suit and that be baa not been discharging water for a period of 20 years after 1931 when the plaintiff purchased this land from Government. In other words, there was no right acquired against the Jamnagar State for a continuous discharge of water for a period of 60 years if such a right could be acquired under the law and that as against the plaintiff no right was acquired by a continuous use for 20 years after he purchased this land. On the question of law both the Courts have held that although the defendant has not acquired the right either of 60 years against the Jamnagar State or of 20 years against the plaintiff, be has acquired the right as against the plaintiff because he has been discharging water from his house for a period of 20 years before the date of the suit and that he can acquire such right even under the Jamnagar law as prevailing in the State.

Now the position about the law as applicable to the facts of this case is that the Easement Act of 1882 was not made applicable in the Jamnagar State although the spirit of the Act was followed. Section 26, Limitation Act, was applicable but it was the old section before its amendment in 1882 as regards the acquisition of rights against the State. The position, therefore, was that under the Jamnagar law as it stood on the date of the suit, a person cannot acquire any right of easement against the Jamnagar State at all although he can acquire a right to discharge water against a private individual by continuous user as of right for a period of 20 years. On these facts, the learned appellate Judge was rightly of the opinion that in the forms Nawanagar State it was not possible for any subject to acquire a right of easement by prescription against the State. The contention of the appellant, therefore, that no right of easement in respect of the drains in question was acquired by the respondents against the former Nawanagar State till the plot of the land over which the right is claimed was sold by the State to the appellant is well founded. In our opinion that contention is quite correct and that is supported by a decision in Secy. of State v. Mathura Bhai 14 Bom. 213. In that case it has been laid down that:

The provisions of Section 26, Limitation Act XV[16] of 1877, do not apply to the Grown. The mere mention of the Crown in an Act has not the effect of making all its provisions applicable to the Crown, and Section 26 does not relate to the limitation of suits, but to an entirely different matter, viz., the creation of rights by the enjoyment of them, which is a branch of the substantive Law. The section is clearly in prejudice of the Crown''s rights, and the other provisions of the Act do not afford sufficient evidence of an intention that this section should apply to the Crown.

These observations were based on the maxim that the Crown is not bound by a statute unless expressly named therein and it was further held that that maxim applies to this country. That being so it is quite clear that under the law embodied in Section 26, Limitation Act before 1882 which law is the same as in Section 31 of the Jamnagar Act, no one can acquire any right of easement against the Crown i.e. on the facts of the present case the Jamnagar State. That being so the defendant cannot be said to have acquired any right as of right before 1931 and his right against the plaintiff came into existence only from that year but the exercise of that right against; the plaintiff is only for 11 years from 1931 to 1942 and therefore this period is not sufficient to create any right. The period must be 20 years. The learned Judge does recognise the force of this argument and he indeed observes in his judgment that if the right of easement cannot be acquired against the Crown at all, the period during which the right is enjoyed over the servient tenement when it is of State ownership, cannot be taken into consideration when computing the period of 20 years before the date of the suit. If no easement could be claimed by any subject against the Nawanagar State, then the enjoyment of the right would not be ''as of right'' as mentioned in Section 15, Easement Act. That being the learned Judg''s view we would have expected that he would allow the plaintiff''s appeal but he thought it inconsistent to hold first that in cases, where the right of easement is claimed against the transferee from the Government the dominant owner has to establish his 20 years user before the date of the suit irrespective of the fact that for part of the period the servient tenement was owned by the Government, and then to go on to hold that different consideration would apply if no easement could be claimed against the Government. It appears that the learned Judge was influenced by the observations made in Ram Parsad v. Lalit Kishore AIR 1942 ALL. 405 . It, however, appears that in Lalit Kishore Vs. Ram Prasad, , which was a Letters Patent Appeal against the decision in Ram Parsad v. Lalit Kishore AIR 1942 ALL. 405, a contrary view was expressed although it may be said that the appeal was allowed on a dif. ferent point. In Lalit Kishore v. Ram Parsad A.I.R 1948 ALL 362, it is observed:

A person who had begun a period of prescription against the Government might continue the period as against the Government''s transferee as such. But a person claiming an easement against a transferee from the Government hag an option. He can either base his claim upon user for a period of sixty years against the Government and the transferee as such of the Government or if he so prefers he can ignore the period of prescription against the Government and base his claim entirely upon user for a period of twenty years while the property has been in the possession of the transferee.

In our opinion, this reasoning in Lalit Kishore Vs. Ram Prasad, , seems to be correct but even there is difference between the facts of that case and the facts of the present case. The facts of the present case are more similar to those in Secy. of State v. Mathura Bhai 14 Bom. 213 than those of the other cases refer, red to by the learned Judge in his judgment. It is quite clear that under the Jamnagar law no one can acquire any right of easement against Government. That being BO, it is surprising how a man can acquire any right against the Government even if he intends to enjoy the easement as of right. According to Section 26, Limitation Act as well as Section 81 of the Jamnagar Law, user must be exercised as of right. Now ''as of right'' clearly implies that there is a right which law has given to the person and which he can acquire. Mr. Gajera contends that a person can acquire such a right even though in law be may not be entitled to acquire that right against the party against whom be intends to acquire it but that contention does not hold good at all. Unless a right is created in favour of a party at the end of a particular period, it is difficult to see how a person can intend to use any property as of right. Even if be intends to do so in his mind, still at the end of no period of time can that user ripen into a right in law. In the present case, there is no such right created by law and therefore it is quite dear that till 1931 the defendant had not acquired any right against the Jamnagar State and even if he intended to use it as a right that would be of no avail because the Jamnagar State was entitled to stop him at any time from using the khals and it must be therefore taken that if he discharged any water upto 1931 on the land inside it must only by an implied permission and not by way of right.

In the result, therefore, we are of the opinion that the view taken by the learned Judge below is not correct and that the principle of decision in Secy. of State v. Mathura Bhai 14 Bom. 213, is applicable to the facts of the case, with the result that the defendant has not acquired the right to discharge water on the suit land for a continuous period of 20 years and that therefore the plaintiff has a right to obstruct it.

It was next contended on behalf of the respondent that when in 1931 the plaintiff purchased the suit land from the Jamnagar State there was a condition attached by the defendant in the document of transfer and that condition practically amounts to a grant in favour of the defendant for the discharge of water. What is stated in this document is this:

lunokyh tkX;kuh fN=heka cktwuh tX;kuk ts gdd gks; rs dk;e jk[kok rFkk ojlknh ik.khuks uhdky [kqYyks jk[kokuh jlrs tkt:

This means that the plaintiff who purchased the land was bound to respect any rights which the adjacent owner had acquired in the Chhitri of the suit land. What it really means is that if the adjacent owner has acquired any rights till 1936 then those rights are to be respected by the purchaser, but it cannot be said that in that year the defendant had acquired this right of discharging water. At that time the State had sold this land five years ago to the plaintiff and there was no acquisition as we have held above either against Government or against the plaintiff. It is to be noted that in the defendant''s documents of the land of which he is the owner i.e., the dominant tenement there is nothing to show that the owner of that house had always a right of discharging water on the servient land. What the defendant tries to do is to make out his right from a condition attached to the sale deed passed by the State in favour of the plaintiff but that cannot in any way be said to be a grant in the defendant''s favour. Even assuming that proper words had been used which could have been implied as a grant, there are no specific words in this document to show that the Jamnagar State sold this land to the servient owner subject to the defendant''s right of discharging water on the land. In the absence of any specific words to that effect it cannot be said that even if the right of casement had been created, the defendant has acquired that right.

We are, therefore, unable to hold that the defendant has acquired any such right by grant. Under the circumstances the plaintiff was justified in blocking the two khals and he is, therefore, entitled to the injunction which he has prayed for. The appeal is allowed, the decree of the lower Court is reversed and the plaintiff''s suit is decreed with costs throughout.