JUDGMENT
B.K. Somasekhara, J.
1. These two Appeals are directed against the common Judgment in AS. Nos. 34/78 and 35/78 dated 3-8-1987 of the learned Subordinate Judge, Tanuku. They were the matters before the learned Subordinate Judge arising out of the common Judgment of the learned Principal District Munsif, Tanuku in OS. Nos. 341/68 and 195/74 dated 8-3-1978. OS. 341/68 was for permanent injunction restraining the defendants from interfering with the raising of the height of 14″ wall and constructed to the west of FG wall and the raising of the height of the old wall and the newly added wall as consolidated in the line GH as shown in the plaint plan. OS. No. 195/74 was the suit by the same plaintiff for a mandatory injunction directing the defendants to cut away the tree together with its roots and alternatively to declare that the wall HJV shown in the plaint plan belongs to the plaintiff and for a consequential relief of permanent injunction restraining the defendants from interfering with the plaintiff in cutting away the said tree. The suits were decreed as follows with the observations:
“OS. No. 341 /68: The suit is decreed in favour of the plaintiff and against the defendants for permanent injunction restraining the defendants in any manner of interfering with the raising of the height of 14” wall constructed to the west of FG wall and also with the raising of the newly added wall constructed to the north of GJ wall and in making constructions over the said newly added wall.
OS. No. 195/74: The suit is decreed in favour of the plaintiff against the defendants declaring that the wall HJV except to the width of 10″ south of HJ wall belongs to the plaintiff and the rest of the suit claims are dismissed.”
The appellant herein is the plaintiff and the respondents are the defendants. The plaintiff took up the matters in appeal in both the suits challenging the observations made by the learned Principal District Munsif, Tanuku which were confirmed by the learned Subordinate Judge after hearing both the sides. No other matter decided by the learned Principal District Munsif on other issues was called in challenge by either of the parties. In these appeals also, the plaintiff as the appellant has challenged the observations of the learned
Principal District Munsif confirmed by the learned Subordinate Judge and also the portion of the claim which was disallowed by partly decreeing the suit. These two Appeals involving common questions of facts and law are heard together and are being disposed of by this common Judgment.
2. A brief record of the proved and admitted facts in addition to the findings of the facts and the law considered and decided by both the Courts below would be necessary and useful. The appellant is the plaintiff and the respondents are the defendants. They are inter-related. Their houses are babutting each other with only one wall in between them ABCDEFGHJV as shown in the suit sketch and the Commissioner’s plan Ex.X-2. The building and the structures of the plaintiff are on the northern side whereas that of the defendants are on the southern side. The plaintiff is held to be the owner of the portion of the wall EFGHJV and defendants’ plea of title to the suit wall is rejected. There is no dispute in the suit wall by the defendants except the portion EFGHJ. It is found that the defendants’ building on the southern side has no separate wall. They have a terraced room to the south of EF portion of the wall. The rafters of the terraced room are inserted in the EFGHJ portion of the wall to an extent of 10″. The Kitchen sheds Y1 and Y2 are abutting GJ portion and their rafters are inserted in the disputed portion of the wall. Such constructions of the defendants and rafters inserted in the disputed wall are in existence since 60 years.
3. It it held by both the Courts below that the defendants have perfected their title to the EFGHJ portion of the plaintiff’s wall to the extent of 10″ by adverse possession.
4. In view of the contentions and the counter contentions of the learned Advocates Sri Harinath for the appellant and Sri Ramachandra Raju, for the respondents, these questions of law and points arise for consideration:-
1. Where in a case the title of the plaintiff to the suit wall was denied by the defendants, but accepted to be established, whether the Court could hold that the defendants have perfected their title to the 10″ portion of the wall by adverse possession without a plea of adverse possession in the written statement?
2 With the admitted facts, whether the rights of the defendants over 10″ portion of the disputed wall could be title by adverse possession or by prescription or by easement?
3. (a) Whether the Judgment and Decree of the Courts below are illegal and warrant interference in Second Appeal?
(b) If so, to what extent?
The Learned Advocates have raised many incidental questions of law touching the questions above and which are relevant for determination of the real controversies between the parties in these Appeals. They will be dealt with as and when occasion arises.
5. It is true that this is a case of pure and simple title to the suit wall set up by the plaintiff, denied by the defendants and the Court accepting the case of the plaintiff regarding title to the entire suit wall but holding that the defendants have perfected their title by adverse possession to a portion of the disputed wall to an extent of 10″. The first and serious contention raised by Mr. Harinath, learned Advocate for the appellant is that the defendants were not entitled to have any other benefit of plea or defence like adverse possession or easement etc., when they specifically set up their counter title to the disputed wall and failed. Further more, according to him, the Courts below were totally unjustified in traversing beyond the pleading to record a finding that the defendants have perfected their title to the disputed portion of the wall as above by adverse possession. Mr. Harinath has gone by the strict rules of pleading, but wants an opportunity to meet the case of the defendants in the absence of a pleading and also settled law in this regard. In particular, he has depended upon Arundati Mishra v. Sriramacharitra Pandey, (D.N.) in support of his contention to the effect that pleas of title and adverse possession are mutually conflicting with each other and unless one of the plea-are renounced the defendants cannot be permitted to fall back upon the alternative defence of perfecting title by adverse possession. Mr. Ramachandra Raju, the learned Counsel for the respondents contends that although no such specific defence is taken, when the title of the plaintiff was specifically denied by giving details as to how such a title was with the defendants, failure to raise a specific plea as such may not be fatal to the case of defendants. He therefore contends that with the materials on record coming up in accordance with law in the form of evidence depended upon by the Courts below, this Court will be able to decide the rights of the parties. Mr. Harinath, learned Counsel, is not totally unjustified in depending upon such a contention supported by the precedent of the Hon’ble Supreme Court. A careful perusal of the ruling shows that no such absolute rule was laid down. While referring to Kumar v. Mahabir Prasad, it was pointed out therein that it is open to the party to raise mutually inconsistent pleas and if the relief could be founded on the alternative plea, it could be granted. If the facts are admitted in the written statement, relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were taken. The rule discharged as such appears to be on the facts and circumstances of that case. In para 4, it is concluded as hereunder:-
“The question in this case is whether the plea of adverse possession sought to be set up by the respondent can be permitted to be raised. Pleas based on title and adverse possession are mutually inconsistent, and the latter does (not) operate until the former is renounced. It is his own case that he came into the possession of the suit house in his own right and remained in possession as owner. The Appellant is only a benamidar. Therefore his plea is based on his own title. He never denounced his title nor admitted the plea of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant’s acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised in the written statement. No explanation for the belated plea was given……”
Therefore, a proper understanding of the precedent and the law laid down therein is that in case of defendants setting up counter title, alternative plea of adverse possession or any other plea is available. But if no alternative plea is raised or belatedly raised, then the question to be decided by the Court is, whether such a plea can be allowed either by amendment or by other reasons. It cannot be taken from such a pronouncement that an absolute rule, is laid down therein that at no cost alternative pleas can be considered if other circumstances due to settled law are available. To fortify this legal position, we have catena of the pronouncements of the Supreme Court itself.
6. The pith and core of the concept of interpretation of pleading in all the precedents have been discharged in the background of the fundamentals in the relevant provisions of CPC. Rules 2,6,8,9 and 10 of Order VI mandatorily imposes on the parties as to what they are bound to state, and all other facts or particulars to be stated are either desirable or useful to settle the issues and to try them to render proper decision. It is Rule 2 of Order VI of Code of Civil Procedure which mandates that every pleading shall contain and contain only a statement in concise form of material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 6 of Order VI contemplates the condition precedent to plead the performance of such a condition precedent etc., etc., to be complied with in the nature of the case. Similarly Rule 8 of Order VI mandates that where there is a plea of contract, it must be specifically denied by the opposite party. According to Rule 10 of Order VI, the plea of malice, fraudulent intention, knowledge or condition of the mind etc., are mandatorily to be stated. Wherever ,a notice is mandatory, there must be a specific plea in the plaint according to Rule 11 of Order VI. There is no other mandatory requirement in regard to pleas or defence in the pleading. They may depend upon facts and circumstances of each case, wherein the Court may give directions to the parties to supplement the pleadings to render full and effective justice. That is why Order VI, Rule 17 of Code of Civil Procedure empowers the Court to amend the pleading even without the parties desiring or initiating. A simple and bare reading of the entire Order VI of Code of Civil Procedure shows that the pleas like adverse possession, easement etc., need not be specifically pleaded. It is also to be made very clear in view of, Rule 2 of Order VI and other rules supra of Code of Civil Procedure that the parties will bring all the necessary facts on record which generates law either in pure and simple manner or mixed questions of law and facts. It is for the Courts to evolve such generated results. Possibly the parties and the learned Advocates representing them will assist the Court in doing that. That is how the Hon’ble Supreme Court has dealt with the interpretation of pleading in clear expressions any number of times. In Madan Gopal Kanodia v. Mamraj Maniram, it was pointed out that the Courts should not construe the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial ground. In K.C. Kapoor v. Smt. Radhika Devi, it was cautioned that pleadings are not to be construed in a hyper-technical manner; what is to be seen is whether the allegations gave sufficient notice to the plaintiffs of what case they had to meet. In S.B. Noronah v. Prem Kumari, a note of guideline was struck in the expressions-
“Pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleadings are construed. Law should not be stultified by Courts by sanctifying little omissions as fatal flaws. Parties win or lose on substantial questions, “not on “technical tortures”, and Courts cannot be abettors”
Broadly stated in this background, pleadings should receive a liberal construction, as noted in Ram Sarup Gupta v. Bishun Narain Inter College, and Smt. Rajbir Kaur v. S. Chokosiri & Co., . There may be many instances wherein the pleadings are incomplete, but during trial the parties place many materials before the Court either directly touching the actual controversies between them or incidentally touching upon such questions, where the Court could draw inferences and render justice. That is how in Bhim Singh v. Kan Singh, it was held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. That is how even by invoking its powers under Order VII Rule (7) of C.P.C, the Court will mould the relief taking the subsequent events as judicial notice, however, without violating the fundamental principles of the pleading, natural justice and justice in accordance with law.
7. Now if we apply the above principles to the facts and circumstances of this case, the true dispute between the parties is about a wall in between the two buildings upon which the plaintiff has title, the defendants set up their own title and failed, they explained how did they acquire their title, incidentally stating the state of affairs as existing since long including their projections into the suit wall by rafters etc. They are to be found in paras 4 to 8 of the written statement. Such a defence has been found to be true from the evidence. That totally conforms to the requirements of Order VI, Rule 2 of Code of Civil Procedure. With the evidence, the Courts below were able to draw inferences rightly or wrongly which we are still to examine. If the draftsman of the written statement had used the technical legal expressions like ‘adverse possession’ or ‘easement’, there was no difficulty. It may not be forgotten that in India even now the law is being administered in most of the Courts in English language which is totally alien to majority of the persons involved in the litigation and being administered to the large section of the people of India who are known to be illiterate in general and specially illiterate in law. For the failure of the draftsman the litigants cannot be punished. Therefore, as guided by the settled legal position, it is for the Court to consider whether on the basis of such facts pleaded or proved law if any can be operated upon them to render full justice. However, the prejudice to one or other parties for failure to plead will be considered always. If the facts themselves were absent in this case regarding the existence of the rafters and other portions of the adjacent building either on the suit wall or adjacent to it, then it was not open to the Court to draw inferences of law and to apply the rule of adverse possession or easement or prescription etc., as the case may be. Therefore, in this case it is still open to consider whether the finding of the Courts below, that the defendants have perfected their title by adverse possession to a portion of the suit wall, is correct or not. Mr. Harinath, learned Counsel for the appellant is no doubt right in contending that the defendants cannot be permitted to set up conflicting pleas so as to prejudice the case of the plaintiff. It equally applies to the plaintiff as against the defendants. His reliance on a pronouncement of our Court in Yarlagadda Venkanna Chowdary (dead) v. Daggubati Lakshminarayana and Ors., in this regard is not totally unjustified. But the facts and circumstances of that case may not be mixed up with the facts and circumstances of this case to operate the general principles of law enunciated in a precedent. When the defendants failed to prove title to the suit land, naturally the plaintiff’s title was rightly confirmed by the Courts below.
8. Apart from what is stated above, it is apparent that the plaintiff pleaded his title to the disputed wall and at the same time defendants, while denying it set up their own title. Therefore, it was a clear case of title. There, possibly, we are to draw fundamentals from the science of law viz., Jurisprudence. Mr. Harinath, learned Counsel for the appellant-plaintiff is not able to convince this Court that the concept of title is confined, to absolute pure and simple title. In law, ‘title’ means a bundle of rights. There may be number of types of rights which may fructify into title. For instance, even perfection of title by adverse possession is one of the species of title. Therefore, if the title is in question if the materials of the defendants, either by particulars given in the written statement with or without specific plea of adverse possession, this Court will be still examining whether the title as established is pure and simple or by adverse possession or by prescription or easement etc etc etc., Even there, there is no bar on the part of the Court in dealing with the question of title directly or incidentally with the materials on record and that has been done by the Courts below. It may not be forgotten that ‘right of easement’ is also a title, may be limited or restrictive or prohibitive. Therefore, the contention of Mr. Harinath, learned Advocate, that in the absence of specific plea of adverse possession or easement etc., the Courts are debarred from considering such questions, cannot be accepted.
9. As consistently found by the Courts below the plaintiff is the owner of the suit wall and the defendants’ building has taken a support of it by inserting the rafters into a portion of the wall and by constructing some portions in their building taking support of the plaintiff’s wall or by using it in certain manner as disclosed from the evidence. Beyond this the defendants have not established any other right. Such a user by the defendants with reference to the plaintiff’s wall viz., the suit wall has been there continuously for a period of 60 years, on the date of the suit. In other words, the building or structures of the defendants have taken the support of the suit wall for a long period. It is not clear from the findings or the materials of the defendants that any such right at any time was specifically exposed or notified to the plaintiff positively or affirmatively. Admittedly the parties are closely related and such State of affairs appears to be in existence since the time of their ancestors. It is nobody’s case nor there is evidence to show that the plaintiff or his ancestors in title or predecessors objected or opposed for such a user by the defendants or their ancestors or predecessors in title. It is not in evidence nor there is any finding that the plaintiff exercised any diligence of express inspection or implied examination of the state of affairs on the wall, if not on the other side of the wall. Such construction of the defendants apart from inserting the rafters of the roof into the wall of the plaintiff could not have happened over-night, particularly the parties being related, perhaps at the relevant time if had been done where such a user if actually intended to be opposed, it was not difficult either verbally or in writing. There is no such material. Either by concession or otherwise, the state of affairs of the defendants’ user of the suit wall has come to stay for a long period viz., 60 years. With these facts and circumstances, we are now to examine the correct and true legal position which may be operated upon the same.
10. Mr. Harinath, learned Counsel for the appellant with all sincerity and erudition has tried to demonstrate that even accepting all the implications of the state of affairs which are in favour of the defendants if at all they have any right, in the suit wall it may be the right of easement of support to the building or the portion of the wall where rafters are rested and nothing beyond that. According to him the defendants cannot be taken to have established their right or title to 10″ portion of the wall either by adverse possession or by any other right. In this regard, he has depended upon the pronouncements in Chotalal v. Manilal, (1913) 37 Bombay 491, Mulia Bhana v. Sundar Dana, AIR 1914 Bombay 243, Chaganlal v. Hemchand, AIR 1932 Bombay 224, Sundara Sastrial v. Govinda Mandarayan, 32 Madras 528, Tilok Chand Nathmal v. Dhundiraj Madhava Rao, AIR 1957 Nagpur 2, Smt. Sushila Devi v. Smt. Yasoda Bai, 1981 AU.L.J. 263, Ramakrishna Ayyar v. Ramanatha Patter, AIR 1929 Madras 819. , Mst. Umarao Kanwar v. Mst. Ram Pyari, , Kasibai Kalidas v. Vallarbhai Wagjibhai, AIR 1922 Bombay 83. As against this, Mr. Ramachandra Raju, learned counsel for the respondents has depended upon State of Indoor v. Visheshwar Battacharya and Ors., AIR 1934 All. 1054, Rathinavelu Mudaliar v. Koladavelu Pillai, (1906) 29 Madras 511, Bahadurwal Gurumukhrai Nemani v. Mohanlal Surchand and Ors., AIR 1925 Bombay 335. The learned Counsel for the Appellant also depended upon Pazhaniandi Bakthar v. Co-op. Urban Bank Limited, Kutnbakonam, . Out of the above decisions, the courts below have depended upon some of them. Mr. Ramachandra Raju, as a whole supporting the concurrent Judgments of the Courts below, has contended that the plaintiff having suffered the defendants’ user of the suit wall to the extent stated above (10″) should be held to have lost his title to that extent in view of the latter perfecting their title by adverse possession to such an extent, because such state of affairs have been there continuously and openly for more than 12 years. Mr. Harinath, learned Counsel for the appellant stoutly opposes this proposition.
11. To start with, we can deal with the precedents which support the findings of the Courts below and also the contention of the learned counsel for the respondents since the cases are disposed of on that basis. In State of Indoor case19, the defendants built a three storeyed verandah projecting over the land of the plaintiff and further opened some windows, which were said to invade the privacy of the plaintiff’s house. The trial Court found that the verandahs were constructed more than 12 years, but less than 20 years ago and as it was also held that the verandah constituted a dispossession of the plaintiff, it followed that the defendant had matured his title by this adverse’ possession and accordingly the suits were dismissed. While following the view of the Bombay High Court in Chotalal’s case (10 supra) and disagreeing with the other decisions in Mulia Bhana’s case (11 supra), Kashibhai Kalidas and Chaganlal’s case (12 supra), it was held that since the space above the land and below the land is one of the benefits arising out of the ownership of that land, it is part of the immoveable property of the owner and any trespass upon it will be an act of adverse possession and therefore it was held that the space above the land is itself immoveable property and as the owner of the soil is the owner of the space above it and as there can be no ownership without property, it follows that the space above the land is property, whether moveable or immoveable and therefore it was held that the defendants therein established their title by adverse possession. The view of the Bombay High Court in the rulings supra was not followed saying that it was hot binding on the Court. The view of the Madras High Court in Rathinavelu Mudaliar’s case (20 supra) was followed by the Allahabad High Court in the case of State of Indoor (19 supra). In the case of Bahadurwal Gurumukhrai (21 supra), it was held that in such a situation the party exerting such a user would acquire the right by adverse possession. By following Mohanlal Jechand v. Amratlal Bechardas, (1878) 3 Bombay 174 and Ranchod Shamji v. Abdulabai Mithabai, (1904) 28 Bombay 428 such a view was taken. It is true that except in the case of Bahadurwal Gurumukkrai (21 supra), all other decisions of Bombay High Court in the rulings 10,11,18 and 12 stated supra, it was consistently held that in such a situation the party establishing such a user would only get the right of easement and not perfection of title by adverse possession. Sundara Sastriyal v. Govinda Mandarayan (13 supra) fully supports Mr. Harinath, learned Counsel for the appellant, in regard to his contention that only the right of easement will acquire to such a user and not title by adverse possession. It was a case wherein two adjoining houses belonging to a single owner were sold to two different persons A and B and the partition wall between the two houses which is included in the sale to A, is at the time of sale, used as a support for the rafters of the house sold to B, it was held that the wall passes to A subject to such easementary right. It was also held that such a user do not amount to dispossession or exclusive possession or control. In Tilokchand Nathwal v. Dhundiraj Madhava Rao (14 supra), the defendants had started constructing a second storey to their house and they built a new wall just touching the plaintiffs’ wall and thus it engulfed the belt and a portion of the wall rested on the tiles of the southern eave of the plaintiffs’ eastern gallery on a space measuring 11/2″ x 1″ and the Division Bench referring to the observations and discussions of the learned author Joshi in his Easements and Licenses (2nd Edition of 1948 at pages 399 and 400) observed and adopted the view as follows:-
“Where a right to occupy the space of another owner by means of a projection has been acquired, the claimant of the right gets a full title to the space under his direct occupation without his having any claim on anything else beyond. Thus acquisition of a right to project beams cannot extend beyond the protrusion of the beams themselves. There can be no title to the space either above or below the beams.”
It was held that they had acquired no right above or below the intrusion but only the portion where the support was taken. In Pazaniandi Bakthar (22 supra) case, referring to Rathinavelu Mudaliar’s case (20 supra) and Tilokchand’s case (16 supra), it was held that the adjacent owner is entitled to build above and below a projection where the person from whose property the structure projected has acquired an easermentary right by prescription to such projection, but has not acquired any such right to the space below or above it. The question of the acquisition of the right by perfection of title by adverse possession was not considered in this ruling. However, taking the logical conclusion in the pronouncement, it can be taken that it supports the view that in such a situation only the right of easement is acquired, but not perfection of title by adverse possession and if at all any right is established it is only to the portion of the property wherein such a user has been established and nothing beyond that as it can be neither above the projection or below the projection. In Smt. Sushila Devi v. Smt. Yasoda Bai (15 supra) it was held that a projection abutting from plaintiff’s house may be in the nature of an easement and it would be obliterating the distinction between a dominant heritage and a servient heritage if all owners of a projection are held to be in possession over the land beneath the projection and the correct legal position is that a person who is an owner of a piece of land is deemed to be the owner of the sub-soil upto the middle of the earth and upto the entire column of air extending upwards in the hemisphere. The reverse of this proposition has never been recognised by law. In this ruling none of the rulings quoted supra are referred to or considered. In Mst. Umarao Kanwar v. Mst. Rampyari (17 supra), as rightly pointed out by Mr. Harinath, learned Counsel for the appellant, it has been held that where the plaintiff’s chhaja had projected over the adjoining land belonging to the defendant for a period of more than 20 years, the plaintiff acquired his right only to that much column of the air which is occupied by his projection as the column of the air below the projection and also above the projection still belongs to the defendant and if the defendant constructs his wall below this projection, the plaintiff can have no right to object to it. Similarly, if the defendant makes some construction above the projection in a manner that he takes no support from the plaintiff’s projection or does not raise any wall thereon, he is certainly entitled to make those constructions, following the decisions in 17 and 21 supra.
12. Now we have three views one of Allahabad, Bombay and Madras. There also some High Courts have conflicted in their own views, sometimes even without reference to the earlier rulings. Broadly stated, the simple question involved in such a situation was whether the encroachment or the construction by over-hanging, by support or otherwise by the adjacent owner or the possessor of a building was for a continuous period and longer than 12 years: etc., amounted to encroachment on the very sub-soil below the encroachment or the space above the encroachment to ripen into perfection of title by adverse possession or merely a right of easement. Two broad views were taken in such a situation one in favour of the former and second in favour of the latter. In Subbarayalu v. Subbaramaiah, (1956) An.W.R. 32. (NRC) our own High Court on facts held that the defendants who were discharging rain water into the neighbour’s lane through eaves resting on easement-holder’s wall, while construing whether such easement right also carries with it an accessory easement or right to enter on the neighbour’s lane to effect repairs to the wall, it was held in the affirmative. This pronouncement may not be useful to the facts and circumstances of this case. At the same time, in the summary record of the decision, we are not able to make out the ratio or the ratio decidenti which was actually laid down to operate either as a binding precedent or as a persuasive precedent to apply for the facts and circumstances of this case. This Court now has to deal with the question of law in controversy guided by the precedents above and also the facts and circumstances of the case and also by examining the correct legal position in this regard.
13. At the cost of luxury for the utility of all the concerned in legal field this Court is inevitably going into the fundamentals. As already pointed out, the concept of ‘title’ has very large implications and results. Even the Transfer of Property Act and the Specific Relief Act dealing with the transfer of movable and immovable property to operate as Transfer of Property and no statute has defined what is ‘title’. It is still within the region of Jurisprudence or the precedents. Title is said to be a legal right, that is to say, certain facts or events by reason of which the right has become vested in its owner. These are the conditions of a legal right ripening into title:
1. It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence.
2. It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of duty, or as the person of incidence.
3. It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right.
4. The act or omission relates to something (in the widest sense of that word), which may be termed the object or subject matter of the right.
5. Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner.
(Page 265 of Salmond on Jurisprudence 11th Edition of 1957)
Within this concept any type of legal right can be incorporated. To exclude perfection of title by adverse possession, easementary right, prescriptive right etc., from this concept would be illogical if not illegal. If you have a right and if it is legal, then the law says you have the title, in the sense, with the corresponding duty on the adversary to submit to it. If the defendants in this case establish any type of right let alone absolute, pure and simple right, that should be termed as title within the concept subject” to the duty on the part of the plaintiff to obey it and submit to it. But the classification of right and its definition will put the parties to the rights and duties for the purpose of obligations or liabilities. To restrict it either to the particular space or portion of the property or below or above etc., would be too conservative idea of the true implications of law. Therefore, most of the precedents stated above dealing with the question cannot be taken to have decided the implications in its true sense of the term. They are to be taken as dealing with the cases with reference to the facts and circumstances established or presuming incidental question to declare the law. To conclude, perfection of title by adverse possession, establishment of right by easement or by prescription, would be within the meaning of the word ‘title’ as stated above. The emphasis is also on the ground of the pleadings. In that regard the defendants stated ‘ that they have title to the suit wall portion of which may be due to several reasons, not specifically incorporated in the expressions like adverse possession, easementary right or prescription. To repeat again, the context is to state that the Courts below were not wrong in dealing with the matter in such a fashion although the correctness of such findings is still to be considered.
14. Since we are dealing with the question whether the right of the defendants in this case is perfection of title by adverse possession or by easement or by prescription, we have to deal with them separately. The defendants are totally out of the concept of adverse possession to establish the title to the portion of the suit wall for various reasons. In the first place, the defendants did not plead perfection of title by adverse possession to prove all the ingredients. The three ingredients of the doctrine of adverse possession viz., Neck-VI, Neck Clan and Neck precarium (open, continuous and hostile) are not to be found either in the pleading or from the evidence, except that the state of affairs are in existence for a period of 60 years. The Courts below have not dealt with the question of adverse possession in its correct implications. Just because a person has been in possession of the property belonging to the other for a period of 12 years, that will not ripen into adverse possession. As the doctrine itself expresses, it must be adverse, open and hostile. The knowledge of the plaintiff in this case by implication is that his wall is being used by the otherside to insert rafters or to take support and nothing beyond that. Adversity or hostility is a question of fact to be proved in each case. No other circumstance has been pleaded or proved that there is any occasion to assert or deny the title or possession by either of the parties ‘ in regard to the suit wall. Therefore, this can never be a case of adverse possession. On the other hand, it was a clear case of the defendants asserting title to the suit wall in their own way. To clear the confusion in regard to adverse possession and title etc., this Court had to deal with the question in Yarlagadda Venkanna Chowdary v. Daggubati Lakshminarayana (9 supra) wherein Mr. Harinath, learned Counsel for the Appellant himself had the occasion to deal with the case and this Presiding Judge in the Court had the opportunity to deal with the question. In that case the defendants had set up clear title to the suit property by being in possession etc., There was no plea of adverse possession. The suit was based on title. The defendants while denying the title of the plaintiffs categorically set up continuance of title with them in the written statement. In such a situation while drawing a lucid distinction between ‘adverse possession’ and ‘prescription’, it was stated as hereunder:-
“The legal and lucid distinction between the doctrines of ‘adverse possession’ and ‘prescription’ appears to be well established. “Adverse possession’ means:
The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor…….
The statute of limitation is the source of title by adverse possession……..
The adverse possession must be actual, continued, visible, notorious, distinct and hostile.”
(Pages 152 and 153 of Bouvier’s Law Dictionary Vol.1, 3rd Revision 1914)
“Adverse possession” is
“that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful onwer’s title viz., trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.”
(Pages 50 and 51 of T.M. Mukherjee’s Law Lexicon Vol.1 1971 Edn.)
“A prescriptive title rests upon a different principle from that of a title arising under the statute of limitations. Prescriptiontpperates as evidence of a grant and confers a positive title (Page 152 of Bouvier’s Law Dictionary supra). The science of law as jurisprudence has a definite meaning and expression in regard to the two doctrines. To understand the same, we must read into:
Prescription may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact. It is of two kinds viz., (1) positive or acquisitive prescription and (2) negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years… Lapse of time therefore, has two opposite effects. In positive prescription it is a title of right, but in negative prescription it is a divestitive fact. Whether it shall operate in the one way or in the other depends on whether it is or is not accompanied by possession. Positive prescription is the investitive operation of lapse of time with possession, while negative prescription is the divestitive operation of lapse of time without possession. Long possession creates rights and long want of possession destroys them. If a person possesses an easement for twenty years without owning it, he begins at the end of that period to own as well as to possess it. Conversely, if a person owns a land for twelve years without possessing it, he ceases on the termination of that period either to own or to possess it. In bom forms of prescription, fact and right, possession and ownership, tend to coincidence. Ex facto oritur jus. If the root of fact is destroyed, the right growing out of it withers and dies in course of time. If the fact is present, the right will in the fullness of time proceed from it.
(Page 435 of Salmond on Jurisprudence 12th Edition by P.J. Fitzgerald).
Moreover in none of the precedents supra, we are able to gather much guidance from the implications of the Easements Act except Section 4 of the Easements Act. When we have eliminated the possibility of the defendant establishing title by adverse possession in this case not merely for want of pleading or proof of ingredients of the same, we are only left with the question whether the defendants have got any other type of right like easement or prescription. In the considered opinion of this Court, when such topics have been codified in Easements Act, (Act 5 of 1882) (for short the Act) unless there are any precedents to interpret the implications of the provisions, we are to deal with them as they have been explained or expressed therein. On a perusal of the relevant provisions of the Act, we do not find any specific, categoric or contextual provision therein to call such a situation as the title or perfection of title by adverse possession. The user of a property by a person belonging to another person in the manner as in the present case has not been classified as one of the right of title or adverse possession. They are still in the region of jurisprudence or in the law of Limitation. Broadly stated and from the preamble of the Act, it deals with the law of Easements and. Licences. All the rights and incidental rights therein are to be understood or explained within the scope of the subject-matter of the enactment viz., Easements and Licences. Section 4 defines ‘Easement’. There is no definition of ‘prescription’ or ‘prescriptive right’. It is only explained or elaborated in Section 15 of the Act. Although ‘easement’ is defined under the provision as a right, barring the illustrations, there is no classification of easements. Broadly stated, the classification is found in public easements and private easements and positive easement and negative easement. The learned author B.B. Katiyar in LAW OF EASEMENTS AND LICENCES has culled out as many as 32 types of easements and further classified them as positive easements and negative easements. (Pages 65 to 71 of B.B. Kaliyar supra) There are also in them j incorporated as qualified easements as one of the species. Therefore, to merely j declare the law in a particular situation either as adverse possession or i easement or prescription would not be within the true implications of law , codified under the Act. They may depend upon the facts and circumstances of each case. Although the acquisition of right by prescription as a whole is a prescriptive right, it is still classified as one of the easements only called as ‘prescriptive easement’. The support can be gathered from Section 15 of the Act incorporating the conditions under which such an easement can be acquired by prescription. The said acquisition of right of easement by prescription are four in number. Under the provision, each of it to ripen, should be proved to have continued for a period of 20 years upto a time within two years next before the institution of the suit where the claim is contested. Therefore, the minimum period is said to extend 18 to 20 years subject to the contest or otherwise. Among them, right to support is item No. 2 in the provisions of Section 15 and it is said to be one of rights of easement by prescription. This is emphasised in view of the fact that it is the right of support of the defendants on the suit wall which is the subject matter and it is being examined to fix the nature of the rights of the defendants as against the plaintiff who is the servient owner whereas the defendants are the dominant owners. In view of the clear definition of ‘easement’ Under Section 4 of the Act, the right of support of the defendants read with Section 15 of the Act could be never but an easement in the first instance and easement by prescription or prescriptive easement in, the second instance. There cannot be any doubt that the defendants’ user of the suit wall for such a long time has ripened into a right to call it title in that sense and not in the ordinary sense and .that right has assumed the character of an easement as of right not as of licence or permission. It is styled as a legal right (Page 55 of B.B. Katiyar’s Law of Easements and Licences). Sometimes the right of support is classified as a negative easement and sometimes as a positive easement. This case appears to be a case of positive easement where the suit wall is used for the support of the building and structures of the defendants for a long time without any interruption. The right of support within the meaning of Section 4 of the Act in this case should be extended to the adjacent building including the wall, viz., adjacent building, if any, belonging to the plaintiff. ‘Easements of support’ with conditions relating to support are restrictions, which are –
(a) in the case of easements conferring rights to have support of the natural right which allows a man to enjoy and dispose of his property according to the ordinary rights of ownership; and
(b) in the case of easements conferring rights to take away support, either of the natural right of support, or of the easement of support.
They are either connected with
(1) the support of building by land; or
(2) the support of buildings by buildings; or
(3) mining operations, in which case they are usually described as easements to let down the surfacte.
(This is a case of items 1 and 2).
(Page 121 of B.B. Katiyar’s Law of Easements and Licences)
In other words, the defendants have taken not only the support of the adjacent land but also the support of the adjacent building including the wall to the extent found by the Courts below. Based on the English rulings the implications of such a right of support as an easement could be understood as hereunder:-
“There is, however, another class of rights though also called easements of support, yet assume the character of affirmative easements. These are the rights which entitle a neighbour to obtain support, as for instance, to his roof from the party-wall of his neighbour, or to build on the roof of his neighbour, and arise either by grant or by prescription. As they are the rights by virtue of which the person of inherence can do and continue to do something, as put rafters on the wall of his neigbour and continue to enjoy the support thereof, they are affirmative easements of support. They have their origin in the trespass on the land of another and, unlike the easements of support for structures built on one’s own land, they do not depend on mere abstinence on the part of the person of incidence.”
(Page 122 of B.B. Katiyar’s Law of Easements and Licences, 11th Edition of 1995).
The following expressions may support the contentions of both the learned Counsel for the appellant and the respondents to the extent possible, subject to the facts and circumstances of this case.
“A claimant may acquire a title to an easement by prescription at the same time during which he is acquiring a title to the dominant tenement by adverse possession. But, generally he cannot acquire simultaneously a title to the servient tenement by adverse possession and to an easement therein by prescription.”
(Page 298 of B.B. Katiyar’s Law of Easements and Licences, Supra).
It must be emphasised that in view of Sections 25 and 26 of the Limitation Act and the relevant articles fixing the period of limitation depending upon the nature of the suit, it is appropriate to mention that the plea of adverse possession is always open subject to pleading and proof and subject to other limitations in law interpreted by the Supreme Court in the precedents stated above. It is said that the Indian law relating to easements of support is codified in Sections 4, 7 and 15 of the Easements Act. The essential conditions for acquisition of right of support as an easement are –
(i) that the right must be enjoyed peaceably and openly;
(ii) that the right must be enjoyed as an easement;
(iii) and the right must have been enjoyed without interruption for the full period of 20 years.
(these conditions are fully satisfied in this case)
In the nature of the contentions raised on behalf of the appellant, it is possible to think that the easement of support to a building by land by virtue of Sections 7 and 15 of the Easements Act is not available to the support by a building. That has been clarified and confirmed in the negative by the settled law that the principles applicable to easements of support to a building by land are equally applicable to this class of easements for support by land. The contention of Mr. Ramachandra Raju, learned Counsel for the defendants is that the ruling of Allahabad High Court (15 supra) supported by the other High Courts stated above, in regard to the defendants’ perfecting their title by adverse possession in this case is totally justified in view of Section 27 of the Limitation Act and also Article 65 of the Limitation Act, has no force. It is true that, as already pointed out, such a plea is open to the defendants even in a case like this where the right can be established either by easement or by prescription. But all the ingredients of such a plea should be established and particularly in view of Section 15 of the Easements Act, the concept of perfection of title by adverse possession has different conditions as already pointed out and unless they are brought home, the alternative result is right by easement or by prescription and that has happened in this case. Mr. Harinath, learned Counsel for the appellant is right in that regard. Because, in so far as easement and right of prescription are concerned, it can be established by proving the support of the property or building belonging to the servient owner whether with or without knowledge, whereas in case of adverse possession only the knowledge but also it must be open, hostile and continuous. While dealing with the law in India regarding ingredients of easement and easement by prescription, it appears that the settled law is that the mere fact that the servient owner was ignorant of the enjoyment of the support will not prevent the acquisition of right by prescription, nor the fact that he was incapable of resting the enjoyment by reasonable means. This appears to be the true implications of Sections 4, 7 and 15 of the Easements Act. (Pages 377 and 378 of B.B. Katiyar on Law of Easements and Licences supra).
15. Now examining the precedents depended upon by both the sides, although some of them support the case of the plaintiff and some of them support the case of the defendants, it is certain that they did not deal with the question in the manner stated above in the background of the provisions of the Easements Act and the settled law in that regard. If such principles are adopted, it may lead to anmalies, if not injustice to one or the other party in the suit. If in all cases, perfection of title by adverse possession is applied by mere hyper-technical interpretation that the intrusion or encroachment covers the sub soil and the space above or below the encroachment or intrusion, it would destroy the title and ownership of the servient owner and that is not the spirit and the true implications of an easement and prescription Under Section 4 and 15 of the Easements Act. If a view that extension of such a right is to extend only to the portion of the encroachment, insertion etc., is taken that will destroy the right of easement or prescription as a whole. The best illustration is the present case. Rafters of the building of the defendant are inserted in a portion of the disputed wall whereas some sheds put up by them are abutting and covering a portion of the wall belonging to the plaintiff. That is also only to the extent of a portion of the wall, which is clearly stated in the Judgments of the Courts below, and nothing beyond that. Presuming that the plaintiff either meddles with or removes any portion below or above such insertion or encroachment thinking that the extent of easement or prescription is limited to the same area, that will destroy the right of easement or prescription of the defendants in one way or the other. That is not the true spirit or the intention of the legislature or the settled law in dealing with easement or prescription. It may not be forgotten that the enjoyment of the property by the servient owner is subject to the rights of dominant owner regarding easement and prescription and it is subject to the limitations and restrictions prescribed in Chapter III of the Easements Act. Furthermore, the doctrine of perfection of title by adverse possession is a species of acquisition of title akin to acquisition notwithstanding pure and simple title having all the necessary ingredients.
16. The Learned Judges of the Courts below have not dealt with the matter in this way and merely depending upon some precedents without going into detail and other similar precedents stated above, they have landed in serious error. That is how the suits came to be decreed partly with certain observations without safeguarding the interest of the defendants also. The plaintiff was entitled to the decree in regard to the title claimed covering the entire area of the disputed wall and not merely for 14″ wall. The finding that the defendants have perfected their title to 10″ portion of the disputed wall by adverse possession is illegal and deserves to be set aside. The appellant plaintiff filed both the suits, one for permanent injunction and another, for declaration and consequential injunction in regard to the suit wall. The defendants denied the title of the plaintiff therein. The defendants have also challenged the correctness of the valuation of the suit and the Court fee paid. Hence an issue in that regard came to be framed in the suit and the Court was bound to decide the issue. Mr. Harinath contends that Under Section 11(2) of the APCF and Suits Valuation Act, the finding on the said issue will operate as res judicata and he is prepared to pay the Court fee for the same. Therefore, the decision in this case shall be subject to the plaintiff filing a fresh valuation slip and paying the requisite Court fee according to law. He shall do so within a month from the date of receipt of a copy of the Judgment, by trial Court, failing which he shall not be entitled to have the benefit of the decision in this appeal.
17. In the result, the appellant succeeds. The appeals are allowed. The Judgments and decrees of the Courts below are set aside and they are modified in the following terms: OS. No. 341/88 is decreed in favour of the plaintiff against the defendants for permanent injunction restraining the defendantail from in any way interfering with the raising of the height of the 14″ wall constructed to the west of FG wall and also raising of the newly added wall constructed to the north of GJ wall and in making constructions over the said newly added wall.
18. Furthermore, OS. No. 195/74 is decreed to the effect declaring that the wall HJV belongs to the plaintiff. It is made clear that such a right of the plaintiff is subject to the rights of the defendants by prescriptive easement which are elaborately dealt with in the Judgment and without detrimental to such rights and interests of the defendants. It is also made clear that the plaintiff shall not do anything in dealing with his wall as above so as to cause obstruction or damage or affecting the rights of the defendants in any manner to such an extent. It is also made clear that the defendants shall not interfere with the plaintiff’s enjoyment of the suit wall as above, however, subject to their rights in the wall stated above. The defendants’ rights of easement and prescription, as stated above, extends to the entire suit wall (EFGHJV). In the peculiar circumstances of the case, the parties shall bear their respective costs throughout.