Phool Chand vs Nagjiram

V.R. Niwaskar, J.—This second appeal arises out of a suit for mandatory injunction.

Plaintiffs claimed right in respect of a ventilator existing in the ground-floor of his house. The right is claimed against the adjoining owner of the land. It was alleged that the owner of the servient tenement raised a platform in his court-yard on 11-10-1949 and thereby closed his ventilator which had existed in a room on the ground floor of his house. He therefore prayed for a direction against the defendant requiring him to pull down his platform so as to clear the ventilator in question. The suit was filed on 10-9-1952. The plaintiff claimed the right to the ventilator on the ground that the ventilator had existed in the room in question since a considerable time that is for over 20 years and that he and his predecessors in interest had been enjoying light and air as of right. The right, according to him, had matured into a prescriptive right. The suit was resisted interalia on the ground that the claim to prescriptive easement was untenable. A specific issue namely issue No. 4 was famed upon this point. The trial Court dismissed the suit holding that the prescriptive easement claimed by the plaintiff did not exist. It was found that the plaintiff had enjoyed the right derived from the ventilator for about 20 years but this period of 20 years or more had not ended within two years next before the institution of the suit. The enjoyment had come to an end on 11-10-1949 and the suit was filed on 10-9-1952.

The plaintiff preferred appeal against this decision. The appellate Court held in plaintiff''s favour and decreed the suit. According to the appellate court the plaintiff could claim the prescriptive right of easement, in case the enjoyment had continued for 20 years or more and that period of 20 years had come to an end more than two years before the institution of suit.

In this case the propriety of interpretation put by the lower appellate Court upon the Clause immediately preceding Explanation in Section 15 of the Easement Act is challenged. This clause is as follows:-

Each of the said periods of twenty years shall be taken to be a period ending within two years, next before the institution of the suit wherein the claim to which such period relates is contested.

The period of twenty years according to this Clause should end within two years next before the institution of the suit wherein the claim to such period relates is contested. In the present case although there is a finding to the effect that the prescriptive right had been enjoyed for more than 20 years it is clear from the allegations contained in the plaint itself that this period of 20 years had not ended within two years next before the institution of the suit.

In a similar case reported in AIR 1947 All 374 Mst. Chanda devi Vs. Mst. Kirpa it was held with reference to a right of allowing rain water to flow through a certain land that even though the plaintiff or her predecessor might have been flowing the water of the roof through the ''ABCHAK'' land for a period of 20 years or even more nevertheless if they ceased to exercise that right for over two years next before the institution of the suit wherein the claim to which such period relates is contested that right fails. In (Yalavarthi) Ramakistnayya Vs. (Yalavarthi) Rattayya, , it was found, as in the present case that the easement by prescription had been enjoyed for 20 years yet it was further found that the defendant had lost his right to easement because he had ceased to avail himself of it more than two yeas before the suit. On this finding the claim to easement was negatived. In AIR 1922 Bom 3 Ratanlal Vs. Gulam Husen, it was held that mere cessation of user even without any adverse act for a period of not less than two years before the suit is enough to extinguish the claim to easement.

In view of these decisions there is no doubt whatever that the plaintiff had lost his claim to easement by prescription since he had failed to bring his suit within two years from the date of cessation of that easement.

Mr. Sharma for the respondent, however, contended that the plaintiff apart from claiming a right by prescription has also claimed a right on the ground of easement by necessity.

I am unable to read anything of that sort in the pleadings as set out in the plaint. Para 4 of the plaint, upon which the learned counsel relies, refers to nothing else than easement by prescription The learned counsel emphasised the words to the effect that the ventilator was absolutely necessary for light and air. Such allegation is not the allegation as regards the existence of right of easement of necessity. That is a term as defined in the Act. Moreover the plaintiff is clear enough. At the close of the Para he sayst that the right he claimed is a prescriptive right. This is mentioned by him specifically in English although the rest of the mention is in Hindi.

The contentions of Mr. Sharma therefore cannot be accepted. The decision given by the Court below is unsustainable.

The appeal is therefore allowed and the decision of the trial Court is restored and the plaintiff''s suit is dismissed with costs throughout.