A prescriptive easement can only be acquired if the right is appurtenant to some dominant heritage.

1. This is a Letters Patent Appeal against the decision of Bose J. (as he then was). The present Appellants represent the Plaintiff Indersingh, who died during the pendency of the Letters Patent Appeal.

2. The dispute is with respect to certain sindi trees standing on two survey numbers in mouza Jamli Kalan of Khandwa tahsil. One of these fields, survey No. 128, is malik-mak-buza, while the other survey No. 127 is occupancy. The fight is between the Plaintiff and Phirozshah, the first Respondent, who is the malguzar-lambardar of mouza Jamli and who claims a right to the toddy drawn from these trees.

3. In the year 1940 the Plaintiff avers, this Phirozshah gave a licence to Respondent 2 to extract toddy from these sindi trees, which is number 51. According to the Plaintiff, he is entitled to extract this toddy from the sindi trees standing on the malik-makbuza land by virtue of his title to those trees and from the trees standing on the occupancy field by virtue of the village wajib-ul-arz read with Section 95 of the Central Provinces Tenancy Act.

4. The two Respondents as Defendants have made similar statements. The fight is obviously carried on by Phirozshah, the first Respondent, and he states that the extraction of toddy juice from these sindi trees has been going on for over 50 years and has been a source of income to the proprietary' body. Since there is a dispute about the pleadings of the answering Defendant it is necessary at this stage to refer to those pleadings in extenso. The relevant portion reads as follows:

In this village there is a natural growth of Sindhi trees and the extraction of Tadi juice from them has been a source of income to the proprietary body...it is further submitted that even if the Plaintiff succeeds in establishing his ownership over the M.M. field in dispute, it is submitted that this Defendant and his predecessors-in-title have been enjoying the right of extracting Tadi juice from the Sindhi trees peaceably and as of right for the last 50 years and more to the knowledge of the Plaintiff and his predecessors-in-title and hence this Defendant has acquired this right by adverse possession.... Hence the Plaintiff is now debarred from asserting his right in respect of the extraction of juice known as Tadi from the Sindhi trees....

5. The above pleadings which we have quoted refer mainly to the trees standing on the malik-makbuza field. In regard to the trees standing in the occupancy field the answering Defendant claimed a right to them by virtue of the wajib-ul-arz produced in the case. His contention is that these wajib-ul-araiz give to the tenant only the ordinary natural produce, that, is to say, the flowers and fruits of the fruit-bearing trees and not the toddy juice which is extracted by artificial means, not annually but every two or three years. We shall deal with the case of the trees standing in the occupancy field later.

6. On these pleadings, which were denied by the Plaintiff, the parties went to issue, and the decision of the first two Courts was that the Plaintiff was entitled to a decree against the Defendants.

7. On appeal, however, to this Court the learned single Judge decided that in respect of the trees in both the fields the Plaintiff was not entitled to succeed, and he accordingly non-suited him. The learned single Judge, however, granted leave and hence this appeal has been filed.

8. We shall first take up for consideration the question of the malik-makbuza field. The pleadings which we have quoted above show as if Defendant 1 was claiming a right of adverse possession in these trees. The pleadings, if construed strictly, would mean only this much that during the term necessary for constituting adverse possession the answering Defendant had been in adverse possession of these trees. That is how the case was apprehended by the first two Courts. The learned Single Judge, however, felt that these pleadings were sufficient to base a case of easements, or, as the learned Singl