1. The applicant is living in Mahmoodabad on a house constructed by him in 1958. In 197J, 12 years after he had completed the construction of his house, the respondent, who was occupying an adjoining plot, started constructing a wall. As, according to the applicant, that wall interfered with his right of "anobstructed passage of light and air", he has filed a suit in the Court of the Third Civil Judge, Karachi for a declaration that he is entitled "to (the) free and peaceful enjoyment of easements, including light and air" of his property, and for a permanent injunction to restrain the respondent from raising his wall or interfering in any other way with his easements of light and air.
2. Together with the suit, he had filed an application for an interim injunction to restrain the respondent from interfering with his rights. The respondent opposed this application and pointed out that both he and the applicant were unauthorised squatters on Government land. As a corollary of this statement, he further admitted that he had not obtained municipal approval for the construction of the wall he was trying to raise. The learned Civil Judge held that the respondent's construction was illegal because it was without the K. M. C.'s approval, therefore he granted the applicant ad interim injunction against the respondent. The respondent then filed an appeal against this order of the learned Civil Judge in the District Court, Karachi which was heard by an Additional District Judge. Unlike the trial Court, the learned Additional District Judge inspected the site and found that the wall being constructed by the respondent was on the back side of the applicant's plot. He therefore appears to have taken the view that the balance of convenience was against the applicant. He also relied on the fact that the applicant had not acquired any easement as claimed by him, therefore he allowed the respondent's appeal by his order dated the 26th May 1970. The applicant then filed a Revision against this order of 26th May 1970 which has now come up for hearing before me.
3. The applicant has based his claim in the suit on the Easements Act, but at the outset I have to point out that both he and the respondent are squatters on Government land, having entered it without the Government's permission. As I was dictating this order, Mr. Dodeni stated that the applicant was paying taxes to the K. M. C. As the land which he has occupied belongs to the Government and not to the K. M. C. the payment of taxes to the K. M. C. is completely irrelevant. Both the applicant and the respondent are therefore trespassers, and the obvious question for consideration is whether a trespasser can invoke the provisions of the Easements Act.
4. Mr. Dodani submitted that the applicant was entitled to file a suit under the Easements Act and referred me to the definition of an easement in section 4. This section defines an easement as "a right which the owner or occupier of certain land possesses . . . ." According to Mr. Dodani, the applicant was an occupier within the meaning of section 4, therefore he was entitled to file the suit.
5. I agree with learned counsel that the word "occupier" can include a trespasser, but the submission is advanced with reference to land which has abmittedly not acquired any easement, therefore, if in such a situation, the word "occupier" is construed to include a "trespasser", it will put a premium on wrong doing and lead to injustice, and such a construction is to be avoided unless the intention of the Legislature is very clear. But the section deals only with easement rights possessed by an occupier, and a trespasser on land which has not acquired any easement cannot possess any easement rights by the mere fact of his illegal occupation of land, because the prescriptive period for acquiring an easement is 20 years, which is much longer than the prescriptive period for acquiring title to land by adverse possession. Additionally section 4 must be read with section 12, which deals with the manner in which easements are created. Section 12, in so far as it is relevant, reads as follows :- "An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf by any person in possession of the same."
6. The words "or on his behalf" are significant, and would be redundant if the word "occupier" in section 4 was wide enough to include a trespasser. On the other hand, these words clearly indicate that when an easement is acquired by a person other than the owner that other person must claim through the owner. As the two sections have to be reconciled, this appears to me to be a circumstance which militates against Mr. Dodani's argument. Additionally, as there is an ambiguity in the statute, it is not irrelevant to point out that the six illustrations to section 4, as well as the illustration to section 32, on which the learned counsel relied, relate only to owners. This is another circumstance against Mr. Dodani's construction of the word "occupier". Learned counsel then submitted that his argument was supported by a judgment reported in Dayal v. Gajja Mal . This judgment contains an observation that a trespasser is entitled to claim an easement, but as the learned Single Judge has neither considered the provisions of the Easements Act nor given any reasons for his view, the judgment is not of any assistance. However, the question is not free from doubt, and as Mr. Khurshid satisfied me that the revision must fail on other grounds, I do not need to decide this question.
7. Mr. Dodani admitted that the applicant had not been in possession of the house, for which he claimed an easement, for the statutory period prescribed in section 15, therefore the learned Additional District Judge had allowed the respondent's appeal on the ground that the applicant had failed to make out any cause of action against the respondent and Mr. Khurshid supported this finding. Section 15 prescribes that an easement shall be created by uninterrupted user for 20 years in ordinary cases and 60 years when the servient land is owned by the Government. In the present case, the applicant's claim is against land owned by the Government, and he has been in possession of his house for only 12 years. If, in these circumstances, his claim is allowed, it would mean that a person, who has an inchoate right, can utilise the machinery of the Courts for1 perfecting that right against others. Such a result would be contrary to all principles of justice and equity and, as observed by Baggallay, L. J. in Bonner v. Great Western Railway Co. : it seems to be contrary to every principle on which the Court acts in cases of this kind that a person who has no right should obtain an injunction to restrain any body else from doing that which will interfere with his acquiring a right, by reason of his being unmolested for a certain length of time."
8. I am in respectful agreement with this view, and any other view would be contrary to the proper administration of justice.
9. Mr. Dodani however submitted that his case was supported by authorities, and in deference to learned counsel's industry I shall briefly refer to the cases relied on by him. In Acchanma v.
10. Vanamala the Madras High Court held that a plaintiff could demand the removal of a wall which obstructed light even before the expiry of the statutory period of 20 years. The judgment does not contain any reasons for the proposition laid down in it, and, with great respect, I demur to the view that an inchoate right should be enforced by the Courts as if it were a right. But Acchanma's case was followed by the Madras High Court in Kunhi Beavy v. Gopalakrishna . This judgment supports Mr. Dodani's argument, but the plaintiff in the judgment cited was the owner of the land for which he claimed an easement. However the law on the subject is not well settled, and the position of an owner may well be different from that of a trespasser; as the applicant in the present case is a trespasser, I would only say that the judgment cited is distinguishable and the principle in it should not be extended to plaintiffs who do not claim their rights through the owner of the dominant heritage. However, Mr. Dodani's argument is fully supported by a judgment of a Division bench of the Madras High Court reported in Naidu and others v. Surayanarayana and another in which the learned Judges followed Acchanma's case and observed :- "The law is well settled that if the plaintiff was in possession of land for less than the statutory period he would be entitled to protect that possession against any one but the true owner. We do not think that there is any distinction in principle because the right now claimed to be protected is in the nature of an incorporeal right in process of acquisition. Incorporeal rights are in many cases capable of possession just as much as rights to corporeal hereditaments. In Jaffies v. Williams, it was held by Baron Parke that a trespasser on adjoining land was "not entitled to cause a subsidance by working mine to the prejudice of the mines in the plaintiffs' enjoyment though he had not acquired a title to the same."
11. Thus, according to the learned Judges, the rule about jus tertii had to be extended to claims for light and air on the basis of the judgments of the English Courts about claims for the right of support. With great respect, the view of the learned Judges of the Division Bench about the English law is inconsistent with the observations of case, which I have quoted, therefore the question is whether the rule about jus tertii, which relates to claims for physical possession of land, should be extended indiscriminately to claims for incorporeal rights. Whatever be the position about claims for support, in my humble opinion, the rule aboutis not based on so strong an equity as to justify its extension to claims for light and air. This is also implied in Bonner's case. Additionally, I may observe here that the view in Naidu's case was criticised by a later Division Bench of the Madras High Court in Narasappayya v. Canapathi Rao and was expressly disapproved by the Andhra Pradesh High Court in Sanjeevappa v. Anjanappa . In that case, after examining Acchanma's case and Naidu's case, the learned Judges of the Andhra Pradesh High Court observed in para. 9 of their judgment : "An inchoate right is not protected by law even against a stranger so long as the right remains incomplete and does p not ripen into an easement. That being so, no action lies for infringing that right "till it matures into an easement."
12. This view is also consistent with the view of the English Courts and, in my humble opinion, the view2 3 4 5 6 7 taken in Acchanma's case and Naidu's case is not correct. I therefore agree with the learned Additional District Judge that, as the applicant had not acquired an easement, he had no cause of action against the respondent so that the respondent's appeal had to be allowed.
13. Finally, Mr. Khurshid stated that the Government was a necessary party to the applicant's suit and as it had not been impleaded, the suit was only fit to be dismissed, and in support of this argument he referred me to Lakshminarayana Chetty v. Hirachand . As an easement is a right against the servient land, it is obvious that its owner is a necessary party to any claim, and that was also the view in the judgment cited. I agree with that view and, as the applicant has not impleaded the Government, although he knew that the respondent was a trespasser on Government land, the suit is bad for non-joinder of a necessary party, and on this ground also the revision application must be dismissed.
14. The application is without merit and is dismissed, but as it turned on questions of law which have not been construed by this Court, I do not make any order as to costs. AIR 1928 Lah. 709 24 CAD 1 5 M L J 24 AIR 1953 Mad. 849 I L R 34 Mad. 173 I L R 38 Mad. 280 AIR 1965 Andh. Pra. 174 AIR 1960 Mys. 317