The main legal point established in the judgment is the importance of determining the animus of the claimant in asserting the right to easement and the impact of mistaken belief of ownership on the acquisition of easement rights.

Phillips, J.

1. In this case there are two houses, Nos. 19 and 20, adjoining one another and apparently they both originally belonged to the same family. For many years past, and certainly for 20 years, the inhabitants of No. 20 have been using a privy situated in No. 19 and for that purpose have been enjoying the right of way over portions of No. 19. The plaintiff in this case originally brought a suit in 1917 for recovery of house No. 19, but that suit was dismissed. He has now brought the present suit for a declaration that he is absolutely entitled to the latrine marked C in the plan and to the use thereof, and, in alternative, as a right of easement. Although the plaintiffs suit to recover house No. 19 has been dismissed, yet, in his plaint, he persists in asserting his right to it inclusive of the latrine marked C, and he pleads in the alternative that he is entitled to the use of the latter as an easement. The learned City Civil Judge has found that this right has been established and has given a decree accordingly, and this decision is in accordance with a decision of this Court in Konda v. Ramasami [1915] 38 Mad.1. There it was held that the mere claim of the higher right of ownership would not prevent a person from acquiring a lessor right of easement, provided he can show that he asserted certain right of enjoyment over the land in question for the benefit of another land belonging to him. This case purports to follow a Full Bench decision in Narendra Nath Barari v. Abhoy Charan Chattopadhya [1907] 34 Cal. 51. A similar view was taken in this Court in Vekataratna Dikshitar v. Subbaroya Pillal [1911] 1 M.W.N. 95. It is now urged for the appellants that this view is opposed to the decision of the Judicial Committee in Attorney General of Southern Nigeria v. John Holt and Co., Liverpool Ltd. [1915] A.C. 599 and also to decisions in Jalaluddin v. Asad Ali [1883] A.W.N. 66. and Chunilal Fulchand v. Mangaldas Govardhandas [1892] 16 Bom. 592., the two latter decisions being under Section 26 of the Limitation Act, the Basements Act not being applicable in those provinces. I think it must be conceded that the contention that the decision in Attorney-General of Southern Nigeria v. John Holt and Co., Liverpool Ltd. [1915] A.C. 599 is opposed to the decisions of this Court is correct. There their Lordships say :

In substance the owner of the dominant tenement throughout admits that the property is in. another and that the right being built up or asserted is the right over the property of that other. In the present case this was not so. For these reasons their Lordships are of opinion that the grounds upon which the judgment appealed from are put cannot be maintained.

2. The question is not discussed at any length, and the case being one from South Nigeria, it is obviously not based upon the provisions of the Indian Easements Act and it is upon the language of Section 15 of that Act that this Court based its conclusion. In addition to the decision of the Judicial Committee, we have been referred to a case in Lyell v. Lord Hoth field [1914] 3 K.B. 911 which distinguishes two earlier cases, Earl De La Warr v. Miles 17 Ch. D. 535, Dawson v. McGroggan [1908] Irish Reports 92. In the former case it was held by Brett, J., that the user having been established, the fact that the user was based upon a right which was found not to exist was not material. Cotton, L.J., came to the same conclusion. Nor do I think that the leading-judgment of James, L.J., takes any different view. This case and the Irish case were considered in Lyell v. Hothfield [1914] 3 K.B. 911 by a single Judge and were distinguished on the ground that in those cases the acts of user were done in pursuance of an alleged right in Alieno Solo although the claim was made under a mistaken belief, but where the acts were acts attributable to a claim of the ownership of the soil itself there can be no question of obtaining an easement. This is the view taken in Attorney Gen