JAGAT NARAYAN, J.—This is a second appeal by Magni Ram and Baloo Ram defendants in a suit for demolition of certain constructions and for grant of a permanent injunction which was decreed against them by the Civil Judge Bhilwara. The decree was confirmed on appeal by the District Judge, Bhilwara.

2. Between the houses of the plaintiffs and Magni Ram and Baloo Ram defendants there is a piece of enclosed open land marked ABCD in plan Ex.17. This land is situated to the south of the house of the plaintiffs. Eight Baris marked H to O, 8 Roshandans marked Y I to Y8 and one window marked C of the house of the plaintiffs open towards this land. Further 9 open projecting spouts of the house of the plaintiffs discharge on this land. Three of these spouts are on the first floor and marked P. Q and R. Six of them are on the second floor and are marked S to X, There is an opening EF in the northern wall of the contesting defendants through which they could have access to the land ABCD. It is through this opening EF that the water from the house of the plaintiffs discharging on the land ABCD flows out through the house of the contesting defendants. The contesting defendants started making constructions on the land ABCD in the year 1953. The present suit was then instituted. An order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. This order was defied and the constructions were raised so as to block the three spouts P. Q and R and all the 17 apertures. The plaint was thereafter suitably amended. The case of the plaintiffs was that either they were the exclusive owners of the land ABCD or they were the joint owners of it along with the defendants or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. They prayed that the constructions made by the contesting defendants on the land ABCD may be ordered to be demolished and a permanent injunction may be granted to safeguard their rights in respect of the apertures and the spouts. They also prayed that the contesting defendants be ordered to repair their constructions which they had demolished for making their new constructions.

3. The main contention on behalf of the appellants is that the claim for easement put forward on behalf of the plaintiffs cannot be said to have been perfected by exercise for the statutory period as there was no animus on their part of enjoying the easement as such, they being under the belief that the land ABCD was their own. Reliance was placed on Lalit Kishore V. Ram Prasad (1) and Sayrabi V. Ahmedji (2). On behalf of the respondents the decisions in Mst. Umrao Kanwar Vs. Mst. Ram Pyari (3), Dwarka Vs. Ram Jatan (4), Mahesh Pratap Singh Vs. Rampal Singh (5) and Rau Rama Vs. Tukaram Nana (9) were referred to.

4. The relevant portion of sec. 15 of the Easements Act runs as follows: —

"Acquisition by prescription::—Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, without interruption, and for twenty years, and

Where support from one persons land, or things affixed thereto, has been peaceably received by another persons land subject to artificial pressure, or by things affixed thereto, as an esaement, without interruption, and for twenty years and

Where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,

the right to such access and use of light or air, support or other easement, shall be absolute."

5. It will be noticed that the easement for the access and use of light and air and for support can be acquired by peaceable enjoyment without its enjoyment being as of right. It is only in case of other easements that it is necessary to enjoy them as of right in order to acquire an absolute r;ght in respect

Click Here to Read the rest of this document