JUDGMENT
Prabha Shankar Mishra, J.
1. The dispute in this appeal is confined to three feet land lying adjacent west of western wall of the house of the plaintiff-respondents. The plaintiffs claimed title and thus absolute ownership of the said land as also right of easement perfected by continuous enjoyment of light and air and drainage through the said three feet land. The defendant-appellant disputed the plaintiffs’ claim of absolute ownership as also enjoyment of any right of easement. Both the Courts below have found that the title to the land is not proved by the plaintiffs; but they have upheld the right of easement on the basis of the finding that the plaintiffs enjoyed light and air as also drainage through the said three feet of land for more than twenty years, and thus perfected the right of easement. The instant appeal is directed against the said finding and judgment and decree accordingly.
2. A further controversy was raised about the construction of a wall close to the house of the plaintiffs in the suit. Granting the said right of easement in favour of the plaintiffs the Courts below have decreed the plaintiffs’ claim for removal of the wall and enjoined the defendant-appellant from making any construction and/or obstructing the plaintiffs’ easement.
3. Mr. Bhartee, learned counsel appearing for the appellant raised two contentions. He has submitted that the very fact that the plaintiffs pleaded both ownership as also easement in the suit and led evidence accordingly to prove their title as also the right of easement shows that the servient right was not enjoyed by the plaintiffs with animus and the two pleas being inconsistent with each other the suit should have been dismissed outright. He has next contended that before the court granted a decree for injunction it should have recorded a finding that the construction of the wall and/or existence of the wall would cause injury which would not be compensated by any means and the easement claim cannot be enjoyed otherwise. In support of the first contention he has placed reliance upon a Division Bench judgment in the case of Khanchand Jethamal v. Naraindas Pahlajrai, AIR 1939 Sind 110. Speaking for the Court Davis J. C. has said that in order that a plaintiff should prove the right to an easement, he must show the exercise of that right with the necessary animus throughout the statutory period; the question of animus is a question of fact to be proved by evidence; though a plaintiff in a case to establish right of easement may in his pleadings raise inconsistent pleas, yet if in the witness-box he leads evidence to show that he is the owner of the land over the statutory period or some part of it, he clearly destroys his case which is dependent upon his showing that he is not the owner of the land over the statutory period and has not claimed the right of owner but the exercise of the right over the land of another; in such a case the plaintiff must necessarily fail on both the grounds as one plea is fatal to the other. This view of the Sind Court is a reiteration of the view taken in some Bombay cases which are referred to in its judgment and a case of the Madras High Court in Subba Rao v. Lakshmana Rao (1926) ILR 49 Mad 820 : (AIR 1926 Mad 728) (FB). In the case of Rau Rama Atkile v. Tukaram Nana Atkile (AIR 1939 Bom 149) however the view similar to the view expressed by the Sind Court in the decision of Baker, J., in (1932) 34 Bom LR 1015 : (AIR 1932 Bom 513) came up for consideration. Beaumont, C. J., speaking for the Court has said : —
“But I should like to make one or two observations about the decision of Baker, J., in (1932) 34 Bom LR 1015 : (AIR 1932 Bom 513) because I think that some of the learned Judge’s observations go too far. It is not, in my judgment, the law that a person cannot acquire an easement unless during the whole prescriptive period he acts with the conscious knowledge that it is a case of a dominant and servient tenement and that he is exercising a right over property which does not belong to him. It is of course perfectly true that an easement can only be claimed in respect of somebody else’s property, and a man cannot claim an easement over his own property. But it is also clear that a plaintiff may, claim an easement and ownership in the alternative.”
And following as held in a Full Bench judgment of the Calcutta High Court in Narendra Nath v. Abhoy Charan (1907) ILR 34 Cal 51 he has said : —
“In my opinion, where a party shows that for the statutory period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he was consciously asserting a right to an easement. Most laymen do not know exactly what their legal rights may be. They do certain acts without formulating, even mentally, a legal claim, and in my opinion a right to an easement by prescription cannot be defeated merely by showing that during the whole or part of the period of prescription the plaintiff was not consciously claiming an easement.”
In Narendra Nath v. Abhoy Charan (1907) ILR 34 Cal 51 : (1906) 4 Cal LJ 437 (FB) a similar question had arisen and the court after considering various provisions of law has said that a suit is not liable to be dismissed because the plaintiff claims in the alternative over the same plot or ground rights of ownership and easement. Settling the law the decision in the Calcutta case says : —
“The truth of the matter seems to me to be this, that while there is an undoubted inconsistency in claiming a right of ownership and a right of easement jointly in the same land, there is no real or necessary inconsistency in claiming either of these rights in the alternative. In a case like the present, a plaintiff may very well allege bona fide, “I believe the land to be mine, but I may be unable to prove it; if I should fail to prove, I can at any rate prove that I have been using the right of way as an easement uninterruptedly and as of right for over 20 years.” There appears to me no reason in principle, why a claim like this in the alternative should not be tried, or why the plaintiff should be forced, first to bring a suit to establish his right of ownership, and if that fails, then to bring a suit to establish the right of easement.”
4. The Calcutta view which has been fully endorsed by the Bombay Court also is evidently more rational and reasonable. Inconsistent pleas do not always destroy each other particularly when they depend upon the existence of the right enjoyed. By laying a drain through such land and using the drain for more than twenty years the plaintiff could reasonably believe that he had acquired title by adverse possession and/or that the land formed part of his own tenancy abutting the land in dispute. His awareness and belief of the right of easement and the fact that the drain existed in the land give to him a plea for easement, and, accordingly, if he has raised the two alternative pleas in the suit, he has done no wrong.
5. A distinction has been maintained in the easement granted as of necessity and the easement acquired by prescription in accordance with Section 25 of the Limitation Act. Acquisitions of easement by prescription are to the use of light or air to and for any building or way or water course or the use of any water or any other easement. Such right accrues, if it is peaceably enjoyed as of right without interruption and for twenty years. Mr. Bhartee has drawn my attention to a judgment of this Court in Rachhaya Pandey v. Sheodhari Pandey (AIR 1963 Pat 76) in which Utwalia, J., has said that the easement contemplated as to water course or the use of any water is not the right of drainage but the natural right for flow of water or passage through the water.
6. Mr. Bhartee however has made endeavours to persuade me to hold that the construction of the wall by the appellant without interfering with the sun and air cannot cause any injury or damage if the appellant further ensures that the drain constructed by the plaintiffs is not interfered with. He has brought to my notice a judgment of Rajasthan High Court in Mst. Umrao Kanwar v. Mst. Ram Pyari, AIR 1959 Raj 235 in which it has been held that the injunction must confirm to the extent of the easement enjoyed and should not go beyond the easement to deny to the owner of the property its enjoyment otherwise. In other words Mr. Bhartee has contended that unless it is found by the court that without granting injunction the plaintiffs cannot enjoy the easement acquired by them no injunction should be granted in any mandatory form like one granted by the courts below to remove the wall constructed by the appellant. The appellant’s difficulty in the instant case however is that the plaintiffs’ case that their drain exists in the said three feet land and their ventilators open in the said land leaves no room for looking to the extent to which the appellant be allowed to use the land without interfering with the right of easement of the plaintiffs. The land is such a small strip of land that its existence besides the house of the plaintiffs can alone ensure some semblance of civility. All norms of civilised living are violated when houses are constructed so close to each other that what to speak of privacy so essential for modern living even necessary easement becomes impossible. True the plaintiffs cannot claim any right other than the easement noticed and held to exist in their favour yet to permit construction of a wall close to the western wall of the plaintiffs’ house will undoubtedly introduce several new elements of inconveniences. I do not find this to be such a substantial error of law that I should interfere in the judgment of the courts below in a second appeal.
7. In the result, this appeal is dismissed but without costs.