Natwarlal Gordhandas and Others vs Donsinhji Vakhatsinhji

Chhatpar, J.—This is a second appeal arising out of a suit for declaration as to a tight of an easement of right of way and injunction filed by the plaintiff-respondent against the present appellants. The Court of first instance gave a decree to the plaintiff against which the present appellants filed an appeal to the District Court. The District Court upheld the decision of the trial Court and now the appellants have come in second appeal.

The right of way claimed is over a strip of land 19'' broad leading from the plaintiff''s block of building to the public street. The strip of land was at one time part of the property belonging to the predecessors-in-title of the appellants. The trial Court held that the plaintiff had proved his right of way for the statutory period. In the appeal to the District Court a point of law was raised by the appellants which was not stated in the written statement filed by them. This was that the suit of the plaintiff was barred being filed more than two years after the right of way was obstructed by the defendants. It appears that in order to prevent the plaintiff from exercising his right; of way the defendants put a fence on this strip of land which form a passage leading to the public street. This obstruction was first put on 17-5-1940. The plaintiff applied to the Deputy Political Agent, complaining against; this obstruction who by his order dated 6-5-1941, Ex. 14 in the case, ordered the fence to be removed and it is admitted by the defendants that on the same day it was in fact removed. But it seems the defendants were not satisfied with the decision and gave notice on 13-6-1941 to the plaintiff not to use the way. The plaintiff replied on 23-6-1941 claiming that he had the right of way. It is however admitted that no physical obstruction was put by the defendants who remained satisfied with verbal protests till 19-12-1941 when certain altercations occurred between the parties and some miscellaneous applications were also filed to the Police Authorities. On the earns day i.e. 19-12-1941 the defendants put a fence in the passage to prevent the plaintiff from using the right of way. The plaintiff filed the present suit on 16-11-1942 to put the -matter at rest by a Judicial decision.

On these facts Mr. C.N. Shah, learned Advocate for the appellants has argued that right from 16-5-1940 there has been no peaceful enjoyment as of right and without interruption and since the suit has not been filed with in two years from 16-5-1940 the plaintiff could not maintain his suit for declaration as to the right of easement as Section 15, requires that the period of 20 years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim is contested. The Section no doubt requires that the easement should have been peacefully and openly enjoyed without interruption for 20 years and as of right, but Exp. 2, to the Section lays down in very definite terms what should be deemed to be an interruption. It says:

nothing is an interruption within the meaning of Section unless there has been actual cessation of enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making of authorising the same to be made.

This explanation lays down 3 conditions for an interruption to be effective. These are: 1. It must cause actual creation of the enjoyment of the claimant; 2. The obstruction causing the interruption must have been placed, provided or raised by some one other than the claimant himself; and 3. the claimant must be proved to have submitted or acquiesced in the interruption for one year after the claimant had notice thereof.

In the present case, the first obstruction which amounts to actual cessation of enjoyment of the right of way was during the period from 16-5 1940 to 6-5-1941 i.e., for less than a year and would therefore not come within the interruption contemplated by Section 15 The second act of obstruction is from 19-13-1941 to 16-11-1942 when the suit was filed which is also for less than a year so that both the interruptions do not help the defendants.

The learned Advocate for the appellants has however urged that right from 16-5-1940 up to the date of the filing of the suit it could not be said that the right of enjoyment was either peaceful or as of right. Now the words "peaceful" and "as of right" have been interpreted in a series of rulings.

In the case of Ram Sarup v. Abdul Hag AIR 1931 Lah 395 a Bench of the Lahore High Court held as under;

The term ''as of right'' is not synonymous with ''(sis)'' but signifies enjoyment by a person in the assertion of a right. It is enjoyment had, not secretly or by stealth or tacit sufferance or by leave or favour or by permission asked from time to time on each occasion or even on many occasions of using it, but an enjoyment had openly notoriously without particular leave at any time by a person claiming to use it without danger of being treated as a trespasser as a matter of right.

The same ruling interpreted the word "peaceable" as meaning, "that the plaintiff who claims to be dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 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. The person who claims a right over the property of Anr. must not have deprived him of that right by the use of force or secretly. The word "peaceably" qualifies the word "enjoyed." A mere denial by the defendant of the plaintiff''s alleged right and his unsuccessful attempt to have this right negatived in Court of Law does not affect the plaintiff''s acquisition of easement. It was also held further that the interruption to be effective must result in actual discontinuance of the enjoyment of the right of claimant.

In the case of Kurvarbai v. Jamsedji Rustamji AIR 1919 Bom. 94 a Bench of the Bombay High Court observed as under:

Peaceable enjoyment within the meaning of Section 15 means enjoyment without interruption or opposition of the servient owner sufficient to defeat the enjoyment. Obstruction or opposition to the enjoyment of a right of easement must find expression in something done on the servient tenement itself. Mere protest on the part of the servient owner does not amount to interruption.

The Privy Council case of Pakala Venkanna v. Sri Rao Swetachalapati Ramakrishna Ranga Rao reported in AIR 1981 P.C. 128 is very instructive. In that case a right to take water from a water course was challenged by the plaintiff who filed a suit for declaration that the defendants had no right to take water from the Sayanna Batte for irrigating their land through a water course named as Uppaya Batte which took off from the Sayanna Batte. The Privy Council was pleased to observe as under:

Much has been made in argument of certain occurrences which took place in 1888 and 1907 respectively. In 1888 the Raja''s agents dammed the off-take of the Uppaya Batte. The appellants complained and the dam was removed. Their Lordships do not think that this incident throws any light on the question before them seeing that the appellants'' right to the natural flow down the smaller channel is now admitted. In 1907 water was apparently short and objection was taken to the obappa katu. The Raja''s people removed it twice; each time it was re-erected by the appellants; the Raja''s agent applied to the civil authorities to allow him the Police assistance to remove it again, but this was refused; the Raja was referred to a Civil Suit to establish his right but no suit was filed and the chappa katu remained. Their Lordships cannot think that this incident in any way weakens the case of the appellants. In effectual opposition to the exercise of what is claimed to be a right is evidence rather in support of the right than of its non-existence.

Applying these principles to the present case it cannot be held that the plaintiff was not enjoying the right of way from 6-5-1941 to 13-12-1941 peacefully and as of right. The obstructions from 16-6 1940 to 6-5-1941 and 19-12-1941 to 16-11-1942 not being each for a period of a year, do not come within the explanation to Section 15. These periods should also be considered for the purpose of computing the statutory period of 20 years required for perfecting the right of easement. On this point I am supported by a decision of the Lahore High Court reported in Sawan Singh v. Chattar Singh AIR 1918 Lah. 23. I consequently hold that the plaintiffs'' suit is not barred.

The learned Advocate for the appellant has raised Anr. point which is that the learned District Judge in coming to the conclusion that the enjoyment of more than 20 years was proved has mis-read the evidence of some of the witnesses on the question and therefore although this question is one of fact the Court of second appeal should go into it and rectify the error. The learned District Judge has very minutely gone into the question of user for the statutory period and has particularly relied upon the evidence of Jatashanker Lalji an independent witness who testifies to the effect that the-dominant tenement was build between 1915 and 1920 during which period the user of right of way must have commenced. The suit was filed'' in November 1942 and thus the 20 years user must he held to have been proved. In my opinion this is a question of fact and the mere fact that the learned District Judge has erred in the appreciation of the evidence of one or two witnesses does not entitle the Court of second appeal to go into the finding arrived at by the learned Judge. No other point has been urged by the learned Advocate for the appellants.

As the decision of both the points is against the appellants, I dismiss this appeal'' with costs.