1988 PLP 1619 (CLC)

However, Explanation I provides that nothing is an enjoyment within the meaning of the above section, when it has been in pursuance of an agreement with the owner or occupier of the property over which the right is claimed and that the agreement indicated that no right of easement has been granted and if it was granted it was for a limited period or subject to a condition on the fulfilment of which it is to cease. Whereas Explanation II lays down that nothing is an interruption within the meaning of the above section unless there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant; and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made. 5(a). Reverting back to the above submissions of the learned counsel for the parties, it may be pertinent to take up the first two submissions of the learned counsel for the parties together, as they over lap each other. It is an admitted position that upto 12‑4‑1940 the property was jointly owned by three brothers. They partitioned the same by the aforesaid agreement dated 12‑4‑1980 (Ex.ll). Clause 2 of the said Agreement has direct bearing on the controversy in issue and, therefore, it may be reproduced hereinbelow which provides as follows:‑ "

2. That if for the purpose of making sub‑divisions self -contained and/or meeting the requirement necessary for the sub‑divisions being sanctioned by the Municipal and Government authorities or even otherwise it becomes necessary to lay and separate drainages connections, install any separate or joint water connections, pipes or pumps or to put up partition walls between one sub‑division and another or close up the open passages or carry on any other item of work for the said purpose, the same will be done and carried out on the joint expenses of the parties, each being liable to pay one‑third share of such expense." It may also be advantageous to reproduce hereinbelow the three brothers' joint statement filed by them with the City Deputy Collector's Office for mutation of their names which reads as follows:‑ We, Fazalbhoy Mohamedally, Taharally Mohemedali and Ebrahimji Mohomedali, Boras, residents of Serai Quarter on solemn affirmation state that we have sub divided plot No.S.R.7/41 in three portions viz. (1) 7/41 measuring 801 sq. yds. (2) S.R. 7/41 measuring 806 sq. yds. (3) S.R. 7/41 measuring 910 sq. yds. as mentioned by the Municipal Corporation, Karachi under their Letter No. L.C. Sub 108/40 dated the 8th June, 1940. Under an agreement, dated 12th April, 1940 we have partitioned the above plot amongst ourselves who are the only owners and under this agreement. Plot No.41/1 measuring 801 square yards, comes to the share of Ebrahimji Mahomedally. All the three of us have separate and individual possession as* stated above. We therefore pray to make the entries accordingly. (Sd.) Fazalally MohoMedalli. (Sd.) Taherally Mahomedalli. (Sd.) Ebrahimji Mahomedalli." A plain reading of the above quoted clause 2 of the Agreement and the joint statement indicates that each of the portions was separate and independent which was in possession of each of the brothers. It is also evident that it was also inter alia contemplated that the partition walls could be raised between the portions in order to close the open passage. It is also apparent that none of the three brothers claimed any easement right against the other under the above Agreement or statement. 5(b). Mr. Iqbal Kazi has referred to the following judgments: (i) Muthu Goundan v. Anantha Goundan, A I R 1916 Mad 1001, in which a Division Bench of the Madras High Court held that mere verbal disputes by a servient owner, which do not cause interruption or obstruction to the enjoyment of an easement by the dominant owner, do not prevent its enjoyment from being peaceable so as to bar the acquisition of a prescriptive title thereto. (ii) Kurvarbai and others v. Jamsedji Rustamji Daruvala and others, A I R 1919 Bom.

94. In the above case a Division Bench of the Bombay High Court inter alia held that obstruction or opposition to the enjoyment of a right of easement must find expression in something done on the servient tenement itself and that mere protest on the part of the servient owner does not amount to interruption. (iii) Natwarlal Gordhandas and others v. Dansinhji Vakhatsinhji, AIR 1951 Saurashtra 35, in which a learned Sigle Judge of the above High Court held that in order to make an interruption effective it is necessary, (i) it must cause actual cessation of the enjoyment of the claimant, (ii) the obstruction causing the interruption must have been placed, provided or raised by some one other than the claimant himself and (iii) the claimant must be proved to have submitted or acquiesced in the interruption for one year after the claimant had notice thereof. (iv) Mahadevamma and another v.

31. Nanjappa Setty and others, AIR 1973 Mysore

254. In the above case a learned Single Judge of the Mysore High Court while construing Section 15 held that the right of way over another's land cannot be claimed unless that right is shown to have been exercised as of right for the statutory period and that long and consistent user gives rise to a presumption that such user had been as of right. (v) Ali Ahmed v. The State, 1970 S C M R

620. In the above case the Hon'ble Supreme Court of Pakistan while declining leave in a petition for leave against the Judgment of erstwhile High Court of West Pakistan, Lahore with reference to section 15 of the Easements Act and section 26 of the Limitation Act observed that the contention that opposite party could not be deemed to have acquired prescriptive right to draw water from well claimed by A as his own in absence of evidence that they had used water openly and as of right without any interruption for 20 years, was without any substance in view of absence of any evidence that an excluded opposite party from drawing water or interrupted the same. (vi) Ismail v. Fordil Khan, PLD 1958 (W.P.) Lah. 337, in which a learned Single Judge of the Lahore High Court held that where a plaintiff claimed a right of easement to irrigate his land from the defendant's land and proved user for twenty years, but as an alternative plea also claimed ownership in the well, which plea was subsequently withdrawn would not defeat such right. 5. (c) On the other hand Mr. Mohsin Tayyebally has placed reliance on the following cases: (i) Kedar Nath v. Sohan Lal and others A I R 1914 All. 323, in which a Division Bench of the Allahabad High Court while construing section 15 of the Easements Act held that where the user is interrupted the user for a further full period of 20 years must be shown in order to establish a right of easement under section 15 and that the period of user prior to the interruption cannot be added on. (ii) Haji Sir Abdoola Haroon v. Municipal Corporation, Karachi, AIR (30) 1943 Sind 17, in which the facts were that the Plaintiff filed suit in 1935 for declaration of his rights of easement of light and air windows which were built in 1917. The above suit was dismissed. The Plaintiff filed second suit. It was held by a learned Single Judge of the Sind Chief Court that the period subsequent to the suit of 1935 could not be added to the period which had elapsed upto the disposal of the above suit for the purpose of period of easement and that the second suit was also barred by res judicata. (iii) Dakshina Ranjan Choudhury v. Surendra Lal Das Gupta, AIR 1936 Cal. 310.In the above case a Division Bench of the Calcutta High Court held that the period of user after the institution of the suit cannot be added for the purpose of acquiring by prescription a right of easement and that such user is not peaceable but disputed after the institution of the suit. (iv) Lallubhai Pragji v. Bhimbhai Dajibhai reported in Bombay Law Reporter Vol. 30, 1928 page 873, in which a Division Bench of the Bombay High Court while construing section 15 of the Easements Act held that filing of a suit by servient owner for obstructing the easement prescription put an end to the running of prescriptive period and that the enjoyment subsequent to the suit does not give rise to prescription.

6. From the above cited cases, it is evident that once the period of prescription of the right of easement commences in terms of section 15, it is not interrupted unless there is some physical obstruction for the prescribed period by the servient owner of the property and that mere verbal protest would not be an interruption in terms of explanation II to section 15 of the Easements Act. It is also apparent that if a party files ‑a suit for claiming easement right and his suit is dismissed and, thereafter, he‑ files another suit for claiming the same easement right, he cannot add the period prior to the dismissal of the first suit is a period for computing the period of prescription. The period would have to re‑commence from the following day from the date of dismissal of the suit. It is also clear that the User by the dominant owner of the, property should be as of right and not under permission of the servient owner of the property. In the above case if we were to hold that under the above Agreement (Ex.11) the user of the passage till the construction of the partition wall was merely permissive, Explanation I to section 15 quoted hereinabove will be attracted to and not Explanation II, which has been relied upon by the learned counsel for the appellants, Mr. Iqbal Kazi, However, he submitted that the respondents had not pleaded in the plaint that the user of the passage by the appellants and their predecessor‑in-interest was permissive and, therefore, a new case cannot be allowed to be set up. We are unable to accept the above contention as the above agreement was expressly pleaded and relied upon in the plaint by the respondent No.l. The question, whether under the above agreement the user of the passage allowed was permissive or as of right, is a question of law depending upon the construction of the Agreement. We are, therefore, inclined to hold that under the above Agreement Exh.11 the user of the passage of the portion of the property bearing No‑.41/3 by the occupants of portions, bearing Nos.41/1 and 41/2 was permissive till the time the partition wall was to be raised. Furthermore, the factum that Fazalbhoy predecessor‑in‑interest of the appellant filed Suit No.85 of 1948 on 28‑2‑1948 for claiming easement right in relation to the passage in dispute but withdrew the same on 21‑7‑1949 without permission to file fresh suit would debar the appellants from computing the period for the purpose of prescription prior to the dismissal of the suit. However, it was submitted by Mr. Iqbal Kazi that though the appellant may not be entitled to file a fresh suit or to reckon the period prior to withdrawal of the aforesaid suit, he is entitled to defend the suit filed by Respondent No.l and plead the period of prescription. In our view, it is not necessary to examine the above submission in detail because of our finding that the use of the passage was permissible. However, it will suffice to observe that the factum of filing of the aforesaid Suit by the appellant's predecessor‑in‑interest indicates that he was some way interrupted by respondent No.l's predecessor‑in-interest.

7. As regards the third submission of the learned counsel for the parties, it may be observed that it is true that the appellants or their predecessor‑in‑interest were not a party to the suit which was decreed by the Hon'ble Supreme Court on 20‑5‑1981 but the fact remains that the dispute related to the same property and. involved interpretation of the above Agreement (Exh.11). The relevant observations are at pages 179, 181 and 183 of the paper book which read as follows:‑ "Further, the High Court, under a misconception, held that the building .was so 'constructed that in order to approach the 'rear tenaments' of plot Nos.41/1 and 41/2 a passage had to be carved out on portion No. 41/3 which ever since has been used for that purpose. The ‑fact of the matter was that the passages were converted into godowns and, therefore, a Ibrahimji and not objected to the use of the passage, on his portion for ingress and egress of the residents of the back portion, it could not be regarded as a right of way as of necessity. At best it amounted to a licence which must be regarded to have terminated on the sale of the property as such right was not recognised in the sale‑deed. Further, Ibrahimji in his evidence, has stated that he did not inform the vendee about the existence of the right of way which clearly militated against such user.

Accordingly the intention was manifest that no right of way was intended over the sub divided portion No.41/3 which was further supported by the sanctioned plan

"As for clause (f), clause (2) of the agreement (Exh.l), the sanctioned plan and the statement of the three brothers, beyond doubt, convey that each sub‑divided portion had a separate opening on Campbell Street which forecloses its application. As the decision of this appeal rests on factual basis, it is not necessary to, otherwise examine the legal implication of these clauses. " A plain reading of the above quoted observations indicates that the Hon'ble Supreme Court has held that under the above Agreement Exh.11 at best it was a permissible use of the passage allowed by one brother to the other two brothers and that there was no intention to convey any right of way. The factum that the appellant was not a party to the above appeal in the Supreme Court in our view is not relevant for the purpose of referring to the interpretation placed by the Hon'ble Supreme Court on a document which is also subject‑matter of this appeal. Even an obiter dictum of the Hon!ble Supreme Court deserves highest respect. Furthermore, we are also of the same view which found favour with the Hon'ble Supreme Court as to the construction of the Agreement (Exh.11).

8. For the aforesaid reasons, the appeal has no merits, and therefore, it is dismissed but there will be no order as to costs. H . B . T . /F‑39/ K ‑ Appeal dismissed.