Appeal No 435 of 1967
Appeal from the judgment and decree dated September 30 1966 of the Bombay High Court Nagpur Bench in Letters Patent No 4 of 1964
22 I S C India71 338 section T Desai and A G Ratnaparkhi for the appellant
Rameshwar Dial Jaishi Ram Goel and A D Mathur for the respondent
The Judgment of the Court was delivered by Shelat J
By a deed of lease dated May 5 1906 the prede cessor in title of the respondent let out to the appellant s father an open portion of land measuring 26 ft
x 225 ft
out of a larger plot
The lease was for constructing buildings and for a period of 30 years certain at the annual rate of Rs 130
The lease contained iner alia the following  Even after the prescribed time limit I shall have a right to keep my structure on the leased out land so long as I like and I shall be paying to you the rent every year as stated above
You will have no right to increase the rent and I shall also not pay it myself and my heirs shall use this land in whatever manner we please
After the lease period we shall if we like remove our building_ right from the foundation and vacate your land
In case we remove our structure before the stipulated period we shall be liable to pay to you the rent for all the thirty years as agreed to above  
In case I were to sell away the buildings which I shall be constructing on the above land to anyone else then the purchaser shall be bound by all the terms in this lease deed  
The trouble between the parties started when the respondent commenced construction on the rest of the land in a fashion so as to be in close vicinity to the western boundary of the leased land to house an industry called Sudha Industries
The appellant filed the suit in 1958 out of which this appeal arises urging that the said lease was a permanent lease that buildings had been constructed on the leased land partly in 1906 and the rest in 1909 and 1922 that the said plot of land was subsequently demarcated into two survey numbers 94 and 93 that a strip of land 4 ft in width and measuring 650 sq
immediately to the west of survey No94 and forming part of survey No 93 was covered by the said lease and was in his possession as part of the leased land or was acquired by him as accession
Pending the suit the appellant amended the plaint asserting that the portion let out under the said deed of lease was 5850 sq
in the aggregate which included the said strip of land and annexed a new plan showing details of the land which according to him was leased out under the said deed
339 Out of the structures put up by the appellants father the central building as shown in the plan produced by the appellant has windows on the ground first and second floors all opening on the western side
The eaves of that building protrude on that side by about 2 12 ft with the result that the rain water falls over the said strip of land
According to the plaint
there is a drain partly in plot No 94 and partly over the said strip of land which carries the entire waste water from the said building
According to the appellant the said construction made by the respondent shut off light and air which he had been enjoying from the aforesaid windows
He had other complaints also to make and claimed amongst other things a declaration that the said strip of land was part of the leased land covered by the said deed or in the alternative that he bad acquired it by way of accession and prayed for a permanent injunction against shutting off light and air through the said windows and interference with his rights over the said strip of land either as the lessee thereof or as and by way of easements over it
The respondent s answer to the suit briefly was that the appellant was not entitled to the said strip of land either as failing under the said lease or as accession
The respondent also denied that the appellant was entitled to any of the reliefs claimed by him that the said lease was not a permanent lease but was for a period of 30 years in the first instance but being a lease for constructing buildings thereon and being transferable could at best be for the lifetime of the lessee the appel lant s father
He also averred that part of the land comprised in plot No 93 used to be let out from time to time to persons including the appellants father who had executed a separate rent note dated July 21 1935 and who had under the said note been in possession thereof as a lessee from 1935 to 1941 and that he having been permitted a such a lessee the use of the said strip of land to enable him access to the said leased portion of survey No 93 there was no question of his having acquired any easementary rights by prescription over the said strip of land
The Trial Court partially decreed the appellant s suit in that it rejected the appellant s claim to the said strip of land but granted a declaration of easement for light and air through the said windows and for carrying said drain over the decree the appellant filed an appeal before the respondent also filed cross objections
The dismissed the appellant s appeal with the result that the appellant s waste and rain water through the said strip of land
Against that judgment and District court District Court and allowed the cross objections suit was dismissed
A second appeal filed by the appellant in the High Court was heard by a Single Judge who held that the said lease was a permanent lease that the appellant had acquired the said strip of land as accession to the leased land and as a consequence of those findings 340 granted a mandatory injunction directing removal of any con struction or projection by the respondent over the said strip of land
In view of his finding that the said strip of land had always been in thepossession of the appellant and earlier of his father ever since 1906 and thus had been acquired as an accession he considered it unnecessary to go into the question of easementary rights claimed by the appellant
The principal ground on which the Single Judge founded his judgment was that the lease was both transferable and heritable and therefore had to be held as a permanent lease
Aggrieved by thejudgment and decree passed by the learned Single Judge the respondent filed a letters patent appeal wherein three principal questions were canvassed  1 whether the said lease was a permanent lease 2 whether the strip of land in dispute was covered by the said lease or in the alternative acquired as accession and 3 in
the alternative whether the appellant had acquired easementary rights over the said strip of land a of light and air
b of passage and c of draining water both waste and rain over the said strip of land
The Letters Patent Bench answered all the three questions against the appellant holding that the said lease being a lease for building purposes and transferable was a lease for an indefinite period and therefore for the lifetime of the lessee the said Dhanji that the said strip
of land was neithercovered
under the said lease nor acquired as accession through adverse possession and lastly that
except for the drain extending upto 32 ft
constructed on the said strip of land
the appellant had not acquired any other easementary rights over it
As to light and air the Bench held that the appellant failed to establish that the obstruction caused by the respondent s construction was such as to give him an actionable claim against the res pondent
The result was that except for the said draintheBench dismissed the appellant s suit
Mr Desai for the appellant raised three contentions in sup port of the appeal 1 that on a proper interpretation of the document of lease
the lease was a permanent lease 2 that there was an accession in respondent of the said strip of land within the meaning of section 108d of the  and therefore 
the said strip of land must be deemed to be comprised in the lease and 3 that the appellant had acquired by prescription rights of easement of light and air of throwing rain water and draining waste water through the said drain and of passage over the said strip of land Under section 15 of the Easements Act 1882
On the question of interpretation of the document of lease Mr Desai supported the View taken by the Single Judge
The learned Single Judge construed the document to mean a that the lease was for building purposes b that It was in the first 341 instance for 30 years certain c that the lessee was to continue to enjoy all rights as a lessee even after the expiry of 30 years and d that the lesser could not increase the rent even after the expiry of 30 years
The most important term of the said lease
said the Single Judge was the one which provides for the leasehold right continuing to the heirs and successors
The Letter Patent Bench however felt that on a proper construction of the document the lease was for an indefinite period and though transferable did not provide for any hereditary rights
 In support of that conclusion the Bench pointed out that the view consistently taken by the High Court of Bombay right from the decision in Vaman Shripad vs Maki1 was that such a lease is to be construed as one for the lifetime of the lessee and not as a permanent lease
The only solitary case where a lease for an indefinite period was construed as permanent was that in Sonabai vs Hiragavri 2 but subsequent decisions of that High Court had dissented from that decision and had consistently held leases for indefinite periods as leases for the lifetime of the lessee
see Donkangonda vs Revanshiddappa 3
In Bavasaheb vs West Patent Co4 Sonabai s case 2 was once again dissented from the High Court reiterating that a lease for an indefinite period is ordinarily to be construed as one for the lifetime of the lessee and that a distinction should be made between a transferable and a heritable lease
The High Court
there observed 1 that if a lease were to be for a definite period and before that period was over the lessee died the leasehold rights during the remainder of the period would enure for the benefit of his heirs unless the document stipulated that in such an event the rights of the lessee were not to enure for the benefit of his successors 2 that if the lease was for an indefinite period it would not enure for the benefit of the lessee s heirs
such a lease would usually be for the lifetime of the lessee himself unless it clearly appeared from the contract that the benefit of the lease was intended to accrue to the lessee s successors
 Whether a lease was permanent or for the lifetime only of the lessee even where it was for building structures and was transferable depended upon the terms of the lease and the Court must therefore look at the substance of it to ascertain whether the parties intended it to be a permanent lease
But the fact that the lease provided that the lessee could continue in possession of the property so long as he
paid the stipulated rent did  hot mean that the 1ease
was for perpetuity
It would usually be regarded as a lease for an indefinite period and as such
for  the lessee s lifetime
The High Court also pointed out that the fact that tenancy rights were transferable as provided 1 ILR 2 3 4 56 Bom
LR61 342 by section 108j of the  did not mean that they were also heritable
In two of its decisions Runge Lail Lobes vs Wilson1 and Promada Nath Roy vs section Chowdhry2 the Calcutta High Court took the view that where the purpose of the lease was for constructing buildings the court could presume even though the document did not in terms so provide that the lease was intended to be permanent
To the same effect was also the decision in Navalram vs Javerlial3
On the other hand in Lekhraj Roy vs Kunhya Singh4 where the lease was for the period of the continuance of the lessors  mokurruri the Privy Council held that if it could be ascertained what the term was
the rule of construction that a grant of an indefinite nature enured for the lifetime of the grantee would not apply
But if the grant was made to a person for an indefinite period it enured generally speaking for his lifetime and passed no interest to his heirs unless there were words showing an intention to grant a hereditary interest
In Abdul Rahim vs Sarafalli 5 the Bombay High Court adhered to the view consistently taken by it that the lease there was for the lessee s lifetime
The lease there contained terms similar to those before us
It was for building a factory and although it provided for 25 years certain in the first instance it also provided that after the expiry of that period the lessee would continue to take the agreed rent so long as the lessee remained in possession and further provided for the lessee s right to remove the factory when he decided to hand over the land to the lessor
The conflict of opinion amongst these decisions has since then been resolved by the decision in Bavasaheb s case6 having been expressly approved by this Court in Sivavogeswara Cotton Press vs Panchaksharappa 7 The lease here was for building factories and other structures and was for a period of 20 years certain
It however provided that the lessee could continue to remain in possession so long as he desired and observed the terms of the lease which provided for a higher rent for the first 10 years after the expiration of the said 20 years and a still higher rent thereafter
14 of the lease in addition provided that it was to be binding on me my heirs executors administrators successors and assigns as well as on
your heirs executors administrators successors and assigns 
The question was as to the 1 1899ILR26 Cal2042 Cal
3 4 1876 77 L R 4 I A 223
5 6 56 Bom
L R 61
7 343 nature of the lease
At page 885 of the report the Court remarked that cl
14 was a very important clause which though coming as the last clause must govern all the stipulations between the parties
Thus the terms conditions of the km which created the rights and obligations between the lessor and the lessee were specifically declared to be binding on the heirs and successors in interest of the lessor the lessee
The Court then examined various decisions of the different High Courts including Navalram s case Promnada Nath Roy s case 2 and lastly Bavwaheb s case 3
As to the last case the Court at page 889 of the report expressed its complete agreement with the observations of Gajendragadkar J as he then was namely that the nature of the tenancy created by a document must be determined by construing the document as a whole that if the tenancy is for building purposes prima facie it might be arguable that it was intended for the life time of the lessee or might in certain cases be even a permanent lease and lastly that whether it was a tenancy for life or a permanent tenancy must ultimately depend upon the terms of the contract itself
As can be seen from an earlier passage on that very same page the Court distinguished Bavagaheb s 3 case on the ground that the lease there did not contain a provision similar to cl
14 in the case before it
Besides the Court sought an additional support for its conclusion that the lease was permanent in the provision which stipulated that the rent would be Rs 350 a year for the first 20 years Rs 400 for the next 10 years and Rs 500 thereafter until the lessee continued to occupy the land which provision indicated that the lease was not intended to be only for the life time of the lessee
It is clear from the decision that what clearly weighed with the Court was the fact that the document of lease distinctly indicated that the parties intended that the rights under the lease were to be hereditary
The question
therefore
is whether the lease under consideration is of the type in the case of Sivayogeswara Cotton Press4
Looking at the document exhibit P 4 as a whole
the lease un doubtedly is for building a residential structure
Though it is for 30 years certain the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent which the lessor was not entitled to increase
But though the lease is for building structure and the period is indefinite there are at any rate no 1 2 Cut
3 56 Bom
LR 61
4  344 express words indicating that the leasehold rights thereunder were intended to be heritable
On the other hand it expressly provides as was the case in Abdul Rehim1 for the right of the lessee to remove the structures meaning thereby vacating the land if he so desired
The clause providing for such removal is not that the lessee would remove the structures on default in payment of rent but depends on his own volition a clause indicative of the parties not having intended the lease to be permanent
For if it was intended to be permanent there was no necessity for providing such a right
But the argument was that there are words in the document indicative of the lease having been indented to be heritable as was the case in Sivayogeswara Cotton Press 2
The mere fact however that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that It is a permanent lease
Such a provision can be made in two ways resulting in two different consequences
A lease may provide a fixed period and then include a provision that in the event of the lessee dying before the expiry of such period his heirs would be entitled to have the benefit of the lease for the remainder of the period
In such a case although the lease may provide for the heirs to succeed to the interests in the leased land it would only mean that such heirs succeed to the rights upto the expiry of the lease period
If the lease on the other hand were foran indefinite period and contain a provisions for the rights thereunder being heritable then such a lease though ordinarily for the lifetime of the lessee would be construed as permanent
The question therefore is to which of these two classes of leases the present lease belongs
After reciting the purpose for which it was made the term of 30 years and the rent
the deed provides Even after the prescribed time limit I shall have a right to keep my structure on the leased out land so long as I like and I shall be paying to you the rent every year as stated above Though the period is 30 years this part of the document would make the lease for an indefinite period which would ordinarily mean a lease for the lifetime of the lessee
What follows then however gives scope for the argument that it is not merely for the lifetime of
the lessee You will have no right to increase the rent and I shall also not pay it myself and my heirs shall also not pay it myself and my heirs shall use this land in whatever manner we please
After the lease period we 1 21962 3 SCR 876 345 shall if we like remove our building right from the foundation and vacate your land
In case we remove our structure before the stipulated period we shall be liable to pay to you the rent for all the thirty years as agreed to above And further In case I were to sell away the buildings which I shall be constructing on the above land to anyone else then the purchaser shall be bound by all the terms in this lease deed
 This part of the document undoubtedly gives the lessee the right to transfer by sale the leasehold interest
But as already stated a clause enabling the leasehold interest to be transferred does not render such interest heritable
The effect of these clauses is that the first part of the document ensures that the lessor cannot charge rent higher than the agreed rent even if the lessee were to remain in possession after the period of 30 years
That part is consistent with the lease being for an indefinite period which means for the lifetime of the lessee
The next part provides for the right to remove the structures after the lease period
The words after the lease period mean either at the end of the 30 years or on the death of the lessee because it also says that if the lessee were to remove the buildings before the expiry of 30 years he would have to pay the rent for the remainder of that period
This part of the document does not show the intention that the lease was to be a permanent lease
It merely ensures the right to remove the structures if the lessee or his heirs so desired on the expiry of the lease period ie either at the end of 30 years or after the lifetime of the lessee
The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land
In the event of the first contingency the lessee s heirs would continue in possession till the expiry of 30 years and then remove the structures if they wished
In the case of the second contingency the heirs of the lessee would have the right to remove the structures on the death of the lessee
In either event the right provided for is the right to remove the structures
It is not a provision for the lease being heritable and its being consequently a permanent lease
Thus the lease is for a period certain ie 30 years and on the expiry of that period if the lessee still were to continue to pay the rent for his lifetime
In the event of his dying before that period the benefit of the lease would enure to his heirs till the completion of 30 years
They would be entitled to remove the structures either 346 at the end of the 30 years if the lessee were to die before the expiry of that pariod or at the end of the lessee s fife were he to continue to be in possession of the leased property after the expiry of 30 years
But the lease did not create hereditary rights so that on the death of the lessee his heirs could succeed to them
In this connection it is necessary to note that as translated in English it would appear as if the document uses the pronoun I  meaning as if the lessee in the earlier part and the pronoun we meaning the lessee and his heirs in the latter part
Such a translation however is not correct
We ascertained from Mr Ratnaparkhi who after looking at the original Marathi assured us that the pronoun used throughout is ami which means we a term often used in documents written in regional language for the executant instead of the singular I 
In our view the lease before us is clearly distinguishable from that in the case of Sivayogeswara Cotton Press1 where the leasehold rights were in clear terms made heritable and where the Court held that cl
14 though placed last in the document governed all its There is no provision in the present cast comparable with such a clause
The lease was undoubtedly for an indefinite period which only means that it was to enure for the lessee s lifetime
Reference in it of the heirs of the lessee is only for the
limited purposes set out earlier and not for making the leasehold interests heritable
We do not find in the document words such as those in Sivayogeswara Cotton Press 1 would compel us to the conclusion that the lease was intended to be permanent
That leads us to the second contention of Mr Desai
Under section 108d of the  if any accession is made to the leased property during the continuance of a lease such accession is deemed to be comprised in the lease
If the accession is by encroachment by the lessee and the lessee acquires title thereto by prescription he must surrender such accession together with the leased land to the lessor it the expiry of the term
The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant go long as the km continues and afterwards for the benefit of the landlord The of the appellant
in the plaint in regard to an accession was vague and confused
Para 2 of the plaint simply stated that the said strip of land was part of plot No 93 but was used by the appellant as a passage
para 7a of the plaint howeverused the word accession to the leasehold rights of the plaintiff in respect of the nazul plot No 94 but did not say that such 1  347 accession came about as a result of or by means of adverse possession
In para 8a which was inserted in the plaint by an amendment in 1959 an alternative plea was made that the said strip of land was part of the land under the lease
The written statement of the respondent denied the user of the said strip of land by the appellant and also the plea of accession thereof to the leased land
But the appellant s case was only that the building which his father had constructed extended upto the end of the western boundary of plot No 94 with the result that a the eaves of that building projected over plot No 93 by about 21 ft that its windows on that side opened on plot No 93 and a drain was constructed by the side of the appellant s western boundary through which waste water flowed from that building
According to the appellant s case the said strip of land which withou t doubt forms part of plot No 93 was used by the appellant as a passage for going to a well situate in plot No 93
Plot No 93 however was an open plot until recently except for a small structure on its northern side so that there was no definite or well marked passage which was used by the appellant in order to reach the said well
The projection of the eaves or the opening of the windows on to the said strip of land were not asserted as acts of adverse possession or encroachment but as easementary rights
The appellant did not claim any right to the said well as admittedly the use of the said well for drawing water was with the consent of the lessor
Therefore the use of the passage for going to the well would be incidental to the permissive use of the said well As regards the drain the appellant s evidence was that it passe partially through the said strip of land
Originally a kachha drain it was made pucca upto a distance of 32 ft in 1923
No width of it however was shown
Obviously there can therefore be no adverse possession over the whole of the 4 ft wide strip of land
The Letters Patent Bench has pointed out three circumstances as emerging from the evidence which clearly negative the case of accession by adverse possession 1 that the original plot was given two numbers 94 and 93 in 1929 plot No 93 being shown as commencing from the western wall of the appellant s building 2 that no protest was ever made against such a demarcation by the appellant or his father and 3 a clear admission by the appellant in cross examination that according to him the said strip of land was covered by the lease deed add was not an acquisition over and above the leased land under that deed
Parties to a suit are it is true entitled to make contradictory pleas in the alternative in their pleadings
But at the stage of the evidence no serious attempt was made by the appellant to establish accession by adverse possession
On the contrary the appel 348 lant sought to make out a case of easementary rights by prescription a case incompatible with the claim of adverse possession where a party claims title over the land of another as his own and therefore there would be no dominant tenement claiming a right by prescription over a servient tenement
In this state of the evidence the Letters Patent Bench in our judgment was right in rejecting the claim of accession which the learned Single Judge had erroneously accepted
As regards the appellant s claim to the easementary rights assuming that a lessee can claim such rights over an adjacent property belonging to his lessor section 15 of the Easements Act requires that the access and use on the basis of which an easement is claimed must be as and by way of easement and without interruption for a period of 20 years
The enjoyment must be in other words as of right and not permissive either under a licence or an agreement
In Abdul Rashid vs Brahman Saran1 a Full Bench of the Allahabad High Court held on the principle embodied in section 12 that the possession of a tenant being in law the possession of his landlord the tenant cannot acquire by prescription an easement in favour of his holding except on behalf of his landlord
The Full Bench however made a distinction between an easementary right of way and an easementary right of light and air mentioned in the first two paragraphs of section 15 and held that though a lessee of land who is the owner of the building on such land cannot acquire by prescription an easement of a right of way or one to flow water over another land of the lessor so far as the use of light and air or support for his building is concerned he is the owner of the building and may under the first two paragraphs of section 15 acquire such easements as he would not acquire them for any one except himself under section 12
This decision was followed in Haji Abdulla Harron vs Municipal Corporation Karachi2
But in Ambaram vs Budhalal3 the High Court of Bombay differed from the Allahabad High Court holding that the distinction in English law arising from the language of sections 2 and 3 of the Prescription Act 1832 between an easement of light and air on the one hand and of easement of way on the other did not hold good under the Easements Act as no such distinction is made in sections 4 and 12 of the Act that it is under section 12 that an easement is acquired and not under section 15 which provides for not the persons who can acquire easementary rights but the method by which they can be acquired and therefore the principle laid down in sections 4 and 12 would apply namely that if the lessee acquires a right to light and air he does so on behalf of the owner and therefore he cannot acquire it on behalf of the owner 1 ILR 1938 All
2 ATR 1939 Sind 39
3 349 as against such owner
There is thus clearly a conflict of view between the two High Courts
It is however not necessary to resolve this conflict in this case as the question of easements in the present case can be disposed of in another way
IV of the Act deals with the disturbance of easements and section 33 therein provides that the owner of any interest in the dominant heritage or the occupier of such heritage may institute a suit for the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff
Under Explanation II read with Explanation I to the section where the disturbance pertains to the right of free passage of light passing through the openings to the house no damage is substantial unless the interference materially diminishes the value of the dominant heritage
Where the disturbance is to the right of the free passage of air damage is substantial if it interferes materially with the physical comfort of the plaintiff
In Ravachand vs Maniklal 1 it was held that an easement by prescription under sections 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight
Therefore if the owner of a dominant tenement has during the period of prescription exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement then his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement
As already stated a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement
But where he has pleaded ownership and has failed he cannot subsequently turn around and claim that right as an easement by prescription
To prove the latter it is necessary to establish that it was exercised on some one else property and not as an incident of his own ownership of that property
For that purpose his consciousness that he was exercising that right on the property treating it as someone else s property is a necessary ingredient in proof of the establishment of that right as an easement
In his evidence the appellant did not claim the right of passage or of light and air or of draining his waste and rain water over the said strip of land as rights over the respondent s property
On the contrary he made it clear that the said strip of land fell 1 ILR 350 under the document of lease
I have a right on both the properties under the lease dead itself
he declared in his
evidence and added whatever rights I have acquired are under the lease deed itself and not afterwards His claim that the strip of land was included in the leased land could not succeed because he had to admit that although two different municipal numbers 94 and 93 were given as early as 1929 to the portions of the land 94 to the portion under his possession and 93 to that under the possession of the respondent no complaint was ever made to the municipality or any other authority that the strip of land which he claimed to be covered under the lease should be included in his plot namely No 94
In 1940 and again in 1955 when transfer deeds in respect of plot No 94 were executed by him the area mentioned therein was described as measuring 5182 sq
ft which would not include the strip of land forming part of plot No 93
Having thus failed in his claim that the said strip of land was acquired either as accession or as one covered by the lease deed he could not turn round and successfully claim that he had during the requisite period exercised rights over it on the footing of an owner of a dominant tenement exercising those rights over a servient tenement of another
Assuming however that the said strip of land was used by him as a passage the evidence clearly showed that it was permissive
There was evidence of a permission having been asked for from the respondent s father by the appellant for installing a handpump over the respondent s well in plot No 93
If the appellant and previously his father were permitted to draw water from that well the use of the well for drawing water and of the strip of land as a passage for going to the well was clearly permissive and not as an open hostile use over the lessor s property
The appellant himself admitted that his father had taken a portion of plot No 93 on lease paying separate rent therefore at Rs 45 a year and had put up thereon a tin shed which stood there from 1935 to 1941
It is clear that the strip of land was allowed to be used as a passage both to the well and the said tin shed
He admitted two letters dated September 30 1958 and December 4 1959 having been written by him to the respondent both relating to rent due by him in respect of the said land on which the said tin shed stood
On these facts it is impossible to sustain the right of passage over the said strip of land as an easementary right by prescription for a continuous period of 20 years
As to the light and air through the windows on the western side it is clear from Explanations II and III to section 33 that to constitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air is less than before
There must be a substantial privation of light enough to render the occupation of the house uncomfortable 351 according to the ordinary notions of mankind
See Colls vs Home and Colonial Stores1
The plan produced in evidence shows that the central part of th e appellant s building has five windows on the ground floor five in addition to one smaller window on the first floor and four on the second floor
All these windows are in the rear side of the building and open out an to the said strip of land
There can be no doubt and the plan shows clearly that as a consequence of construction by the respondent there would be a deprivation partially though it would be of light and air previously enjoyed by the appellant through these windows especially as they are on the western side
On the ground floor all the five windows are affected
On the first floor only three windows are affected and that too partially
On the second floor none of the four windows is affected at all
Thus so far as the ground and first floors are co  the appellant would not have the same amount of light and air
as before
But the evidence shows that there are openings doors and windows on each of these floors on the front side ie on the eastern side
There was some evidence also that the ground floor bad so far been used as a godown or a store room though the appellant a that he had been using it also as a living room
No attempt however was made on behalf of the appellant to establish that the obstruction caused by the respondent s construction had been such as to amount to a substantial privation so as to render occupation of the house by him uncomfortable
In the absence of such proof he was rightly nonsuited by the High Court
As regards the drain we say nothing as part of the appel lant s claim in regard to it has been allowed by the High
Court and there are no cross objections against it by the respondent
In the view that we take the appellant Cannot succeed on any one of the three questions raised by his counsel
The appeal therefore fails and has to be dismissed with costs
VPS Appeal dismissed


Summary:
In 1906 the predecessor in title of the respondent leased out an open portion of land to the appellant s father
The lease was for building a residential structure and the appellant constructed a house
Though it was for 30 years certain the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent which the lessor was not entitled to increase
There were no express words indicating that the leasehold rights were intended to be heritable
The deed provided for the right of the lessee to remove the structures after the lease period meaning thereby vacating the land if he so desired
It gave the lessee the right to transfer by sale the leasehold interest
In 1929 the original plot was given two numbers 94 and 93 the latter being the western portion in the possession of the respondent lessor and the former being the eastern portion leased out to the appellant
There was a strip of land 4 ft
in width immediately to the west of survey No 94 and forming part of survey no 93
This strip of land was used by the appellant for passage for going to a well situated in plot No 93
The appellant s father had taken a portion of plot No 93 including the strip on lease paying separate rent therefore and put up thereon a tin shed which stood there from 1935 to 1941
Sometime thereafter the respondent commenced construction on survey No 93 in close vicinity to the appellant s plot On the questions 1 Whether the lease was a permanent lease 2 there was an accession in respect of the strip of land within the meaning of section 108d of the  and therefore the strip of land must be deemed to be comprised in the lease and 3 whether the appellant had acquired by prescription rights of easement of light and air and of passage over the strip of land under section 15 of the Easements Act 1882
HELD 1 The question as to whether a lease was permanent or for the life time only of the lessee even where it was for building structures and was transferable depends upon the terms of the lease
The mere fact that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a permanent lease
Such a provision can be made in two ways resulting in two different consequences
The lease may provide a fixed period and then include a provision that in the event of the lessee dying before the expiry of such period his heirs would be entitled to have the benefit of the lease for the remainder 336 of the period
In such caes although the lease may provide for the heirs to succeed to the interests in the leased land it would only mean that such heirs succeed to the rights up to the expiry of the lease period
If the lease provided that the lessee could continue in possession of the property so long as he paid the stipulated rent it would usually be regarded as lease for an indefinite period and as such for the lessee s life time
In such a case if the lease contains a provision for the rights thereunder being heritable then such a lease though ordinarily for the lifetime of the lessee would be construed as permanent
341F H 344C E In the present case since the lessee was entitled to remain in possession even after the lease period it was a lease for an indefinite period
But there was no provision in the deed making the lessee s right heritable  and therefore it was not a permanent lease but only for the lifetime of the lessee
344A 346D E a The words if the lessee were to remove the buildings before the expiry of 30 years he would have to pay rent for the remainder of the period do not show an intention to create a permanent lease
The clause providing for such removal is not that the lessee would remove the structures on default of payment of rent but on his own volition a clause indicative of the parties not having intended the lease to be permanent
344B 345E F b The words after the lease period  mean either at the end of 30 years or at the death of the lessee
Therefore the clause that after the lease period we shall if we like remove our buildings  merely ensures the right to remove the structures if the lessee or his heirs so desired on the expiry of the lease period that is either at the end of 30 years or after the lifetime of the lessee
The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land
In the event of the first contingency the lessee s heirs would continue in possession till expiry of 30 years and then remove the structures if they wished
In the case of the second contingency the heirs of the lessee would have a right to remove the structures on the death of the lessee
In either event the right provided for is the right to remove the structures
It was not a provisions for the lease being heritable and its being consequently a permanent lease
345D H c The pronoun used in the document is the vernacular equivalent of we  used for the executant instead of the singular I  and does not mean the lessee and his heirs
346B C Sivavogeswara Catton Press vs M Panchaksharappa   Lekhraj Ray vs Kunhya Singh 1876 77 LR 4 IA 223 Vaman Shripad vs Maki ILR  Donkangonda vs Ravanshivappa  Bavasaheb vs West Patent Co 56 Bom
LR 61 and Abdul Rahim vs Sarafalli  referred to
Sonabai vs Hiragayri  Runge Lall Lobes vs Wilson Cal 204 Promoda Nath Roy vs section Chowdhry Cal
648 and Navalram vs Javerilal  disapproved
2 Under section 108d of if any accession is made to the leased property during the continuance of a lease such accession is deemed to be comprised in the lease
346F 337 In the present case the appellant made no serious attempt to establish accession by adverse possession
347H a When the plots were separately demarcated including the strip in the respondent s portion no protest was ever made against such a demarcation by the appellant or his father
347G b The appellant made a categorical statement in evidence that according to him the said strip of land was covered by the lease deed and was not an acquisition over and above the leased land under the deed but the evidence showed that strip was not so included
347G H c The appellant sought to make out a case of easementary right by prescription a case incompatible with the claim of adverse possession 348A B 3 Under sections 12 and 15 of the Easements Act an easement by prescription can be acquired by assertion of hostile claim of certain rights over another man s property
In order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is riot his  own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right
Where he has pleaded ownership and has failed he cannot subsequently turn round and claim that right as an easement by prescription
To prove the latter it is necessary to establish
that it was exercised on someone else s property and not as an incident of his own ownership of that property
349D G In the present case the appellant having claimed though unsuccessfully that the strip of land was included in the leased land or that there was an accession he could not successfully claim that during the  requisite period he exercised rights over it as the owner of a document tenement
Further
he could not claim any right of passage because his use of the strip as a passage was permissive
350C E As to light and air through
the windows on the western side the appellant could succeed only if there was a substantial privation of light enough lo render theoccupation of his house uncomfortable according to ordinary notions of mankind 350H 351IA In the present case the plan showed that as a consequence of construction by the respondent there would be a partial deprivation of light and air
But no attempt was made on behalf of the appellant to establish that the obstruction caused by the respondent s construction had been such as to amount to substantial privation so as to render the occupation of the house by the appellant uncomfortable
351 C E Rayachand vs Maniklal ILR 1946 Boni
184 FB approved Colls vs Home and Colonial Stores   applied The questionwhether under sections 4and12 of the Easement Acta lessee can acquire a right to light and air as against the owner left open 349A