Suit for declaration of title.

The defendants are the appellants.

The respondent herein filed a suit substantially for three reliefs:

(1) for a declaration that the lane marked C D E F in the plaint plan is his exclusive property and for possession;

(2) for an injunction restraining the defendants from interfering with his right to drain water from his tiled roof situate on the eastern side of the lane, and also to have a free flow of light and air through the windows that exist on his western Wall shown as C.F. in the plaint plan, and, (3) for an injunction restraining the defendants from interfering with his possession of the lane south of the line A.F. and also from letting in their sullage water in a gutter situate in that lane.

2. The suit was resisted by defendants contending that the plaintiff is not the owner of the lane marked C D E F, that the said lane belonged to them exclusively, that the plaintiff has no easementary right over that lane, and that the lane south of the line A.F. is not the exclusive lane of the plaintiff, but a Municipal lane in which they have also a right to let in their sullage water.

3. On these pleadings, the trial Court held (1) that the title to the lane C D E F, though originally Vested in the plaintiff, had been lost by adverse possession of the defendants, (2) that the plaintiff is entitled to the right of easement claimed in respect of the lane C D E F, and (3) that the defendants have no right to let in sullage water by connecting his drainage to the gutter situate in the southern lane. Though in the judgment, the trial Court held that the plaintiff had lost his title to the C D E F portion, by inadvertence, its decree had been drafted as if the plaintiff is entitled to a declaration of title to that portion.

4. There was an appeal by the first defendant against the decree and judgment of the trial Court wherein he pointed out the mistake in the decree on the question of title to the portion C D E F The lower appellate Court set right that mistake and held that the plaintiff is not entitled to a decree declaring his title to the lane marked C D E F. On the other two questions, that is the question whether plaintiff is entitled to easementary right in the lane C D E F and the question whether the plaintiff can prevent the defendants from connecting the drainage to the gutter situate in the southern lane, the lower appellate Court practically agreed with the view taken by the trial Court. The defendants aggrieved against the decision of the lower appellate Court, are before this Court.

5. On behalf of the appellants, it is contended before me that the Courts below were in error in considering the plaintiff’s claim of easement over the lane C D E F, without reference to the claim of title put forward by him, and that as the plaintiff had claimed title to the lane C D E F, he cannot, at the same time, claim an easementary right over the same. According to the learned Counsel for the appellants, to acquire an easement by prescription, the necessary animus has to be proved, and as the plaintiff has not only claimed title to the lane in his plaint, but also has chosen to adduce evidence on the question of title and had invited the trial Court to give its decision on that question, and this conduct, on his part, shows that the requisite animus to acquire an easement by prescription was absent. The learned Counsel also points out that the trial Court found that the plaintiff originally had title to the lane C D E F, but he lost his title by adverse possession on the part of the defendants, that such adverse possession on the part of the defendants could have commenced only in the year 1942, when the first defendant purchased the property and erected the superstructure thereon treating the lane C D E F as his property, that the title would be lost only after the expiry of 12 years from 1942, that is, in 1954, and that if at all the plaintiff could acquire easement by prescription by establishing that he has exercised tha