CHAPSIBHAI DHANJIBHAI DANAD versus PURUSHOTTAM

CHAPSIBHAI DHANllBHAI DANAD v. PURUSHOITAM April 5, 1971 [1. M. SHELA1' AND I. D. DUA, JJ.J

335

A

B

UaN.-Ptriod indefinite but no heritable rights to lessee's heirs-If

11e1ntanent lease.

Transfer of Property Act (4 of 1882), s. 108 (d)-Accession, proof vf.

Eauments Act (5 of 1882), ss. 12 and 15-Proof of acquisition of e~nient right-Proof of easement of right of passage-Easement right tu Ught and 'lir-Dtprivation of-When actionable.

c

In 1906 the predecessor-in-title of the respondent leased out an open portion of land to the appellant's father. The lease was for building a residential structure, and the appellant constructed a house. Though it was for 30 years certain, the lessee was entitled to remain in possession \)f the land so long as he paid the stipulated rent, which the lessor was not entitled to increase. There were no express words indicating that the leasehold rights were intended to be heritable. The deed provided for the right of the lessee to remove the structures after the lease period, meaning thereby vacating the land, if be so desired. It gave the lessee the right to transfer by sale the leasehold interest.

Jn 1929, the original plot was given two numbers 94 and 93 the latter being the western portion in the possession of the respondent-lessor and the former being the eastern portion leased out to the appellant There was a strip of land, 4 ft. in width, immediately to the west of survey no. 94 and forming part of survey no 93. This strip ot land was used by 11\e appellant for passage for going to a well situated in plot Ro. 93. The appellant's father bad taken a portion of plot no. 93, including the strip. 011 lcai;e~ paying separate rent therefor and put up thereon a tin Shed wllich stood there from 1935 to 1941. Sometime thereafter the respondent commenced construction on survey no. 93 in close vicinity to the appellant·~ plot.

D

E

F

On the questions: (I) Whelher the lease was a permanent lease; (2) there was an accession in respect of the strip of land within the meaning of 1. 108(d) of the Transfer of Property Act, 1882, and therefore, the strip of land must be deemed to be comprised in the lease; and (3) whether the -11ant had acquired by prescription, rights of euement of light and air and of passage over the strip of land under s. 15 of the Easements Act. G 1882.

HELD: (I) The question as to whether a leaae was permanent or for the lif• time only of the lessee, even where it was for building •tructure6 and was transferable, depends upon the terms of the lease. The mere fact that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a permanent lease. Such a provision can be.made in two ways resulting in two dilferent con- aequences. The leaae m•Y provide a fixed period and the.n include a ~vi- lion that in the event of the lessee dying before the expiry of such ~ his hei!"I would be entitled to have the benefit of the lease for the remam~

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of the period. In such a case, although the lease may provide for the heirs to succeed to the interests in the leased land it would only mean that such heirs succeed to the rights up to the expiry of the lease period. If the lease provided that the lessee could continue in possession of the property so long as he paid the stipulated rent, it would usually be regard.·· ed as lease for an indefinite period and as such for the lessee's life time. In such a .case, if the lease contains a provi:;ion for the rights thereunder being heritable, then, such a lease, though ordinarily for the lifetime of the lessee, would be construed as permanent.

[341F-H; 344C-E]

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In the present case, since the lessee was entitled to remain in posses sion even after the lease period it was a lease for an indefinite period. But there was no provision in the deed making the lessee's right heritable and therefore, it was not a permanent lease but only for the lifetime of the lessee.

[344A ; 346D-E]

(a) The words, if the lessee were to remove the buildings before the expiry of 30 years he would have to pay rent for the remainder of tbt period, do not show an intention to create a permanent lease. The clause providing for such removal is not that the lessee would remove the struc tures on default of payment of rent but on his own volition~ a clause indicative of the parties not having intended the lease to be permanent. [344B ; 345E-F]

(b) The words 'after the lease period' mean either at the end of 30 years or at the death of the lessee. Therefore, the clause that after the lease period we shall, if we like, remove our buildings', merely ensures the right to remove the structures if the lessee or his heirs so desired on the expiry of the lease period, that is. either at the end of 30 years or after the life time of the lessee. The heirs are mentioned here to provide for the con tingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occu In the event of the first contingency, the lessee's heirs would py the land. till expiry of 30 years and then remove the contiiiu,e in possession structures if they wished. In the case of the second contingency the heirs of the lessee would have a right to remove the structures on the death In either event the right provided for is the right to remove of the lessee. the structures. It was not a provision for the lease being heritable and its being consequently a permanent lease.

[345D-H]

(c) The pronoun used in the document is the vernacular equivalent of •we• used for the executant instead of the singular 'I' and does not mean the lessee and his heirs.

[346B-C]

Sivavogeswara Cotton Press v. M. Panchaksharappa, (1962] 3 S.C.R. 876, Lekhraj Roy v. Kunhya Singh, 1876-77 LR. 4 I.A. 223 Vaman Shriparl v. Maki, I.LR. 4 Born. 424, Donkangonda v. Ravanshivappa, 45 Born. LR. 194, Bavasaheb v. West Patent Co. 56 Born. LR. 61 and Abdul Rahim v. Sara/a/Ii, 30 Born. LR. 1596, referred to.

Sonabai v. Hiragayri, 28 Born. L. R. 552, Runge IA/I Lobes v. Wilson, [1899] I.L.R. 26 Cal. 204, Promoda Nath Roy v. S. Chowdhry, (1905] I.LR. 32 Cal. 648 and Nava/ram v. Javeri/al, 7 Born. LR. 401, disapproved.

(2) Under s. 108(d) of Transfer of Property Act if any accession is made to the leased property during the continuance of a lease, such accea sioa is deemed to be comprised in the lease. [346F]

CHAPSIBHAI v. PURUllHOTTAM (She/at, J.)

In the present case, the appellant made no serious attempt to e•tablish

accession by adverse possession.

[347H]

33 7

A

(a) When the plots were separately demarcated including the strip in the respondent's portion no protest was ever made against such :i demar catioo by the appellant or his father..

[347G]

(b) The appellant made a categorical statement in evidence, that ac- cording to him the said strip of land was covered by the lease deed and was not an acquisition over and above the leased land under the deed, but the evidence showed that strip was not so included.

[347G-H]

(cl The appellant sought to n1ake out a case of easementary right by prescription, a case incompatible \\1ith the claim of adverse possession. [348A·B]

(3) Under ss. 12 and 15 of the Easements Act an easement by pres cription can be acquired by assertion of hostile claim of certain rights vver another man's property. Jn order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to ~xercise that bost!le claim on a property which is not his own, and where no such consciousness is proved, he cannot establish a prescriptive acquisition of the right. Where he has pleaded ownership- and has failed. he cannot sub· sequentlv turn round and claim that right as an easement by prescription. To prove the latter it is necessary to establish that it was exercised on so1ne,Jne else's property and not as an incident of his own ownership of that property.

[3490-G]

In the present case, the appellant having claimed, though unsuccessfully. that the strip of land was included in the leased land or that there was an accession, he could not successfully claim that during the requisite period he exercised rights over it as the owner of a document tenement. Further, he could not claim any right of passage because his use of the strip as a passage was permissive.

[350C·E]

As tu light and air through the windows on the western side the ap. peJlant could succeed only if there was a substantial privation of light, enough to render the occupation ofi..~is house uncomfortable according to ordinary notions of mankind.

[35011; 351A] rn the present case, the plan showed that as a consequence of con- struction by the respondent there would be a partial deprivation of light and air. But no attempt was made on behalf of the appellant to establish that the obstruction caused by the respondent's construction had been such as to a;nount to substantial privation so as to render the occupation of the house by the appellant uncomfortablt.

[351C-E]

·

B

c

D

F

Rayachand v. Ma11ik/a/, I.L.R. [1946] Born. 184 (F.B.), approved.

Coils v. Home and ColoniafStores, [1904] A. C. 179, applied.

G

can acquire a right to light and air as against the owner, left open.]

[The question whether under ss. 4 and 12 of the Easement Act. a lessee [349A] JURISDICTION: Civil Appeal No. 435 ot

CIYJL APP£LLATE

1967.

Appeal from the judgment and decree dated September 30, 1966 of the Bombay High Court Nagpur Bench in Letters Patent No. 4 of 1964.

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22-1 SC. lndia/71

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A

S. T. De1ai and A. G. RatnaparkhJ, for the appellant

Rameshwar Dial, Jaishi Ram Goel and A. D. Mathur for the

respondent

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D

The Judgment of the Court was delivered by

Shelat, J.-By a deed of lease, dated May 5, 1906, the prede cessor-in-title of the respondent let out to the appellant's father an open portion of land measuring 26 ft. x 225 ft. out of a larger plot. The lease was for constructing buildings and for a period of 30 years certain at the annual rate of Rs. 130. The lease con tained, inter alia, the foJlowing :

"Even after the prescribed time limit, I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above. You will have no right to increase the rent and I shaJI also not pay it, myself and my heirs shall use this land in whatever manner we please. After the lease penOd, we shall, if we like, remove our building right fron. the foundation and vacate your land. In case we rem"'1e our structure before the stipulated period, we shall be liable to pay to you, the rent for aJI the thirty years, as agreed to above. .. ....... In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms In this lease-deed. .. ....... "

The trouble between the parties started when the respondent commenced construction on the rest of the land in a fashion so as to be in close ~cimty to the western boundary of the leased land to house an industry, called Sudha Industries.

p

The appellant filed the suit in 1958, out of which this appeal arises, urging that the said lease Wlls a permanent lease, that build ings had been constructed on the leased land partly in 1906, and the rest in 1909 and 1922, that the said plot of land was subse quently demarcated into two survey numbers, 94 and 93, that a strip of land, 4 ft. i'n width and measuring 650 sq. ft immediate!) to the west of survey No. 94 and forming part of survey No. 93 was covered by the said lease and Wlls in his possession as par; of the leased land or was acquired by him ag acceision. Pend· ing the suit the appellant amended the plaint asserting that the~ portion Jct out under the said deed of lease was 5850 sq. ft. in 1he aggrepte, wlllch tncladed ·the said strip of land, and annexed a new plan showing details of the land which according to him was leased out under the said deed.

B

CHAPSIBHAI V. l'URUSHOTTA" (Sht/at,J.)

Out of the.structures put up by the appe!Jant's father, the central building, as shown in the plan produced by the appellant, has windows on the ground, first and second floors, all opening on the western side. The eaves of that building protrude on that side by about 2t ft. with the result that the rain water falls over the said strip of land. According to the plaint, there is a drain partly in plot No. 94 and partly over the said strip of land which carries the entire waste water from the said building. According to the appellant, the said construction made by the respondent shut off light and air which he had been enjoying from the afore· said windows. He had other complaints also to make and claim· ed amongst other things a declaration that the said strip of land was part of the leased land covered by the said deed, or in the alternative, that he had acquired it by way of accession, and prayed for a permanent injunction against shutting off light and air through the said windows and interference with his rights over the said strip of land either as the lessee thereof or as and by way of easements over it. The respondent's answer to the suit briefly was that the appellant was not entitled to the said strip of land either as falling under the said lease or as accession. The respondent also denied that the appellant was entitled to any of the reliefs claimed by him, that the said lease was not a permanent lease but was for a period of 30 years in the first instance, but being a lease for constructing builclings thereon and being trans ferable. could at best be for the lifetime ot _the lessee, the appeh !ant's father. He also averred that part of the land comprised in plot No. 93 used to be let out from time to time to persons including the appellant's father, who had executed a separate rent note, dated July 21, 1935, and who had under the said note been in possession thereof as a lessee from 1935 to 1941. and that he having been permitted as such a· lessee the use of the said strip of land to enable him access to the said leased portion of ~urvey No. 93, there was no question of his having acquired any easementary rights by prescription over the said strip of land.

The Trial Court partially decreed the appellant's

sui.t, in that it rejected the appellant's claim to the said strip of land, but granted a declaration of easement for light and air through the said windows and- fat. carrying waste and rain water through the said drain ovet the said. strip of land. Against that judgment and decree, the appellant filed an ap~ !>cf ore the Di!l'ri~t Court. The respondent also filed ctoss-ob1ect1ons. The District Court disnnMed the appellant's appeal and allowed the cross-objections with the result that the appellant's suit was dismissed. A second appeaf filed' by the apj>ellant in the High Court was heard by a Single Judge "1116 lield that the said lease was a permanent lease-, that tlie appellant bad atquired the said strip of lllnd' as· acces-; Sioli to the ll!Ued lllltil Bild 81' a· ~c:e ot tboee fuxlinfl

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granted a mandatory injunction directing removal of any con· struction or projection by the respondent over the said strip of land. In v'iew of his finding that the said strip of land had always been in the possession of the appellant and earlier. of his father ever-since 1906 and thus had been acquired as an accession, he considered it unnecessary to go into the question of easementary rights claimed by the appellant. The principal ground on which the Single Judge founded his judgment was that the lease was both transferable and heritable, and therefore, had to be held as a permanent lease.

Aggrieved by the judgment and decree passed by the learn· ed Single Judge, the respondent filed a letters patent appeal where· in three principal questions were canvassed ; (I) whether the said lease was a permanent lease, (2) whether the strip of land in dispute was covered by the said lease, or in the alternative, acquired as accession, and (3) in the alternative, whether the appellant had acquired easementary rights over the said strip of land (a) of light and air, (b) of passage and (c) of draining water, both waste and rain, over the said strip of land. The Letters Patent Bench ans· wered all the three questions against the appellant holding that the said lease being a l~ase for building purposes and transferable, was a lease for an indefinite period, and therefore, for the life· time of the lessee, the said Dhanji, that the said strip of land was neither covered under the said lease, nor acquired as accession through adverse possession, and lastly, that except for the drain extending upto 32 ft. constructed on the said strip of land, the appellant had not acquired any other easementary rights over it. As to light and air, the Bench held that the appellant failed to establish that the obstruction caused by the respondent's construc tion was such as to give him an actionable claim against the res pondent. The result was that except for the said drain, the Bench dismissed the appellant's suit.

Mr. Desai for the appellant raised three contentions in sup port of the appeal ; (!) that on a proper interpretation of the docu ment of lease, the lease was a permanent lease, (2) that there was an accession in respect of the said strip of land within the mean· ing of s. 108(d) of the Transfer of PTDperty Act, 1882, and there fore, the said strip of land must be deemed to be comprised in the lease, and (3) that the appellant had acquired by prescription rights of ·easement of light and air, of throwing rain water and draining waste water through the said drain and of passage over the said strip of land under s. 15 of the Easements Act, 1882.

On the question of interpretation of the document of lease, Mr. Desai supported the view taken by the Single Judge. The learned Single 1 udge construed the document to mean (a) that the lease was for building purposes, (b) that i:t was in the first

CHAPSIBHAI v. PURUSHOTTAM (Shelat,J.)

instance for· 30 years certain, (c) that the lessee was to continue to enjoy all rights as a lessee even after the expiry of 30 years, and (d) that the lesser could not increase the rent even after the expiry of 30 years. The most important term of the said lease. said the Single Judge, was "tb.e one which provides for the lease hold right continuing to the heirs and successors". The Letter Patent Bench, however, felt that on a proper construction of the document, the lease was for an indefinite period, and though trans ferable, did not provide for any hereditary rights. In support of that conclusion the Bench pointed out that the view consistently taken by the High Court of Bombay, right from the decision in Vaman Shripad v. Maki,(') was that such a lease is to be constru ed as one for the lifetime of the lessee and not as a permanent lease. The only solitary case where a lease for an indefinite period was construed as permanent was that in Sonabai v. llira gavri, (') but subsequent decisions of that High Court had dis leases for sented from th.at decfa'ion and had consistently held (see indefinite periods as leases for the lifetime of the lessee. Donkangonda v. Re.,anshiddappa ('). In Bavasaheb v. West Patent Co.(') Sonabai's case (~ was once again dissented from, the High Court reiterating that a lease for an indefinite period is ordinarily to be construed as one for the lifetime of the lessee and that a distinction should be made between a transferable and a heritable lease. The High Court there observed (!) that if a lease were to be for a definite period and before that period was over, the lessee died, the leasehold· rights during the remainder of the period would enure for the benefit of his heirs, unless the document slipulated that in such an event the rights of the lessee were not to enure for the benefit of his successors, (2) that if the lease was for an indefinite period, it would not enure for the benefit of the lessee's heirs. Such a lease would usually be for the lifetime of the lessee himself unless it clearly appeared from the contract that the benefit of the lease was intended to accrue to the lessee's successors. Whether a lease was permanent or for the lifetime only of the lessee, even where it was for building structures and was transferable, depended upon the terms of the lease and tb.e Court must, therefore, look at the substance of it to ascertain whether the parties intended it to be a permanent lease. But the fact that the lease provided that the lessee could continue in possession of the property so long as he paid the stipu lated rent did not mean that the lease was for perpetuity. Jt would usually be regarded as a lease for an indefinite period. and as such for the lessee's lifetime. The High Court also pointed out that the fact lhat tenancy rights were transferable, as provided

341

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(I)

I.L.R. 4 Bom. 424.

(3) 4SBom. L. R. 194.

(2) 28 Bom. L.R. ss2.

(4) S6Bom.L.R.6\.

SUPIUl/dll COmlT llBPORTS

[1971] SUPP. s.c.R.

by s. 108.(j) of the Transfer of Property Act, did not mean that t)J.ey were also heritable.

In two of its decisions, Runge Lall Lobes v. Wilson(') and Promada Nath Roy v. S. Chowdhry (') the Calc1dta High Court took the view that where the purpose of the lease was for con· though the structing buildings, the court could presume, even document did not in terms so provide, that the lease was intended to be permanent. To the same efl'.ect was also the decisiOn in Nava/ram v. Javerilal.('). On the other hand in Lekhraj Roy v. Kunhya Singh(') where the lease was for the period of the con tinuance of the lessors' mokurruri, the Privy Council held that if it could be ascertained what the term was. the rule of construc· tion that a grant of an indefinite nature enured for the lifetime of the grantee would not apply. But, if the grant was made to a person for an indefinite period, it enured, generally speaking, for his lifetime and passed no interest to his heirs unless there were In words showing an intention to grant a hereditary Abdul Rahim v. Sarafalli ('} the Bombay High Court adhered to the view consistently taken -by it that the lease there was for the lessee's lifetime. The lease there contained terlns similar to It was for building a factory and although it those before us. provided for 25 years certain in the first instance it also provided that after the expiry of that period the lessee would continue to take the agreed rent so long as the lessee· remained in possession and further provided for the lessee's right to remove the factory when he decided to hand over the land to the lessor.

interest

The conflict of opinion amongst these decisions has since then been resolved by the decision in Bavasaheb's case(') having been expressly approved by this Court in Sivavogeswara Cotton Press v. Panchaksharappa (') The lease here was for build ing factories and other structures and was for a period of 20 years It, however, provided that the lessee could continue to certain. remain in possession so long as he desired and observed the terms of the lease which provided for a higher rent for the first 10 years after the expiration of the said 20 years and a still higher rent thereafter. Cl. 04) of the lease in addition provided that it was to be binding "on me, my heirs, executors, administrators, suc cessors and assigns, as well as on your heirs, executors, adminis- trators, successors and assigns ...... ". The question was as to the

B.

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(I} [18991 I.LR. 26 Cal. 204.

(2) [1905] T.L.R. 32 Cal. 648.

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(3) 7 Bom. L. R. 401.

(4)

[1876-77] L. R. 41. A. 22;.

(5) 30 Bom. L. R. 1596.

(6) S& Bom. Ii. R. 61.

(7) [1962] 3 S. C. R. 876.

CllAPSIBHAI V. PUI\USHOTIAM (Slit/at, J.)

nature of the lease. At page 885 of the report, the Court remark· ed that cl. (14) was a very important clause "which though com ing as the last clause must govern all the stipulations between the parties. Thus the terms and conditions of the lease which created the rights and obligations between the lessor and the lessee were specifically declared to be binding on the heirs and successors-in interest of the lessor and the lessee". The Court then examined including Nava/ various decisions of the different High Courts ram's case (1 ) Promada Nath Roy's case (') and lastly, Bavasa heb's case ('). As to !he last case, the Court at page 889 of the report expressed its "complete agreement" with the observations of Gajendragadkar, J. (as he then was). namely, that the nature of the tenancy created by a document must be determined by construing the document as a whc :e, that if the tenancy is for buil ding purposes, prima facie it might be arguable that it was intended for the life-time of the lessee or might in certain cases be even a permanent lease, and lastly, that whether it was a tenancy for life or a permanent tenancy must ultimately depend upon the terms of the contract itself. As can be seen from an earlier passage on that the Court distinguished Bavasaheb's (') case very same page, on the ground . that the lease there did not contain a provi the sion similar to cl. that' Court sought ·an additional support the lease was permanent stipulated that the rent would be Rs. 350 a year for the first 10 years, Rs. 400 /- for the next 10 years and Rs. 500 /- thereafter until the lessee continued to occupy the land, which provision indicated that the lease was not intended to be only for the life-time of the Jessee. It is cleac from the decision that what clearly weighed with the Court was the fact that the document of lease distinctly indicated that the parties intended that the rights under the lease were to be hereditary. The question, therefore, is whether the lease under consideration is of the type in the case of Sivayogeswara Cotton Press.(').

for in the provision which

it. Besides, its conclusion

the case before

(14) in

Looking at the document (Ex. P-4) as a whole, the leiise un doubtedly is for building a residential structure. Though it is for 30 years certain, the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent, which the les~r was not entitled to increase. But, though the lease is for building structure and the period is indefinite there are at any rate no

(I) 7 Jlolll. J,.R. 401. (2) [1905] I.t •• R. 32 Cal. 648. m S6 Bon!. L.R.. 61.

(4) [t962J 3 ·s.c.R. s76.

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express words indicating that the leasehold rights thereunder were intended to be heritable. On the other hand, it expressly provides, as was the case in Abdul Rehim(1) for the right of the lessee to re move the structures, meaning thereby vacating the land, if he so desired. The clause providing for such removal is not that the lessee would remove the structures on default in payment of rent, but depends on his own volition, a clause indicative of the parties not having intended the lease \o be permanent. For, if it was inten ded to be permanent, there was no necessity for providing such a right. But the argument was that there are words In the document indicative of the lease having been intended to be heritable as was the case in Sivayogeswara Cotton Press('). The mere fact, how ever, that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a per manent lease. Such a provision can be made in two ways resulting · in two different consequences. A lease may provide a fixed period and then include a provision that in the event of the Jessee dying before the expirY of such period, his heirs would be entitled to have the benefit of ~he lease for the remainder of the period. In such a case, although. the lease may provide for the heirs to suc ceed to the interests in the leased land, it would only mean that such If heirs succeed to the rights upto the expiry of the lease period. the lease, on the other hand, were for an indefinite period, and cont ains a provision fo1 the rights thereunder being heritable, then such a lease, though ordinarily for the lifetime of the lessee, would be construed as permanent. The question, therefore, is to which of these two classes of leases the present lease belongs.

After reciting the purpose for which it was made, the term of

30 years and the rent, the deed provides :

"Even after the prescribed time limit. I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above."

Though the period is 30 years, th.is part of the document would make the lease for an indefinite period which would ordinarily mean a lease for the lifetime of the lessee. What follows then, however, gives scope for the argument that it Is not merely for the lifetime of the lessee :

"You will have no right to increase the rent and I shall also not pay it, myself and my heirs shall also not pay It, myself and my heirs shall use this land in what lease period, we ever manner we please. After the

(I) 30 Bom. L.R. 1596.

(2) [1962) 3 S.C.R. 87~

CHAPSIBHAI ~. PURUSHO'ITAM (She/at, J.)

the shall, if we like, remove our building right from In case we remove our foundatiqn and vacate your land. structure before the stipulated period, we. .. shall be liable to pay to you, the rent for all the thirty years, as agreed to above."

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And further :

"In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms in this lease deed."

This part of the document undoubtedly gives the lessee the right to transfer by sale the leasehold interest. But, as already stated, a clause enabling the leasehold interest to be transferred does not render sucb interest heritable.

The effect of these clauses is that the first part of the docu ment ensures that the lessor cannot charge rent higher than the .agreed rent even if the lessee were to remain in possession after the period of 30 years. That part is conSistent with the lease being for an indefinite 11eriod, wnJch means for the lifetime of the lessee. The next part provides for the right to remove the -structures "after the lease period". The words "after the lease period" mean either at the end of the 30 years, or on the death of the lessee, because, it also says that if the lessee were to remove the buildings before the expiry of 30 years, he would have to pay the rent for the remainder of that period. This part of the document does not show the intention that the lease was to be a permanent lease. It merely ensures the right to remove the -structures if the lessee or his heirs so desired on the expiry of the lease period, i.e., either at the end of 30 years, or after the life time of the lessee. The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period In the event of the first con and continuing to occupy the land. tingency, the lessee's heirs would continue in possession till the expiry of 30 years and then remove the structures if they wished. In the case of the second contingency, the heirs of lessee would have the right to remove the structures on the deatb of In either event the right provided for is the right to the lessee. remove the structures. It is not a provision for the lease being heritable and its being consequently a permanent lease. Thus, ·the lease is for a period certain, i.e., 30 years and on the expiry of that period if the lessee still were to continue to pay the rent, for his lifetime. In the event of bis dying before that period, the benefit of the lease would enure to bis heirs till the completion of 30 years. They would be entitled to remove the structures either

the

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at the end of the 30 years if the Jessee were to die before the ex piry of that period or at the end of the Jessee's life were he to con tinue to be in possession of the leased property after the expiry of 30 years. But the lease did not create hereditary rights so that on the death of the Jessee his heirs could sue<;eed to them.

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In this connection it is necessary to note that; as translated in English, it would appear as if the document uses the pronoun 'I', meaning as if the Jessee, in the earlier part and the pronoun "we", meaning the lessee and his lieirs, in the latter part. Such from a translation, however, is not correct. We ascertained Mr. Ratnaparkhl who after looking at the original Marathi assur· ed us that the pronoun used throughout is ami, which means "we". a term often used in documents written in regional language for the executant instead of the singular 'I'.

In our view the lease before us is clearly distinguishable from that in the case of Sivayogeswara Cotton Press(') where the leasehold rights were in clear terms made heritable and where the Court held that cl. 04), though placed last in the document, governed all its terms. There is no provision in the present case comparable with such a clause. The lease was undoubtedly for an indefinite period which only means that it was to enure for the lessee's lifetime. Reference in it of the heirs of the lessee is. only for the limited purposes set out earlier and not for making the leasehold interests heritable. We do not find in the document words such as those in Sivayogeswara Cotton Press (') would com pel us to the conclusion that the lease was intended to be permanent.

That leads us to the second contention of Mr. Desai. Under s. 108(d) of the Transfer of Property Act, if any accession is made to the leased property during the continuance of a .lease, such If the acces accession is deemed to be comprised in the lease. sion is by encroachment by the lessee, and the Jessee acquires title thereto by prescription, he must surrender such accession to gether W'ith the leased land to the lessor at the expiry of the term. The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord. The plea of the appellant in the plaint in regard to an accession was vague and confused. Para 2 of the plaint simply stated that the said strip of land was part of plot No. 93, but was used by the appellant as a passage. Para 7 (a) of the plaint, how ever, used the words "accession to the leasehold rights of tjie plain tiff in respect of the nazu/ plot No. 94", but did not say that suchi

<O [196213 s.c.R. s76.

CHAPSIBHAI '· PURIJSll01TAM (She/at, J.)

accession came about as a result of or by means of adverse pos sessi.Qn. In para 8(a), which was inserted in the plaint by an amendment in 1959, an alternative plea was made that the said strip of land was part of the land under the lease. The written statement of the respondent denied the user of the said strip of land by the appellant and also the plea of accession thereof to the leased land. But the appellant's case was only that the build ing which his father had constructed extended upto the end of the western boundary of plot N!>. 94, with the result that (a) the eaves of tha.t building projected over plot No. 93 by about 2! ft., that its windows on that side opened on plot No. 93 and a drain was constructed by the side of the appellant's western boundary through which waste water flowed from that building. According to the appellant's case, the said strip of land, which without doubt forms part of plot No. 93, was used by the appellant as a pas sage for going to a well situate in plot No. 93. Plot No. 93, how ever, was an open plot until recently, except for a small structure on its northern side, so that there was no definite or well marked passage which was used by the appellant in order to reach the said well. The projection of the eaves or the opening of the windows on to the said strip of land were not asserted as acts of adverse possession or encroachment but as easementary rights. The appellant did not claim any right to the said well as admittedly the use of the said well for drawing water was with the consent of the lessor. Therefore, the use of the passage for going to the well would be incidental to the permissive use of the said well. As regards the drain, the appellant's evidence was that it passed partially through the said strip of land. Originally a kachha drain, it was made pucca upto a distance of 32 ft. in 1923. No width of it, however, was shown. Obviously, there can, there fore, be no adverse possession over the whole of the 4 ft. wide strip of land.

The Letters Patent Bench has pointed out three circumstances as emerging from the evidence wllich clearly negative the case of accession by adverse possession : (!) that the original plot was given two numbers, 94 and 93 in 1929, plot No. 93 being shown as commencing from the western wall of the appellant's building, (2) that no protest was ever made against such a demarcation by the appellant or his father, and (3) a clear admission by the appel lant in cross-examination that according to him the said strip of land was covered by the lease dee4 and was not an acquisition over and above the leased land Ul)der that deed.

Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. But at the stage of the evidence, no serious attempt was made by the appellant to estab lish accession by adverse possession. On the contrary, the appel-

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lant sought to make out a case of easementary rights by prescrip· tion, a case incompatible with the claim of adverse possession where a party claims title over the land of another as his own and therefore there would be no dominant tenement claiming a righ.t by prescription over a servient tenement. In this state of the evidence the Letters Patent Bench, in our judgment, was right in rejecting the claim of accession which the learned Single Judge had erroneously accepted.

As regards the appellant's claim to the easementary rights, assuming that a lessee can claim such rights over an adjacent pro perty belonging to his lessor, s. 15 of the Easements Act requires that the access and use, on the basis of which an easement is claimed, must be as and by way of easement and without interrup· tlon for a period of 20 years. The enjoyment must be, in other words, as of right and not permissive either under a licence or an ) a Full Bench In Abdul Rashid v. Brahman Saran(1 agreement. of the Allahabad High Court held, on the principle embodied in s. 12, that the possession of a tenant being in law the possession of his landlord, the tenant cannot acquire by prescription an ease ment in favour of his holding except on behalf of his landlord. The Full Bench, however, made a distinction between an ease mentary right· of way and an easementary right of light and air mentioned in the first two paragraphs of s. 15, and held that though a lessee of land, who is the owner of the building on such land, ;:annot acquire by prescription an easement of a right of way or one to flow water over another land of the lessor, so far as the use of light and air or support for his building is concerned he is the owner of the building and may under the first two para· graphs of s. 15 acquire such easements as he would not acquire them for any one except himself under s. 12. Th.is decision was followed in Haji Abdulla Barron v. Municipal Corporation, Karachi(~. But the High Court of Bombay differed from the Allahabad High Court holding that the distinction in English law arising from the language of ss. 2 and 3 of the Prescription Act, 1832 between an easement of light and air on the one hand and of easement of way on the other, did not hold good under the Easements Act as no such distinc tion is made in ss. 4 and 12 of the Act, that it is under s. 12 that an easement is acquired and not under s. 15 which provides for not the persons who can acquire easementary rights but the me thod by which they can be acquired, and therefore, the principle laid down in ss. 4 and 12 would apply, namely, that if the lessee acquires a right to light and air, he does so on behalf of the owner and therefore he cannot acquire it on behalf of the owner

in Ambaram v. Budhalal(')

(I) J.L.R. [1938] All. 538.

(2) A.I.R. 1939 Sind 39.

(3) [1943] l.L.R. B~.n. 690.

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3'9·

as against such owner. There is th.us clearly a conflict of view A between the two High Courts. It is, however, not necessary to resolve this conflict in this case as the question of easements in the present case can be disposed of in another way.

Ch. IV of the Act deals with the disturbance of easements· and s. 33 therein provides that the owner of any interest in the dominant heritage or the occupier of such heritage maiy institute a suit for the disturbance of the easement provided that the dis turbance has actually caused substantial damage to the plaintiff. Under Explanation II read with Explanation I to the section, where the disturbance pertains to the right of free passage of light passing through ihe openings to the house, no damage is substantial unless the interference materially diminishes the value of the dominant heritage. Where the disturbance is to the right of the free passage of air, damage is substantial if it interferes materially with the physical comfort of the plaintiff. In Raya chand v. Maniklal (1)' it was held that an easement by prescrip tion under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hos tile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescrip tive acquisition of the right. Therefore, if the owner of a domi nant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a rtght of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on some one else's property and not as an incident of his own ownership of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement.

In his evidence, the appellant did not claim the right of pas sage or of light and air or of draining his waste and rain water over the said strip of land as rights over the respondent's property. On the contrary, he made it clear that the said strip of land fell

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under the document of lease. "I have a right on both the proper ties under the lease dead itself", he declared in his evidence, and added, "whatever rights I have acquired are under the lease deed itself and not afterwards". His claim that the strip of land was included in the leased land could not succeed because he had to admit that although two different municipal numbers, 94 and 93. were given as early as 1929 to the portions of the land, 94 to the portion under his possession, and 93 to that under the possession of the respondent, no complaint was ever made to the municipality or any other authority that the strip of land which he claimed to be covered under the lease should be included in his plot, namely, No. 94. In 1940, and again in 1955, when transfer deeds in respect of plot No. 94 were executed by hi'm, the area mentioned therein was described as measunng 5182 sq. ft., which would not include the strip of land fonning part of plot No. 93. Having thus failed in his claim that the said strip of land was acquired either as acces sion or as one covered by the lease deed, he could not tum round and successfuly claim that he had during the requisite period exer cised rights over it on the footing of an owner of a dominant tene ment exercising those rights over a servient tenement of another.

Assuming, however, that the said strip of land was used by him all a passage, the evidence clearly showed that it was pennis sive. There was evidence of a ·permission having been asked for from the respondent's father by the appellant for installing a hand pump over the respondent's well in plot No. 93. If the appellant. and previously his father, were pennitted to draw water from that well, the use of the well for drawing water and. of the strip of land as a passage for going to the well was clearly pennissive and not as an open hostile use over the lessor's property. The appellant himself admitted that his father had taken a portion of plot No. 93 on lease paying separate rent therefor at Rs.45/- a year, and had put up thereon a tln-shed which stood there from 1935 to 1941. It is clear that the strip of land was allowed to be used as a passage both to the well and the said tin-shed. He admitted two letters, dated September 30, 1958 and December 4, 1959, having been writ ten by him to the respondent both relating to rent due by him in respect of the sa_id land on which the said tin-shed stood. On these facts it is impossible to sustain the right of passage over the said strip of land as an easementary right by prescription for a con tinuous period of 20 years.

As to the light and air through the windows on the western side, it is clear from Explanations II and III to s. 33 that to con stitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air Is Jess than before. There must be a substantial privation of light. the house uncomfortable, enough to render the occupation of

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according to the ordinary notions of mankind. See Coils v. Home and Colonial Stores('\.

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The plan produced in evidence shows that the central part <>f the appellant's building has five windows on the ground floor, :five in addition to one smaller window on the first floor and four <>n the second floor. All these windows are in the rear side of the building and open out on to the said strip of land. There can be no doubt and the plan shows clearly tbat as a consequence of construction by the respondent, there would be a deprivation, partially though it would be, of light and air previously enjoyed by the appellant through these windows, especially as they are on the western side. On the ground floor, all the five windows are affected. On the first floor, only three windows are affected, and that too partially. On the second floor, none of the four windows is affected at all. Thus, so far as the ground and first floors are concerned, the appellant would not have the same amount of light and air as before. But the evidence shows that there are openings, doors and windows, on each of these floors on the front side, i.e., on the eastern side. There was some evi dence also that the ground floor bad so far been used as a godown or a store room, though the appellant asserted that he had been using it also as a living room. No attempt, however, was made on behalf of the appellant to establish that the obstruction caused by the respondent's construction had been such as to amount to a substantial privation, so as to render occupation of the house by him uncomfortable. In the absence of such proof he was rightly nonsuited by the High Court.

As regards the drain, we say nothing, as part of the appel lant's claim in regard to it has been allowed by the High Court and theie are no cros!Hlbjections against it by the respondent.

In the view that we talce, the appellant cannot succeed on any one of the three questions raised by his counsel. The appeal, therefore, fails and has to be dismissed with costs.

V.P.S.

Appeal dismissed.

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(I) [1904] A.C. 179.