R.C. Mitter, J.@mdashThe Plaintiff who is the Respondent in this appeal is the owner of Plot No. 45 of Siliguri hat. Oh it he has his house, the northern wall of which is built of planks over which Kerosine tins have been nailed clinker-fashion. To the immediate north of his house is plot No. 44 which belongs to the Defendant. Formerly a narrow space immediately to the north of his northern wall, which admittedly appertains to plot No. 44, was in an open state. It was a sort of lane. The Defendant, however, commenced to build just before the suit a pacca wall on this open space flush with the northern wall of the Plaintiff''s house. The Plaintiff states in his plaint that by reason of the erection of the said wall his windows have been obstructed, that he cannot pass over the space, which I have called the lane, and that he cannot repair his northern wall. He claims that he has acquired by prescription, that is under the provisions of sec. 26 of the Limitation Act, an easement of light and air, an easement of way and an easement to repair the northern wall of his building, and complains that the wall raised by the Defendant has interfered with his aforesaid easement rights. His claim of an easement for light and air and for passage has been negatived, but his right to repair the wall has been declared by the judgment and decree passed by the lower Appellate Court, and the Defendant has been directed to remove the wall. to keep a space four feet wide adjoining the northern wall of the Plaintiff''s house to enable the Plaintiff to go upon the said open space for effecting repairs and he has been prevented by an injunction from raising any structure within four feet of the northern wall of the Plaintiff''s house. The Plaintiff is satisfied with the decree but the Defendant has preferred the second appeal to this Court. The finding on which the Plaintiff has been given the right to repair his wall is that the Plaintiff repaired his wall once in 1903, again in 1915, then in 1922 and the last repair effected by him before the suit, which was filed on the 16th June, 1930, was in the year 1924. It has been found that the repairs were effected by the Plaintiff without obtaining permission from the Defendant, that is, the acts done by him were done by him openly and as of right, and the interruption by reason of the Defendant''s obstruction was only just before the institution of the suit. On these findings Mr. Das has urged the following points:--
(1) that the right to repair is a novel kind of easement and cannot be acquired by prescription;
(2) that the user has not been continuously for twenty years, sec. 26 requiring continuous enjoyment;
(3) the last act of repair being admittedly beyond two years of the suit, the Plaintiff has not established the right.
2. With regard to the form and scope of the injunction, Mr. Das contends that it is too wide. He says that when the Plaintiff''s claims to easement of light and air and of way have been negatived, his client, the Defendant, should not be restrained in such a way as would prevent him from putting hoardings or other suitable structures against the Plaintiff''s windows and making such other arrangements which would prevent the passage of the Plaintiff over his land. In support of his first contention Mr. Das has placed before me those well-known cases which lay down the proposition that Courts will not create any new species of easement; in support of his second contention he cited the case of Hollins v. Verney L.R. 13 Q. B. D. 304 (1884) and for his third contention he relied upon the wordings of sec. 26 of the Limitation Act. In my judgment none of his three contentions ought to be accepted.
3. There cannot be any doubt on the well-established principles that Courts will not create new classes of easements. The cases cited by Mr. Das, however, are not cases where the claim to a right to repair was in question. Some of the cases where the said principle is re-iterated are not cases of easement at all, as for instance, where a claim was put forward to bury dead bodies in another''s land. That professed right cannot generally be said to be appurtenant to any land; in other cases the claim preferred had no doubt some connection with the beneficial enjoyment of what was said to be the dominant tenement, e.g., to get the sea-breeze have an open prospect, etc, but the amenities claimed were so wide in scope, and the claim, if recognised by the Courts, would have been so much burdensome on the servient tenement that the Courts were reluctant to recognise the claims and turned down the claims on the principle that the Courts would not create a new species of easements. Mr. Das admits that a light to repair can be conferred by grant, and the grant can be enforced against the owner of the land who gets the burdened land from the grantor. This means that a right to repair is not a novel kind of easement; so the argument of Mr. Das boils down to this, that such an easement can be created by grant or acquired by other modes by which easements can be acquired, but it cannot be acquired under the provisions of sec. 26 of the Limitation Act. The substantial contention, as Mr. Das later on admitted, is his second contention.
4. Mr. Das puts his case in the following way. He says that the essence of prescription is continuous enjoyment. If the right claimed from its very nature cannot be exercised except at long intervals, that right, he says, cannot be acquired by prescription, that is, under sec. 26 of the Limitation Act. By continuous enjoyment he does not mean, as he stated, that the user must be from day to day or throughout twenty-four hours of a day, but he says that user must be reasonably frequent, and for that purpose he cites Hollins'' case L.R. 13 Q. B. D. 304 (1884). He further argues that in the case before me, having regard to the finding that repairs were effected only four times in the course of about twenty years, the enjoyment of the right was not such as would satisfy the provisions of sec. 26 of the Limitation Act. I feel great difficulty in accepting Mr. Das''s contentions. If pushed to its logical extent, it would under the acquisition of discontinuous easements impossible under sec. 26 of the Limitation Act. I will take up the second and third points noticed by me in the beginning of my judgment together.
5. The argument of Mr. Das proceeds on a misconception, which frequently occurs, namely the omission to recognise the distinction between the " enjoyment of a right " and actual user. Sec. 26 contemplates enjoyment of the right claimed as easement for twenty years without interruption, the said enjoyment of the right to be carried to a period within two years of the suit. The section does not speak of actual user. The right may be enjoyed continuously although the actual user manifesting the enjoyment of the right may be at long or short intervals. The user must be open, as of right, i.e., without permission of the owner of the servient tenement, not in the actual or assumed capacity of the owner of the servient tenement, must be capable of being obstructed by the owner of the servient tenement either by a physical act or by proceedings at law and must be without interruption, which means discontinuance of enjoyment by reason of an adverse act of the owner of the servient tenement. It is sufficient in law if the acts of actual user put the owner of the servient tenement, regarded as a reasonable man, on notice that a right in the nature of an easement is being asserted or claimed over his property. This seems to me to be the true principle and in my judgment it is on this principle that discontinuous easements can be acquired under the Limitation Act, and it is on this principle that cases which have upheld the right of pasturage or boat way during times of flood claimed as easements, and other easement rights which can be manifested by actual user at intervals, have been decided. There would be 110 occasion to use a grazing ground if there is no grass on it, or if the owner of the dominant tenement has no cattle for some years, or a boat way, if there are no high floods in some years during the rainy season. [Budhu Mondal v. Maliat Mondal ILR 30 Cal. 1077 at p 1083 (1903), Ghasiram, Mondal v. Asirbad Mahato 15 C.W.N. 259 (1910), Gopal Chandra Sen v. Bankim Behari Roy 26 C.W.N. 121 (1919)].
6. In the case of Koylanh Chandra Ghose v. Sonatun Choudhury ILR 7 Cal. 132 (1881), the right claimed was a right of way for boats in the rainy season over a tract of land belonging to the Defendants and was. based on prescription. The suit was instituted on the 6th April, 1878. The obstruction was put up by the Defendants in June, 1876, that is within two years of the suit, but the actual user by the Plaintiffs was from before 185S down to November, 1875; that is, the last act of user was beyond two years of the suit. This Court had to consider the question of limitation and for deciding the said question had to construe paragraph 4 of sec. 26 of the Limitation Act of 1877, which section is the same as sec. 26 of the Limitation Act of 1908. Garth, C. J., pointed out that there is a great deal of difference between actual user and enjoyment of the right claimed in the suit and the law required only the enjoyment of the right and not actual user to be carried down to a period of two years of the suit. The following passage in the judgment of the learned Chief Justice brings out the principle in bold relief and is relevant for the purpose of the appeal before me. " In order to establish the right," says the learned Chief Justice,
the enjoyment of it must continue for twenty years; but in the case of discontinuous easements, this does not mean that actual user is to continue for the whole period of twenty years. On the contrary. there may be days and weeks and months, during which the right may not be exercised at all, and yet daring all these days and weeks and months, the persons claiming the right may have been in full enjoyment of it.
The easement with which we have to deal in the present case affords a remarkable illustration of this.
The right which the Plaintiffs claim can only be used by them daring the two or three months of the year when the Defendant''s land is flooded; and if there was a lack of rain, it is probable that even for twenty or twenty-one months the right might not be exercised at all, and yet, so long as the Plaintiff''s right was not interfered with, whenever they had occasion to use it, their enjoyment must, we conceive, be considered as continuing during all the round. Unless these were 80, a person in the Plaintiff''s position, who could only use his right during a short period of the year. could never gain a prescriptive right at all.
7. In Hollin''s case L.R. 13 Q. B. D. 304 (1884) the Plaintiff claimed a right of way over the Defendant''s land for the purpose of cutting and removing wood from his close. The claim was based on sec. 2 of the English Prescription Act (2 and 3 William 4, e. 71). The Plaintiff did not cut wood from the close every year but at intervals of several years, the last cutting was a year before the institution of the suit, the one next previous twelve years before and the next at another interval of twelve years. Lindley, L. J., held that such a right could not be acquired under the Prescription Act. He recognised that to establish a right under sec. 2 of the Prescription Act, an actual continuous user by day and by night for twenty years without cessation is not necessary and that in the case of a discontinuous easement like a right of way it is extremely difficult, if not impossible, to say exactly what cessations of actual user are, and what are not, consistent with such an actual enjoyment for the full period of twenty years as the said statute requires to establish the right, (the said statute uses the expression " actually enjoyed " and not simply " enjoyed " as in the Indian Act). He then pointed out that easements, the enjoyment of which cannot be prevented, cannot be acquired by prescription. That principle had been firmly established since Dalton v. Angus L.R. 6 A. C. 710 (1881). He then makes the following observations:--
If it cannot be interrupted or resisted during the full period of twenty years, it is difficult to see how it can be actually enjoyed for such period ''as of right'' and ''without interruption'' as required by sec. 2 of the statute. The difficulty of, however, distinguishing between long and short intervals of enjoyment is not removed by such reasoning. The difference is rather one of degree than one of principle, and the statute does not afford any certain test whereby the difficulty can be solved.
8. In the course of the judgment he notices among other cases Carr v. Foster 3 Q. B. 581 (1812) where the Plaintiff- claimed a right of common pasture. In that case the Plaintiffs proved user for forty years except for two years, when he had no cattle, but notwithstanding this fact that no cattle of his grazed for the said two years he got a decree. He then notices Lowe v. Carpenter [1851] 6 Erch. 825 and observes that non-user for more than a year within the twenty or thirty years of the action may be so explained as to warrant a jury to find an actual enjoyment for the statutory period, " as the jury in fact did in Carr v. Foster 3 Q. B. 581 (1812)," but unless so explained, "the absence of user for any year of the statutory period will be fatal." Lord Lindley was no doubt inclined to the view that unless the non-user for an appreciable period of time was due to causes which did not depend, to speak in a general way, solely upon the will of the person claiming the right, it would be fatal to the acquisition of the right under the Prescription Act, whether the said non-user was at the beginning, or the end, or in the middle of the statutory period, but on a review of the cases he found it " difficult, if not impossible, to enunciate a principle which will reconcile all the decisions, and still more all the dicta to be found in them " and thought it advisable to adopt the only "safe course," that is, "to fall back on the language of the statute, to give effect to it, and to introduce into it nothing which is not to be found there." Then he observed that the English statute expressly required "actual enjoyment" as of right for the full period of twenty years. Hollins'' case L.R. 13 Q B D 304 (1884), therefore, does not profess to lay down any general principle and was ultimately decided on the words of the English statute, and it cannot be urged that as the Plaintiff''s right was negatived in that case, the claim of the Plaintiff before me must be turned down, unless it be that the language of the English statute and of the Indian Limitation Act are identical. An examination of the two statutes would show that there is difference and it is on this ground that this Court has in more than one case refused to follow Hollins'' case L.R. 13 Q. B. D. 304 (1881) [see Budhu Mandal v. Maliot Mandril ILR 30 Cal. 1077 at p. 1083 (1903) and Ghasiram Mondal v. Asirbad Mahato 15 C.W.N. 250 at p. 261 (1910)]. I accordingly hold that a right to go upon another''s lands for the purpose of repairing a wall or house and any other discontinuous easement can be acquired under sec. 26 of the Indian Limitation Act and that if the evidence is that the user was open and as of right, and as and when occasion arose, it is sufficient for the acquisition of the right under the statute, the fact that such user was at long intervals being of no moment. On these principles I hold that the Plaintiff has acquired the right to go upon the Defendants'' land for the purpose of repairing the northern wall of his house. The last contention of Mr. Das remains to be considered. The Plaintiff has failed to establish his right to receive air and light through the windows placed on the northern wall of his house, as also his right of way. The Defendant has, therefore, every right to place obstructions or hoardings against the windows and to place bars or other obstructions which would prevent the narrow space from being used as a general pathway by the Plaintiff, provided the obstruction placed or structures raised by him do not prevent the Plaintiff from repairing his wall. The permanent injunction which restrains him from raising any structures within the space of four feet from the Plaintiff''s northern wall must be modified. He can raise such structures as would be effective in blocking the Plaintiff''s windows and such contrivances, as for instance doors or bars, across the said open space of four feet as would prevent the Plaintiff from using the said space as a general passage, but he must not raise any structures which would interfere with the Plaintiff''s right, hereby declared, of repairing the northern wall of his house. Subject to this modification, the decree of the lower Appellate Court is affirmed and the appeal dismissed with costs.
