JUDGMENT
L. Manoharan, J.
1. Plaintiff is the appellant. Suit was for declaration of easement right and for consequential mandatory injunction.
2. The facts in brief are as follows:–
Anjilichal, a tributary of Moovattupuzha river runs east to west on the south of the property that belongs to the first defendant. The properties situated on the north of the same belongs to defendants 2 to 6. Moovattupupzha river is on the west. According to the plaintiff a canal from the said Anjilichal runs towards north through the property of first defendant and second defendants, proceeds further north touching the eastern side of the property that belongs to defendants 3 and 5; then it goes further north touching the western side of the plaint schedule item No. I that belongs to the plaintiff and reaches its north-western corner. Plaintiff alleged he and his predecessors were using the canal from ancient time as of right for the purpose of irrigation and also for taking manure to his property. Plaint schedule item No. 1 and other properties are paddy fields. The land now in the possession of the 1st defendant ordinally was government land. Plaintiff alleged, after obtaining assignment in his favour the 1st defendant filled up the canal at its mouth from where it started north from the Anilichal and obstructed the user by himself and other defendants. According to the plaintiff, there is no other source of water for irrigation or any other access to his property. He alleged, the panchayat to which he complained with respect to the filling up, though tried for a settlement, the same did not materialise. Therefore he moved the R.D.O.
3. First defendant denied the allegation that he filled up the canal. According to him for the last over 25 years, there is no such canal portion in his property. He also denied the claim of the plaintiff that he was using the same for irrigation. Defendants 2 to 6 in a joint written statement supported the plaintiff.
4. Trial court decreed the suit; but the lower appellate Court reversed the judgment of the trial court. The lower appellate court was of the view that the assignment in favour of the 1st defendant being in 1975, and the suit having been instituted in 1981 the user by the plaintiff fell short of the statutory period of twenty years; and that the plaintiff has no case that he acquired easement by prescription against the Government before the first defendant obtained assignment in his favour. Therefore, the lower appellate court found that the plaintiff was not successful in proving acquisition of right of easement by prescription. The judgment of the lower appellate court states that, it was conceded that there was no proper pleading as to easement of necessity. The lower appellate court negatived the claim of easement of necessity also.
5. The only point urged is that plaintiff has acquired easement by prescription. It was contended, the view of the lower appellate court that the plaintiff is not entitled to easement by prescription as he did not enjoy the same for the period of twenty years after the 1st defendant got assignment from the government is not correct. In paragraphs 5, 6 and 11 of the plaint the plaintiff alleged that from ancient time he and his predecessors were using the canal both for irrigation as well as for transporting manure to the paddy fields. It will be useful to refer to Ext. C-4, the plan submitted by P.W. 3 the Commissioner to understand the location of the Anjilichal, the canal and the property of the first defendant. Plaint schedule item No. 1 is the property that belongs to the plaintiff. He acquired title to the same as per Exts. A1 to A4. Plaint schedule Item No. 2 is the property that belongs to defendants 1 to 6, and item No. 3 is the disputed canal. Apart from giving evidence as PW-1 the plaintiff has also examined PWs. 2 to 6 of whom PWs 3 and 6 are the two Commissioners. PW 2 is the Village Officer. PW 4 is the Proprietor of the paddy field situated on the east of Item No. 1. PW 5 is one of the vendees of the plaintiff. The evidence of PWs 2, 4 and 5 has to be appreciated with due regard to the data submitted by the two commissioners, particularly the data furnished by PW 6. The suit was instituted on 8-9-1981. PW6 the Commissioner visited the property on 14-9-1981. Though Ext. C1 report was prepared without notice to the defendants as the commission was issued emergently the Commissioner was examined as PW 6. He has sworn to features noticed by him. In Ext. Cl the Commissioner states that the southern portion of the canal for about 40 feet was seen filled up. Saplings planted on the filled portion had not taken roots. According to him they were planted only few days before his visit. PW 3, the other Commissioner prepared Ext. C4 plan and Ext. C3 mahazar which also give the location and details of the canal and the other properties. Ext. C4 plan shows that there is canal up to the northern boundary of 1st defendant’s property. Thus between the Anjilichal on the south and the portion of canal on the north is the defendant’s property, and the southern portion of the canal within the 1st defendant’s property was seen to have been filled up.
6. PW-2 the Village Officer said that while he was the Village Officer the property in the possession of 1st defendant was assigned to him. He would swear that, at that time there was a canal; but in 1981 he noticed the canal within that property was filled up.
7. PW-4 has sworn that the canal was there for the last over 45 years and that the same was filled by the 1st defendant. PW 5 also supported the version of the other witnesses as to the existence of the canal. PW 1 has sworn that he and others were using the canal for the purpose of irrigation and for transporting manure. In appreciating the evidence of PWs 1, 2, 4 and 5 the fact that properties adjacent to the canal are paddy fields is of importance for that would probabilise the claim of user. The very nature of the adjacent properties and the location of Anjilichal would emphatically support the testimony of the said witnesses. In this connection, it is not of little importance to note that the plaintiff moved the R.D.O. complaining that the first defendant has filled up the canal. Ext. A7 is the copy of the conditional order issued by the Sub-Divisional Magistrate under Section 133(1) of the Cr. P.C. to the first defendant to remove the obstruction. The same refers to the petition filed by the plaintiff on 20-1-1981. The conduct of the plaintiff also is consistent with his case that immediately after canal was filled up, he took steps to abate the same. The plaintiffs evidence attains more probability than that of DW 2, the defendant. Even in the written statement the 1st defendant would admit the existence of the canal up to the north of his property. Ext. C4 also shows the same. The data furnished by the two commissioners and the testimony of the independent witness would support the plaintiffs case that in fact the canal situated on the west of the plaintiff’s property reached up to the Anjilichal at the South and that the 1st defendant filled up the portion of canal in his property.
8. Plaintiffs case is that he and his predecessors were layng the canal from ancient time. As has already noted PW-4 has sworn that the canal was there for the last 45 years. As per Section 15 of the Indian Easements Act, 1882 (for short the Act) such user should be for 20 years, and accordingly to the last clause of the said Section if the servient tenement belongs to the Government such user should be for 30 years. According to the 1st defendant, the plaintiff is not successful in proving that he enjoyed the easement for 20 years ending within two years of the institution of the suit. The point urged is, since the first defendant obtained assignment only in 1975 and the suit was instituted in 1981, within 20 years of the assignment in favour of 1st defendant the plaintiff could not acquire easement by prescription as he did not enjoy the easement for the statutory period of 20 years. According to the 1st defendant the period of enjoyment while the property was government land cannot be taken into account for computing enjoyment for 20 years. In this connection it is pointed out that the plaintiff has no case that he has prescribed against the Government for the easement right. In short the contention is that the plaintiff cannot tack on the period of user before the assignment in favour of the first defendant for satisfying the statutory requirement of enjoyment for 20 years. It is now necessary in the context to read the last clause of Section 15 of the Act:
“When the property over which a right is claimed under this Section belongs to Government, this Section shall be read as if for the words “twenty years” the words “thirty years” were substituted”.
Thus where the servient tenement belongs to the government the period of enjoyment should be 30 years for acquiring right of easement by prescription.
9. In the decision in Srinivasa v. Ranganna, AIR 1918 Madras 120. a Division Bench of the Madras High Court held that while a party was in enjoyment of an easement as against Government and the latter transfers the property to a private party, the person claiming it must prescribe for 20 years’ enjoyment against the transferee after the transfer. In that case the plaintiff was in enjoyment of the easement for 40 years when the Government assigned the land to the defendant. As Section 15 stood then, the period of enjoyment had to be 60 years when the land belonged to the government. At the institution of the suit the plaintiff did not complete 20 years’ user from the date of such assignment. The Court observed :
“We think the words “belongs to Government” in the last paragraph of Section 15, must refer, not to the time of suit, but to the time during which the easement is enjoyed. An easement can only be acquired by 20 years’ enjoyment against a private person or by 60 years’ enjoyment against Government. Here neither condition is satisfied”.
Therefore the plaintiffs claim of acquisition by prescription was not accepted. But in the decision in Ram Prasad v. Lalit Kishore, AIR 1942 All 405, a single Judge of the Allahabad high Court held that, once the plaitiff established that he had exercised his rights of easement against the predecessor-in-interest of the defendant whether that predecessor-in-interest was the Government or not, his rights at the time when the same is claimed in a suit against a private person would become absolute since the private person could not claim the privilege which the government under law has. Srinivasa’s case, AIR 1918 Madras 120 was not followed. A Division Bench of the Allahabad High Court in a later decision, Lalit Kishore v. Ram Prasad, AIR 1943 All 362, reversed the decision in Ram Prasad’s case, AIR 1942 All 405, agreeing with the view taken by the Madras High Court in Srinivasa’s case, AIR 1918 Madras 120. As to the effect of the assignment of servient tenement by the Government it is observed at page 366 of Lalit Kishore’s case :
“In my opinion a person claiming on easement against a transferee from the government would have an option. He could either base his claim upon user for a period of 60 years against the Government and the transferee, as such, of the Government or, if he so preferred, he could ignore the period of prescription against the Government had based his claim entirely upon user for a period of 20 years while the property was in the possession of the transferees,”
10. A Division Bench of the Lahore High Court in Saya Ram Das v. The Lahore Electric Supply Company, ILR (1943) Lah 129 : (AIR 1942 Lahore 124), held that an easement over a servient tenement, first belonging to Government and then transferred to a private individual can be acquired by user for twenty years only and the period of user against Government can be tacked on. Their Lordships held that, the mere fact that the Government was the previous owner cannot require that user for sixty years (now 30 years) even against private individual should be proved. It was held “belongs to the Government” in the last clause of Section 15 of the Act would mean that the servient tenement at the time of institution of the suit should belong to the Government for the application of the longer period, if at the time of the institution of the suit, the servient tenement has passed from the hands of the Government to a private individual and the plaintiff had enjoyed the easement for a period of 20 years before the institution of the suit, he should acquire easement by prescription. The decision in K. Nagappa v. Babu Achari, AIR 1962 Mysore 179 also it is held: if the servient tenament did not belong to the Government at the time of the institution of the suit the plaintiff need not prove user for the longer period of 30 years. It is also held where easement by prescription is claimed over property which previously belonged to government and was assigned to private person, the claimant can tack on the previous user against the government with his user after the assignment to private person for establishing user for 20 years ending within two years next before the institution of the suit. Thus, the decisions are not uniform as to the effect of assignment of the serveint tenement to private individual which previously belonged to the Government.
11. “Belongs to Government” in the last clause of Section 15 of the Act would clearly indicate that the land must belong to the Government when the right is claimed in a suit for the application of longer period of 30 years. When the provision is thus clear, there would be no justification to give a different meaning by interpretative device to extent the privilege exclusively available to the Government to a private parts to whom the Government has assigned the said land. On assignment the interest of the Government is transferred to the assignee, and thereafter the property neither can have the character of government land nor can have the privileges of government land. Thus if at the institution of the suit the servient tenement belonged to a private individual the period of user to acquire easement by prescription is twenty years ending within two years immediately before the institution of the suit even though the predecessor-in-interest of the servient owner was the government. He can tack on the enjoyment while the servient tenement belonged to the government for the said purpose. In Srinivasan’s case, AIR 1918 Madras 120, the words “belongs to government” in Section 15 of the Act is interpreted to denote the period during which the easement was enjoyed. The reason given is :
“If we adopt the view contended for by the appellant, we should have to hold that the transfer of the servient tenement by a private owner to Government would have the effect of destroying any easement right, which had been legitimately acquired by 20 years’ enjoyment but which had not been enjoyed for the period of 60 years required as against Government”.
In considering this aspect as to when the right of easement by prescription becomes an indefeasible right is of importance. No length of enjoyment per se can make a claim of easement absolute. In the decision in Colls v. Home and Colonial Stores Ltd., (1904) AC 179, it is held :
“Unless and until the claim or matter is thus brought into question, no absolute or indefeasible right can arise under the Act, there is what has been described as an inchoate right. The owner of the dominant tenement, after twenty years’ uninterrupted enjoyment is in a position to avail himself of the Act if his claim is brought into question. But in the meantime, however long the enjoyment may have been, his right is just the same. No title is yet acquired under the Act.”
Adverting to the said decision, in Saya Ram Das’s case, ILR (1943) Lah 129 : (AIR 1942 Lahore 124), it is observed at page 133 (of ILR 1743 Lah) : (at p. 125 of AIR). “In Colls v. Home and Colonial Stores Limited the House of Lords have held that an easement is acquired by the suit being brought and twenty years prior user as an easement being proved. Thus an easement differs in some respects from other rights in that the mere efflux of time does not create an easement. It is the action brought which turns the right into an indefeasible right”. In that view, after 20 years user if the servient tenement is transferred to the Government no vested right would be destroyed thereby. It is only on being brought into contest in a suit and the right is affirmed that the same matures into an indefeasible right. If the twenty years user is brought into contest and is affirmed, the same would not be affected by the subsequent transfer of the servient tenement to the government. In such circumstances, with respect I am unable to agree with the view stated in the decision in Srinivasa’s case, AIR 1918 Madras 120 and in lalit Kishore’s case, AIR 1943 All 362. The decisions in Saya Ram Das’s case, ILR (1943) Lah 129 : (AIR 1942 Lahore 124) and Nagappa’s case, AIR 1962 Mysore 179, State the correct position of law.
12. Thus the plaintiff is entitled to tack on his enjoyment while the servient tenement belonged to the Government along with the period of enjoyment after the assignment to the first defendant. As has already seen, the evidence of PW 1 to PW 6 , particularly that of PW 4 and the data furnished by Exts. C1 to C4 would prove the case of the plaintiff as regards easement by prescription. Therefore, the plaintiff is entitled to the decision of easement right and the mandatory injunction. The judgment and decree of the lower appellate Court is liable to be set aside and that of the trial Court has to be restored. Consequently the appeal has to be allowed.
In the result the appeal is allowed, but in the circumstance, there will be no order as to costs.