IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 127 of 1995. Reserved on 4.12.2008. Decided on: 29.12.2008. __________________________________________________ Bimla Devi and others. … Appellants. Versus Sohan Lal and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. H.K. Bhardwaj, Advocate. For Respondents No. 2 & 4 to 6 : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For Respondents No. 1 (a) to 1 (d): None. and 3 (a) to 3 (f). ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Una in Civil Appeal No. 115 of 1989 decided on 30.11.1994. The predecessor-in-interest of the appellants-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit in the Court of learned Sub Judge (1), Una qua the suit land comprising of Khasra No. 361 (0-8 Marlas). 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Precise case of the plaintiffs was that the area underneath the cylinder of the Well and adjoining the cylinder of the Well was exclusively owned and possessed by his predecessor. It is further stated that in the area of 0-1 Marla, there is a cylinder of the Well which is jointly owned by the parties but in the remaining area i.e. 0-7 Marlas, the respondents-defendants (hereinafter referred to as the defendants for convenience sake) had no right, title or interest. The suit was contested by the defendants. It is stated in the written statement that the parties’ ancestors had agreed for construction of Persian wheel in the ancestors’ land of the plaintiff in 1948-1949. The ancestors of the plaintiff owned 0-4 Marlas of land and thus, the parties’ ancestors were entitled for ownership of 0-4 Marlas land in equal share underneath the Well i.e. plaintiff’s ancestors 1/3rd share and defendants’ ancestors 1/3rd share each. The parties’ ancestors besides constructing ‘Pucca’ Well also installed Persian wheel by equal contribution over the land for drawing water for irrigation purpose. According to defendants, the land beneath the cylinder of the Well as well as under Persian wheel i.e. 0-4 Marlas out of 0-8 Marlas stood jointly owned and possessed by the parties in equal shares. It was alternatively projected that if the defendants were not proved to be owner in possession of the area 0-1 Marla adjoining the Well and the 0-3 Marlas of Persian wheel, even then the same was used by the defendants for Persian wheel for more than 40 years exclusively as of right, as of easement without interruption and the defendants acquired the right of easement by prescription. The trial Court dismissed the suit on 3.5.1989. The plaintiffs preferred an appeal before the learned 3 District Judge, Una. The learned District Judge, Una dismissed the appeal on 30.11.1994. The plaintiffs have filed this regular second appeal against the judgment and decree dated 30.11.1994. The regular second appeal was admitted on the following substantial questions of law: 1. Whether the definition of ‘dominent heritage and survient heritage’ strictly apply to the cylinder of well and the land beneath the Persian wheel? 2. Whether respondents can claim easementary right qua the Persian wheel area i.e. 3 Marlas and respondents/defendants have any right over 3 Marlas of land? The appellant-plaintiff Shri Pritam Dass died during the pendency of this regular second appeal and his legal representatives were brought on record vide order dated 7.6.2001. The legal representatives of defendants Shri Roopa, Shri Gurdas Ram and Shri Kartar Chand were also brought on record after their death. Mr. H.K. Bhardwaj has strenuously argued that the judgment and decree passed by the learned District Judge, Una dated 30.11.1994 is not sustainable. His precise submission is that once the defendants had set up the plea of ownership, in the alternative, they could not claim easementary right by way of prescription to use the land under the Persian wheel measuring 0-3 Marlas. 4 Mr. Rajnish K. Lal vice Mr. K.D. Sood, Advocate has supported the judgments and decrees passed by both the learned Courts below. I have heard the parties and have perused the record carefully. The questions of law No. 1 & 2 being inter-connected and inter-linked are taken up together for hearing of this regular second appeal. In short, the dispute lies in very narrow compass. It pertains to the area measuring 0-3 Marlas under the Persian wheel (Mahal Chah). It is evident from the copy of Jamabandi for the year 1943-1944 Ex. P-1 that the entire land measuring 0-8 Marlas was owned by the predecessors-in-interest of the plaintiff. However, in the Jamabandi for the year 1952-1953 Ex. P-2, the defendants were recorded owners of ‘Mahal Chah’ to the extent of 1/3rd share each. These entries were repeated in the Jamabandis Ext. D-5 for the year 1956-1957 and Ext. D-10 for the year 1976-1977. In ‘Khatauni Pamish Bandovast’ Ext. D-13, the new number of old Khasra No. 361 was carved as Khasra No. 1585 and plaintiff was recorded owner in possession. The trial Court returned the findings that the parties were joint owners in possession of 0-4 Marlas of land out of total land of 0-8 Marlas. The learned District Judge, Una returned the finding that the plaintiffs were owners of land measuring 0-3 Marlas lying beneath the Persian wheel. However, after holding that the plaintiffs were owners have held that the plaintiffs had no right to use the land measuring 0-3 Marlas against the easementary right of the 5 defendants. This conclusion drawn by the learned District Judge, Una is contrary to law. It is settled law by now that though inconsistent pleas in the alternative such as the right of ownership and right of easement can be raised, but, where the party has pleaded ownership and has failed, it cannot subsequently turn around and claim that right as an easement by prescription. In the present case, the defendants throughout had been claiming themselves to be owners of the area measuring 0-3 Marlas. Once they had put up this plea of ownership which was not accepted by the learned First Appellate Court, they could not acquire easementary right by prescription. The defendants at the most were permitted to use water from the Well and this use was only permissive and not as an open and hostile use over the owner’s property. To prove prescription, it is necessary to establish that it was exercised on some one else’s property and not as an incident of his own ownership of that property. Their Lordships’ of the Hon’ble Supreme Court have held in Chapsibhai Dhanjibhai Dand Vs. Purushotam, AIR 1971 Supreme Court 1878 that to establish a prescriptive acquisition of a right the party must prove that he was exercising on a property treating it as someone else’s property. Their Lordships of the Hon’ble Supreme Court have held as under: “Ch. IV of the Act deals with the disturbance of easements and s. 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 6 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 v. Maniklal (1), it was held that an easement by prescription under ss. 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, hecannot 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 7 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) I.L.R. 1946 Bom. 184 (F.B.) 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 8 dominant tenement exercising those rights over a servient tenement of another.” This judgment was cited before the learned District Judge, Una during the course of the hearing of the appeal and he has taken note of the same but has not correctly appreciated the ratio of the judgment. In fact, the judgment cited above supports the contention of the plaintiffs. In view of the observations made hereinabove, this regular second appeal is allowed. The judgments and decrees passed by both the learned Courts below are set aside. The suit filed by the plaintiff is decreed and it is declared that the defendants have no right, title or interest over the site of the cylinder (Mahal Chah) measuring 0-3 Marlas. The defendants are further restrained by way of permanent injunction from encroaching upon or raising any construction over the area falling under the cylinder (Mahal Chah). The plaintiffs are entitled to use the land measuring 0-3 Marlas being absolute owners of the same. No costs. (Rajiv Sharma), J. December 29, 2008. (cr)