A. N. SURTI, J. M. SHETH, J.

( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Assistant Judge Nadiad in Civil Appeal No. 108 of 1959 allowing the appeal and dismissing Regular Civil Suit No. 169 of 1957 with costs throughout.

( 2 ) THE learned Single Judge of this Court before whom the appeal was placed for hearing has referred it to the Division Bench and that is why the matter has come before us.

( 3 ) MR. C. M. Trivedi appearing for the plaintiff-appellant has urged that even though the plaintiff appellant in his plaint claimed ownership over the suit Chhindi in law he is entitled to take an alternative inconsistent plea viz. that he has got an easement right to take air and light through the door and the openings in his back wall abutting on the suit Chhindi and he is exercising such right and making such use from times immemorial. Mr. Trivedi has vehemently contended before us that even in the decision relied upon by the learned appellate Judge it has been in terms observed that such inconsistent plea can be taken and from the mere fact that ownership was claimed the Court could not jump to the conclusion that easement right was not established. He has further contended that this was not a case where right of way was claimed through the suit Chhindi. It was a case of right to take air and light through the door and the openings (Jalis) abutting on the Chhindi. In such a case mere long user would be sufficient to reach the conclusion that there was a requisite animus. Mr. Trivedi has further submitted that the Plaintiff appellant in his deposition had stated that he had not stayed in the house for the last several years and the house in question was in occupation of his tenants. Tenants stated about such enjoyment. It could not therefore be in the circumstances of the case said that the enjoyment was in the exercise of the rights of ownership and not in the exercise of the right of easement. He has therefore contended that in the circumstances of the case the learned appellate Judge was not justified in reaching the conclusion that there was no requisite animus to enable the appellant to get the right of easement.

( 4 ) WE first propose to refer to the question of law arising in this appeal as the matter has been referred by the learned single Judge to the larger Bench. Probably it must have been referred to a larger Bench in view of the contrary view having been taken by a single Judge on the Rajasthan High Court in SHIVPYARI V. MST. SARDARI A. I. R. 1966 RAJASTHAN 265 Bhandari J. has observed:if a person under a mistaken belief that he has a right of ownership over the land of the other which he has in fact not got has been doing for the requisite period of 20 years something which is otherwise sufficient for the acquisition of the right of easement he must be deemed to have acquired such right notwithstanding the fact that in his mind whatever he is doing he is doing in the belief that he is the owner of the other land though it turns out that he is not the owner of that other land If the physical acts committed by him are such as to entitle him to acquire the right of easement the mere fact that he has performed such acts with the consciousness that the other land belonged to him and not to the other person would not operate against him in the matter of acquisition of easement. The case may be different when the physical acts are not being done as of right for example what was being done was being done by virtue of a licence. In such case he cannot acquire the right of easement because his acts are performed not as of right but because of permission granted to him by the owner of the other land it is essential that continued user by a person must be in his own right otherwise he cannot acquire easement in spite of the fact that all along he is doing physical acts entitling him to acquire easement. IN case where the servient owner has property adjoining the one which is subject matter o

Click Here to Read the rest of this document