Velji Kochrabhai vs Bhupatrai Monekchand and Others

Chhatpar, J.—This second appeal arises out of a suit filed by the present applt. for injunction against the resps. restraining them from

discharging water from their drain on to the premises of the applt. The applt. is the owner of the property bearing Survey No. 222-B4 which he

purchased from the Navanagar Stale on 28.3-42. A sale certificate has been given to him by the Nawanagar State but the regular Sanad of the

property has not as yet been issued. The resp. 1 is the owner 08 property bearing Survey No. 145-B4, resp. 2 of property bearing survey No.

144 B4 & resp. 3 of property, bearing Survey No 143 B4. The properties of resps. 1 & a originally belonged to one man & they are on the east

of the property of resp. 3. Between them runs a gutter on the top of an elevation about 6 to 6 feet from the ground which discharges rain & drain

water on to the property of the applt-pltf. which is on the North of the properties of the resps. The gutter is 2 feet wide at the Southern end where

the properties of the resps. are situated & only about 19 inches wide at its northern end where the gutter touches the southern wall of the applt.''s

property. There are two drains in the property of resp. 1 & two drains in the property of reap. 2. From these drains water discharges in this gutter.

It is common ground that there are no drains in the property of reap. 3.

The applt. alleges that originally the water from the gutter was never being discharged on to the premises of the applt. & that the resps. have

recently changed the slope of the gutter & opened a drain in the southern wall of the applt''s. property to discharge the water from this gutter on to

his premises & as this change was made recently the applt. pleaded in the suit that the resps. had not acquired any right of easement in respect of

the gutter & he was, therefore, entitled to an injunction. On the other hand, the resps. contended that from times immemorial this gutter has been in

existence & been discharging water from the resp.''s premises on to the premises of the applt. & there fore they had acquired the right of easement

in respect thereof. The trial Ct. held that the gutter was in existence for over 70 years & the water from this gutter was being discharged on to the

premiers of the applt for the same period & therefore the rests, had acquired the right of easement in respect thereof. With this finding of fact the

lower appellate Ct. agreed, after going carefully into the evidence recorded in the case relying upon both the documentary evidence consisting of

the Sanads of the properties & other deeds as also the oral testimony of the witnesses one of whom was the very aged mother of resp. 1 who

testified that for nearly 70 years she has bean seeing this gutter being used. Both the lower Cts. held that the allegation of the pltf. about recent

alteration of the gutter & opening of new drains was false. These findings of fact are binding on a Ct. of Second appeal.

The pltf., however, raised one point & which has also been urged before me that he had purchased this property from the Navanagar State &

by the law prevailing in the Navanagar State no person could acquire any right of easement against the State. The pltf., therefore, contended that

when he purchased the property from the Navanagar State he had purchased it free of any right of easement which the resp. bad in respect of the

drain. The lower appellate Ct. held that since the property was now in possession of a private person, the prior ownership of the Navanagar State

would not matter & that the 20 years of enjoyment required, under the Easements Act against the present applt. could include any period of

enjoyment against the Navanagar State. On this point the learned Dist. J. discussed a number of authorities. This point has, however, been settled

by a judgment of this Ct. Chhotalal v. Babulal in AIR 1951 Guj 6 wherein it was held, contrary to the decision of the learned Dist. J. that she

period the property was in possession of the Nawanager State could not be added as the enjoyment cannot be said to be as of right. In the present

case, however, there is no evidence as to when the Nawanagar State a squired the property. It is admitted that this property belonged to some

Haveli before it passed to the State.

Now an easement can be acquired by three methods : (1) by express or implied grant, (2) by user as of right for the statutory period of 20 years

under the Easements Act & (3) by immemorial uses based upon the fiction of a lost grant. Section 8, Easements Act, permits the servient owner to

impose an easement on his property. For the second mode of acquisition of easement under the Easements Act, it is necessary that the required

period of 20 years or over must end within 2 years next before the institution of the suit wherein the claim to the easement is contested. This

necessarily implies that the right of eastment by prescription under the Act cannot become absolute unless the right has been contested in a suit.

There is ample authority for this proposition apart from the specific mention in Section 16 of the Easements Act. Reference is invited to cases

reported in Muthu Goundan v. Anantha Gaundan AIR 1916 Mad. 1001, Sultan Ahmad v. Walliullah 17 I.C. 22 & Rajrup Koer v. Abdul Hossein

6 Cal. 394.

In this case there is no evidence of declaration of any right of easement by any Ct. against the original owner of the servient tenement before it

was acquired by the Nawanagac State. As regards the period of enjoyment subsequent to the transfer of the servient tenement to the Nawanagat

Statp. the Nawanagar law prevented the acquisition of easement. The period after the purchase of the property from the Nawanagar State falls

short of the 20 years required by statute & the defts. cannot tack the prior period as held by the decision of this Ct. in Chhotalal v. Babulal AIR

1951 Guj 5. The result is that the defts. cannot take advantage of the seoond mode of acquisition of easement i.e., acquisition of easement under

the Easements Act by prescription.

But apart from the above two methods of acquisition of the right of easement by grant or prescription, the law has recognised an acquisition

independent of the Statute by long immemorial user which leads to an inference of a grant. This has been recognised is a series of rulings. The ruling

of the P.C. in the case of Rajrup Koer v. Abul Hossein 6 Cal. 394 holds that a parson can acquire the right of easement apart from the Statute. At

p. 403 of the report their Lordships observed as under:

The object of the Statute was to make more easy the establishment of rights of this description, by allowing an enjoyment of twenty 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 &

modes of acquiring easements. Their Lordships think that, in this case, there is abundant evidence upon the facts found by the Cts. for presuming

the existence of a grant at some distant period of time.

In this case the enjoyment of the right claimed was proved to be for a period of 50 or 60 years & it was observed that any Ct. which had to deal

with the subject might, & indeed ought to, refer such a long enjoyment to a legal origin, & under the circumstances which have been indicated, to

presume a grant or an agreement between those who were owners of the pltf''s mehal & the defts. land by which the right was created. This case

has been folld. by numerous cases where enjoyment for a considerable long time has been held to culminate in a right of easement on the

supposition that at some distant period of time the right must have been conferred by a grant. Joshi''s commentary on Easements & Licences, Edn.

2 at pp. 140 to 143 cites numerous cases wherein this doctrine of fiction of a lost grant has been recognised & applied by the Cts. in India. In the

case of Rambhai Dabhai Patel Vs. Vallabhbhai Jhaverbhai Patel, a right of easement to take water by proof of user of about 85 years was

reoognised & the P.C. ruling above refd. to was reld. upon. In the case of Nagarathna Mudaliar v. Sami Pillai AIR 1926 Mad. 682 the dootrine of

a lost grant was invoked & it was held:

To infer a doctrine of lost grant or a claim based on prescription all that is necessary to be alleged is long, continual & peaceful possession. Where

these incidents are found the Ct. will if possible presume a grant of the right in question & there is thus nothing to prevent a claim to title by lost

grant being made under the Indian law apart from Section 15, Easements Act.

In that case the right was enjoined for more than 30 years. The Calcutta H.C. in the case of Manmatha Nath Vs. Rakhal Chandra Mandal and

Another, recognised the right of casement of way which was enjoined for 40 years or 50 years from an inference of a lost grant relying upon the

same P.C. case.

In the present case this aspect has not been dealt with by the two lower Cts., but I find that the defts. had raised the plea of a very long user and

had adduced evidence in support thereof & both the lower Cts. have come to a concurrent finding that the drain has been in existence for over 70

years. Although a plea of immemorial user leading to the inference of a lost grant should ordinarily be specifically raised, I am of the opinion that in

the present case the parties were sufficiently aware of this plea raised in the written statement though in a somewhat indefinite manner & that they

have led evidence in accordance with it & the pltf. cannot be permitted to urge that this is entirely a new case set up for the first time in the second

appeal. The pltf. has not been prejudiced in any manner. In the Calcutta case of Manmatha Nath Vs. Rakhal Chandra Mandal and Another, refd.

to above the Calcutta H.C. observed:

Pleadings in India have to be construed somewhat liberally notwithstanding the fact that lawyers in general in the mofussil now are more fully

equipped than the average mofussil lawyers of half a century or more ago. Where the pltfs. did allege circumstances, namely, the user by

themselves & by their ancestors of the land as pathway for 40 or 50 years, the plaint may on a liberal construction be taken to have relied upon

long user leading to an inference of lost grant.

These observations apply with greater force to such a backward State as Saurashtra where a unitary Judicial system has been evolved only

recently.

A reference may be made to Anr. case of the same H.C. which appears to be on all fours with the present case on this point. This case is

reported in Kshirod Chandra v. Srish Chandra AIR 1915 Cal. 806 and there the pltfs. did not state in the plaint that they claimed the right under

any kind of grant nor did they state that they claimed it u/s 26, Limitation Act, but alleged that they & their predecessors before them enjoyed the

right of way peaceably, openly, as of right & without interruption, for about it hundred years & prayed for the establishment of their ancestral right

of way. The evidence in the case showed the enjoyment for a period of over 70 years & the lower appellate Ct. refd. such long enjoyment to a

legal origin by presuming a grant. When the matter was taken to the H.C. the only question was whether for want of a specific plea the defts. were

prejudiced. It was observed as under:

No doubt, in claiming a right of way the pltf. should state whether he claims the right by proscription, or grant, or in any other way, & the deft,

should know by which title the pltf. claims the right as otherwise he might be seriously embarrassed. In the present case the pltfs., it is true, did not

in the plaint state that they claimed the way under any kind of grant but neither did they state that they claimed it u/s 26, Limitation Act. Though the

particulars set out are those which are required for establishing a right under the statute, the facts which if proved would raise a presumption of

grant or other legal origin, were also stated in the plaint. The issue raised, viz. whether the pltfs. had any right of easement was sufficiently wide &

the pltfs adduced evidence to show that they had been in enjoyment of the right for about 70 years--evidence which would laid a Ct. to refer such

enjoyment to a grant or other legal origin. The deft, had, therefore, notice of such a claim before adducing his evidence, & it does not appear that

he complained before the lower appellate Ct. that he was taken by surprise. The pltfs. adduced documentary evidence, which in the opinion of the

Subordinate Judge was ''unimpeachable'' & extending over 70 years. We are not satisfied, having regard to all the circumstances of the case, that

the daft. has really been prejudiced.

The present case seems to be vary similar to the last cited case of the Calcutta H.C.

I consequently hold that in the special circumstances of the present case it is open to the resps. to base their claim on this plea. If the fiction of a

lost grant is invoked in favour of the defts. such grant can only be presumed to have been made by the Navanagar Skate or by the prior holders of

the servient tenement, & indeed in support of this we find that in the Sanads granted in respect of the properties of resps. 1 & 2 by the Navanagar

State one in the year 1923 & the second in 1929 a specific mention of this drain is made by the State. So that the resp''s claim on the fiction of a

lost grant can very well be maintained in the present case.

It may be pointed out that the case which was decided by this Ct. in S.A. No. 24 of 1950 was one of the alleged acquisition of right by

prescription & it was held by the Cts. below that although 20 years'' enjoyment was proved, it was at the same time proved that the enjoyment

was for less than 60 years. The Navanagar laws prevented an acquisition of easement by prescription but there is nothing therein to debar the State

from imposing an easement on its own property in favour of a subject by grant. Hence the decision in that Appeal No. 24 of 1950 does not come

in the way of the deft.s'' case so far as their case on the fiction of a lost grant is concerned.

Under the circumstances I see no reason to interfere with the decisions of the two lower Cts. & dismiss this appeal with costs.