Case ID: 2955

Judgment:
' 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. India/71 338 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 No.	94 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 1/2 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 the.possession 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 the:.judgment 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 neither	covered. 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 drain	theBench 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 108	(d) 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 Maki	(1) 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 Co.(4) 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) I.L.R. (2) (3) (4) 56 Bom. L.R.61 342 by section 108(j) of the 	 did not mean that they were also heritable. In two of its decisions	 Runge Lail Lobes vs Wilson(1) and Promada Nath Roy vs section Chowdhry(2) 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 Javerlial(3). On the other hand in Lekhraj Roy vs Kunhya Singh(4) 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 case(6) 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) [1899]I.L.R.26 Cal.204.(2) 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 Press.(4). 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. L.R. 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 Rehim(1) 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) (2)[1962] 3 S.C.R. 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	 i.e.	 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	 i.e.	 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 Press(1) 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 108(d) 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 7(a) of the plaint, however,used 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 8(a)	 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 Saran(1) 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	 Karachi(2). But in Ambaram vs Budhalal(3) 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) I.L.R. [1938] All. (2) A.T.R. 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) I.L.R. 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 Stores(1). 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	 i.e.	 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. V.P.S. 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 108(d) 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 L.R. 4 I.A. 223 Vaman Shripad vs Maki	 I.L.R. 	 Donkangonda vs Ravanshivappa	 	 Bavasaheb vs West Patent Co. 56 Bom. L.R. 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 108(d) 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 the	occupation 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	 I.L.R. [1946] Boni. 184 (F.B.)	 approved Colls vs Home and Colonial Stores	 ; 	 applied [The question	whether under sections 4.and	12 of the	 Easement Acta lessee can acquire a right to light and air as against the owner	 left open] [349A]