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Judgment
Sadasiva Aiyar, J.—The 1st defendant is the appellant. The suit was brought claiming the following reliefs:
(1) The establishment of the plaintiff''s right of way, marked A-B in the plaint plan, through the land of the defendant on to the plaintiff''s land:
(2) For an injunction to the defendants to remove the fence which they put up across the path about 10 months before the suit:
(3) For the issuing of a permanent injunction against the defendants'' obstructing the path.
The lower Appellate Court (as I read its judgment) came to the following conclusions:
(a) The plaintiff and his predecessors-in-title to the dominant tenement, were using the plaint path for much longer than 20 years before the
interruption took place in September 1910 by the act of the defendants putting up the fence. (The suit was brought in July 1911 and the evidence
of the plaintiff''s 2nd witness speaks to the enjoyment for 40 years).
(b) Though the 1st defendant objected to the plaintiff using the way in 1907 or 1908, the plaintiff did actually continue to enjoy the right of way till
the fence was put up in September 1910. The plaintiff says in his evidence ""the path was not closed"" till 1910; ""the pathway was closed, only five
or six days prior to the filing of the suit."" I think the word ""suit"" in this sentence is a mistake for the criminal complaint which was filed in August or
September 1910. ""Before that the defendants were objecting orally.
(c) The suit was not barred by the two years'' period of limitation prescribed by the Limitation Act as the cause of action arose only in 1910 within
a year before the suit and not in 1908 or 1907, the plaintiff not having had any interruption or restriction in the enjoyment of his rights.
On these findings, the decree of the District Munsif in plaintiff''s favour was confirmed by the lower Appellate Court. Mr. K.S. Ganesa Aiyar,
Vakil for the appellant, argued.
(a) that the oral objections and disputes admittedly raised by the 1st defendant (see Exhibit III) in 1907 and 1908 prevented the plaintiff from
acquiring a right of easement by prescription u/s 26, Clause 1, of Act IX of 1908;
(b) that Section 26, Clause 1, of Act IX of 1908, means (if I understood his contention aright), that a suit brought more than two years after such
oral objection and dispute raised by the defendant entailed the dismissal of such a suit as barred by limitation.
It must be pointed out that Sections 26 and 27 of the Limitation Act are not applicable to cases arising in territories to which the Indian
Easements Act, V of 1882, applies. (See Section 29, Clause 3, of the Limitation Act). The question even as regards an easement right claimed
under the statutory prescription is, therefore, strictly not one of limitation as was supposed by the lower Courts and as seems to have been
contended by the learned Vakil. The question when what might be called an easement by statutory prescription is claimed by a plaintiff, is whether
u/s 15 of the Easements Act (which applies to the Madras Presidency), the prescriptive right by enjoyment for 20 years has been acquired by the
plaintiff. As pointed out by Chamier, J., in Sultan Ahmad v. Waliullah 17 Ind. Cas. 22: ""The fifth paragraph of Section 15 of the Easements Act
seems to render it impossible to acquire a statutory prescriptive title to an easement unless and until the claim thereto has been contested in a suit.
See also Rajrup Koer v. Abdul Hossein 7 C.L.R. 529 : 3 Suth. P.C.J. 816 : 4 Ind. Jur. 530 and the judgment of Lord Macnaghten in Hyman v.
Van Den Bergh (1908) 1 Ch. 167 construing similar provisions of the English Prescription Act. As Peacock says in his book on Easements at
page 435: ""The right is created upon the bringing of the first action in which, by reason of the claim having been brought into question, it becomes
necessary for the person claiming such right to possess it for the purpose of his action or defence.
Hence the question is not one of limitation as I said before, but is one as to whether the enjoyment which is necessary to acquire the prescriptive
right, has been peaceable enjoyment and enjoyment as an easement without interruption for 20 years or more and all these to end within two years
before suit.
Mr. Ganesa Aiyar next contended resourcefully that the enjoyment in the present case could not be considered peaceable (see the first
paragraph of Section 15 of the Easements Act) up to within two years before suit, as there were wordy quarrels from the end of April 1907, when
the 1st defendant purchased the servient tenement, till July 1909, when the period of two years before the institution of the suit began. The short
question, therefore, remaining for consideration (assuming that the plaintiff claims his easement right by reason of the statutory prescription) is
whether the verbal disputes which caused no interruption to the enjoyment of the easement right claimed by the plaintiff prevented the enjoyment
being ""peaceable"" so as to prevent the acquisition of such prescriptive right.
It is rather curious that there seems to be no clear and sufficient authority on the question, whether verbal disputes which do not cause
interruption or obstruction to the enjoyment of the easement prevent the enjoyment from being peaceable, so that the plaintiff is precluded from
relying on such enjoyment as forming part of the 20 years'' peaceable enjoyment necessary to give him a prescriptive title.
Mr. Ganesa Aiyar based several of his arguments upon the history of the origin of prescriptive rights in English Law. I shall say a few words on
that question, as they seem to be required to clear the ground of irrelevant matters. There was, in the first place, the fiction in England that
easement rights, where they do not really arise from an express grant, must be supposed to have originated in some lost grant from the owner of
the (servient tenement The very widely differing opinions (about eighteen were received) given by the learned English Judges in the three stages
through which the case of Angus v. Dalton 50 L.J.Q.B. 689 : 44 L.T. 844 passed See Angus v. Dalton 3 Q.B.D. 85, Angus v. Dalton 4 Q.B.D.
162 and Dalton v. Angus 6 App. Cas. 740 show the subtleties and hair-splitting which even the most powerful intellects have to resort to, when
rights are based upon patently false fictions instead of natural rights. The presumption of a lost grant made in the old English cases is said by
Thesiger, L.J., in the Court of Appeal to be ""not a presuniptio juris et de jure, that is, not an absolute and conclusive bar, and that the Correct view
on this point is that the presumption of acquiescence and the fiction of an agreement deduced there from in a case, where enjoyment of an
easement has been for a sufficient period uninterrupted, is in the nature of an estoppel by conduct, which, while it is not conclusive so far as to
prevent denial or explanation of the conduct, presents a bar to any simple denial of the fact, which is merely the legal inference drawn from the
conduct."" See Peacock on Easements at page 148. Then there are old English cases in which it was said that a legal incompetence as regards the
owner of the servient tenement to grant an easement, or a physical incapacity of being obstructed as regards the easement itself, will prevent the
presumption of an easement by lost grant. Cotton, L.J., said in Angus v. Dalton 4 Q.B.D. 162 that Twenty years'' enjoyment does not confer an
absolute right, but raises a presumption of a modern lost grant which is not capable of being rebutted by an admission of evidence that there was in
fact no grant, unless supported by additional evidence that the adjoining owner was incapable of making a grant, or by any other rebuttable
evidence.
In the 6 House of Lords case not only did the five Law Lords including Lord Chancellor Selbourne take part at the second hearing, but the
opinions of seven Judges of the High Court had been invited and forwarded to the House of Lords. Bowen, J., in the course of his opinion See
Dalton v. Angus 6 App. Cas. 740, says that enjoyment which is capable of interruption is, therefore, capable of ripening into a right of easement
where such interruption does not occur. Then he adds: It might, perhaps, be added with some show of reason that the user ought,...to be neither
violent nor contentious. The neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and
unmistakble protests to destory its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised."" And
then he refers to Eaton v. Swansea Waterworks Co. 20 L.J.Q.B. 482, though in that case what took place was not a mere verbal protest by the
servient owner but actual physical obstruction added to, the prosecution and conviction of the servant of the dominant owner for traspass. See the
Eaton v. Swansea Waterworks Co. 20 L.J.Q.B. 482. The House of Lords in Dalton v. Angus 6 App. Cas. 740: 44 L.T. 844 held among other
things that de facto enjoyment of the easement of support for 20 years raised an absolute presumption in favour of the dominant owner which
cannot be rebutted by proof that a grant had not been made. To use the language of Peacock in his book on Easements, page 413: In the early
part of the nineteenth century, when war was made on all legal fictions and that of a lost grant fell into disfavour, the Legislature determined to
remove the blot on the administration of justice which arose from thus forcing the consciences of juries, and to substitute a direct for an indirect
method of lessening the period of prescription."" Then it was that Acts 2 and 3 of William IV, known as the English Prescription Act and Lord
Tenterden''s Act, were passed. In Arzan v. Rakhal Chunder Roy Chowdhry 10 C.J 214 decided in 1883, Grarth, C.J., refused to follow the view
put forward in some English cases as to the necessity of knowledge and acquiescence on the part of the servient owner for the acquisition of a
prescriptive easement under the Limitation Act of 1877. If I may say so with respect, I entirely agree with him. As regards the question when a
statutory prescriptive right has been acquired under the Easements Act, it seems to me neither necessary nor proper to go into the questions of lost
grants, acquiescence, consent and so on, which occupy so much space in the English Reports. I think it cannot be argued that when a man has
been openly and adversely and yet peaceably enjoying the easement as of right without interruption for 20 years till two years before date of suit,
the fact that the servient owner was a lunatic or was in jail, could prevent the acquisition of the title by prescription under the Easements Act.
As regards the meaning of the word ''peaceable'', I am inclined to hold that it means that tie plaintiff who claims to be the dominant owner has
neither been obliged to resort to physical force himself at any time to exercise his right within the 20 years expiring within two years of the suit, nor
had he been prevented by the use of physical force by the defendant in his enjoyment of such right. I do not think that oral oppositions and oral
expressions of dissent by the defendant can TI event the enjoyment being peaceable. The word ""contentions"" used in some English cases is of very
ambiguous significance. Though I have not been able to find any English case where mere verbal contentions (without resort to litigation) have been
held to prevent the enjoyment from being peaceable, it seems that in Roman Law, the acquisition of prescriptive right will be interrupted even by
verbal contentions (See Gale on Easements, page 231), Assuming, however, that I am wrong in my above view and that even verbal contentions
will prevent the acquisition of a prescriptive right under the Statute Law, that is Act V of 1882, I am quite clear that in this case, the lower Courts
were not justified in reading the plaint as if it claimed the prescriptive right of easement only or even mainly under the Statute Law. There is not a
word said about the Easements Act or the Limitation Act in the plaint. The 5th paragraph mentions the use of the path by the plaintiffs and their
ancestors for 30 years. The path is called ""a manual"" path in paragraph 13 of the plaint.
It has been held by. the Privy Council in Rajrup Koer v. Alul Hossein 7 C.L.R. 529: 4 Shome. L.R. 7 that a plaintiff need not rely upon the
statutory prescriptive right given to him under the Limitation Act of 1871, Section 27 (which corresponds to Section 26 of the later Limitation
Acts, and to Section 15 of the Easements Act). As their Lordships state at page 403: ""The object of the Statute was to make more easy the
establishment of rights of this description, by allowing an enjoyment of 20 years, if exercised under the conditions prescribed by the Act, to give,
without more, a title to easements. But the Statute is remedial, and is neither prohibitory nor exhaustive. A man may acquire a title under it who has
no other right at all, but it does not exclude or interfere with other titles and modes of acquiring easements. Their Lordships think that, in this case,
there is abundant evidence upon the facts found by the Courts for presuming the existence of a grant at some distant period of time.
That being so, the plaintiff does not require the aid of the Statute and his right, therefore, is not in any degree interfered with by the provisions
of Section 27 (that is, as to the period ending within the two years before suit upon which the District Munsif relied). Hence it has been held in
numerous cases that where open enjoyment has taken place for a long series of years, title by prescription was acquired independently of the
Statute and a suit to establish that right can be brought within 12 years after the obstruction. In a case in Karupan Zemindar v. Merangi Zemindar 6
Ind. Jnr. 465 an enjoyment for 18 years which ceased seven years before suit was held to give a prescriptive right. I think I am bound by the
decision in Karupan Zemindar v. Merangi Zemindar 6 Ind. Jnr. 465, which has never been dissented from. See also Arni Jagirdar v. Secretary of
State for India 5 M.K 226, Punja Kuvarji v. Bai Kuvar 6 B.K 20, Achul Mahta v. Rajun Mahta 6 C.K 812, Koylash Chunder Ghose v. Sonatun
Chung Barooie 8 C.L.R. 281, Charu Surnokar v. Dohouri Chunder Thakoor 10 C.L.R 577, Arzan v. Rakhal Chunder Roy Chowdhry 10 C.K
214, Hargovandas Lakhmidas v. Bajibhai Jijibhai 14 B. K 222 and Eshan Chandra Samanta v. Ail Moni Singh 35 C.K 851.
As in this case more than 20 years'' enjoyment before 1907 has been proved, even assuming the validity of the defendant''s contention that the
obstruction by word of mouth which took place in 1907 will prevent the acquisition of the statutory right of prescription, an easement by
prescription not depending upon the Statute had been acquired by the plaintiff before 1907 and the limitation for a suit for the possession of such
right is 12 years. If the suit is treated as a suit for declaration and injunction, even then the period of limitation would be six years. Hence this suit
was not barred by limitation. I would, therefore, dismiss the second appeal with costs.
Bakewell, J.
The question in this case is as to the meaning of the words ""peaceably and openly enjoyed by any person"" in the third paragraph of Section 15
of the Indian Easements Act, 1882. The adverbs peaceably and openly qualify the verb enjoyed and indicate the manner in which the dominant
owner must conduct himself in his use or enjoyment of the servient tenement; the conduct of the servient owner is immaterial, except so far as it
goes to show the nature of the user by the dominant owner. If it be desired to amplify the expression, which seems to me to be scarcely necessary,
I would paraphrase it as follows: ""the person who claims a right over the property of another must not have deprived him of that right by the use of
force or secretly"": in other words, the user must be ""nec vi, nee clan.
The noise and clamour on the part of the servient owner only go to show to my mind that the user was not secret.
I agree that the appeal should be dismissed with costs.