JUDGMENT :- This is a plaintiffsappeal arising out of a suit for an injunction. The plaintiffs alleged that the defendants had opened a door in their house through which they started passing over the plaintiffsland and they had also constructed a parnalathrough which they had started flowing water and this parnalapassed through the plaintiffsland. The defendantscase was that the parnalaand the door were old and the defendants had! acquired the right to use them as easements.

The trial court decreed the suit. On defendantsappeal, the lower appellate Court after considering the evidence on record allowed the defendantsappeal in part and held that the door complained of was proved to be old, but dismissed the appeal so far as the pamalawas concerned. It further held that the defendants had the right of way through the door complained of and modified the decree of the trial Court to that extent.

2. In this Second Appeal the respondents are unrepresented. Learned counsel for the appellants has urged before me two points. The first is that the lower appellate Court has not properly appreciated the Amins report relating to the door. That report was an important piece of evidence. According to the learned counsel, the finding of the lower appellate Court as vitiated inasmuch as an important piece of evidence has been overlooked.

Learned counsel has taken me through the relevant portions of the judgment, but I feel it is not-correct to say that the Amins report escaped the attention of the lower appellate Court. In fact, it had mentioned the Amins map in connection - with the parnalaand I do not feel justified in thinking that it did not take the entire evidence including, the Amins map into consideration in arriving at the finding that it gave.

3. The second point raised by the learned counsel is that defendants 1 to 6 raised the plea of joint ownership of the rastaland, and because of this plea it appears that in exercising the right of way, the defendants had exercised that right as owner of the rastaland.

Reliance has been placed on several cases including - "Narayan Balvant v Shanker Waman, 1938 Bom 215 (AIR V 25) (A), Raychand Vanmalidas v. Maneklal Mansukhbhai, 1946 Bom 266 (AIR V 33) (FB) (B) and Lalit Kishor v. Ram Prasad, 1943 All 362 (AIR V. 30) (C). The last case is a case in which the defendant had, in an earlier proceeding taken the, plea that the land had belonged to him and this Court took the view that the person claiming the right of easement could not do so in respect of the land which he claimed to be his own.

The idea is that as required by S. 15, Indian Easements Act, the right to enjoy the easement should have been exercised as an easementfor the period prescribed. If the servient tenement belonged to the person claiming the easement, it cannot be said that the rights have been exercised as an easement. The fact appears to be that the right is one to be exercised as owner. That was not a case where the servient tenement was claimed to belong jointly to the person claiming the easement and the, other person against whom it was claimed.

The case reported in 1938 Bom 215 (AIR V 25) (A), however, was one in which a right to light and air through windows in a joint wall was claimed. The learned Judges were of opinion that this was not possible. They relied upon an earlier decision of their Court reported in - Marghabai Vallavbhai v. Motibhai Mithabhai, 1932 Bom 513 (AIR V 19) (D). The plaintiff in that case was claiming a right to the free access of light and air for his house over a strangers property.

It was found that between the plaintiffshouse and the defendants tenement there intervened a strip of land over which light and air had indeed come to the plaintiffshouse and this strip was owned jointly by the parties. The learned Judges thought that it followed that the plaintiff enjoyed the light and air by virtue of his right in the intervening land as a joint owner and did not enjoy it as an easement since the essence of

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