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PETITIONER: CHAPSIBHAI DHANJIBHAI DANAD

       Vs.

RESPONDENT: PURUSHOTRAM

DATE OF JUDGMENT05/04/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D.

CITATION:  1971 AIR 1878            1971 SCR  355

ACT: Lease--Period indefinite but no heritable rights to lessee’s heirs-If permanent lease. Transfer of Property Act (4 of 1882), s. 108  (d)-Accession, proof of. Easements   Act  (5  of  1882),  ss.  12  and  15-Proof   of acquisition of easement right-Proof of easement of right  of passage-Easement right to light and air-Deprivation  of-When actionable.

HEADNOTE: 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  of 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 he so desired.  It  gave  the lessee the right to transfer by sale the leasehold interest. In  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 of land was used  by  the  appellant for passage for  going  to  a  well situated in plot no. 93.  The appellant’s father had taken a portion  of  plot  no. 93, including the  strip,  on  lease, paying separate rent therefore and put up thereon a tin shed which  stood there from 1935 to 1941.   Sometime  thereafter the  respondent commenced construction on survey no.  93  in close vicinity to the appellant’s  plot On  the  questions: (1) Whether the lease  was  a  permanent lease; (2) there was an accession in respect of the strip of land  within  the meaning of s. 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 appellant  had acquired by prescription, rights of  easement of light and air and of passage over the strip of land under

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s. 15 of the Easements Act, 1882. HELD:     (1)  The  question  as  to  whether  a  lease  was permanent  or  for the life time only of  the  lessee,  even where  it was for building structures 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 different consequences.   The  lease  may provide a fixed period and then include a provision that  in the  event  of the lessee dying before the  expiry  of  such period  his heirs would be entitled to have the  benefit  of the lease for the remainder 336 of the period.  In such caes, 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 regarded as lease for an indefinite  period and as such for the lessee’s life time.  In such a case,  if the  lease  contains a provision 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] In the present case, since the lessee was entitled to remain in possession 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 the 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  structures 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 lifetime 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 and  continuing to occupy the land.  In the event of the first  contingency, the lessee’s heirs would continue in possession till  expiry of  30 years and then remove the 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 of the lessee.  In either event the right provided for is  the  right  to  remove the structures.   It  was  not  a provisions  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  Catton Press v. M. Panchaksharappa, [1962]  3 S.C.R.  876,  Lekhraj Ray v.  Kunhya Singh, 1876-77  L.R.  4

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I.A.  223  Vaman  Shripad  v.  Maki,  I.L.R.  4  Bom.   424, Donkangonda  v. Ravanshivappa, 45 Bom.  L.R. 194,  Bavasaheb v.  West  Patent  Co. 56 Bom.  L.R. 61 and  Abdul  Rahim  v. Sarafalli, 30 Bom.  L.R. 1596, referred to. Sonabai  v. Hiragayri, 28 Bom.  L. R. 552, Runge Lall  Lobes v. Wilson, [1899] I.L.R. 26 Cal. 204, Promoda Nath Roy v. S. Chowdhry,  [1905]  I.L.R.  32  Cal.  648  and  Navalram   v. Javerilal, 7 Bom.  L.R. 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 accession is  deemed  to  be comprised in the lease. [346F] 337 In  the present case, the appellant made no serious  attempt to establish accession by adverse possession. [347H] (a)  When the plots were separately demarcated including the strip  in the respondent’s portion no protest was ever  made against  such a demarcation by the appellant or his  father. [347G] (b)  The appellant made a categorical statement in evidence, that according 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], (c)  The appellant sought to make out a case of  easementary right by prescription, a case incompatible with the claim of adverse possession [348A-B] (3) Under ss. 12 and 15 of the Easements Act an easement  by prescription  can be acquired by assertion of hostile  claim of certain rights over another man’s property.  In order  to acquire  the  easement the person who  asserts  the  hostile claim must prove that he had, the consciousness to  exercise that hostile claim on a property which is riot 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 subsequently 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 someone else’s property and not as an  incident of his own ownership of that property. [349D-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 to light and air through. the windows on the western side the appellant could succeed only if there was a  substantial privation  of light, enough lo render the,occupation of  his house uncomfortable according to ordinary notions of mankind [350H   351IA] In  the present case, the plan showed that as a  consequence of  construction 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 amount  to  substantial  privation  so  as  to  render   the occupation of the house by the appellant uncomfortable. [351 C-E] Rayachand  v.  Maniklal,  I.L.R. [1946]  Boni.  184  (F.B.), approved Colls  v.  Home  and Colonial Stores,  [1904]  A.  C.   179, applied

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    [The  question,whether  under  ss.  4.and,12  of   the, Easement  Acta lessee can acquire a right to light and air as against the owner, left open] [349A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: CiviL’ Appeal No.’435     of 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. 22-I S C. India/71 338 S. T. Desai and A. G. Ratnaparkhi for the appellant. Rameshwar  Dial,  Jaishi Ram Goel and A. D. Mathur  for  the respondent. 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 contained,  iner alia, the following :               "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 shall also not pay it,               myself  and  my heirs shall use this  land  in               whatever  manner we please.  After  the  lease               period,  we  shall,  if we  like,  remove  our               building_ right from the foundation and vacate               your  land.  In case we remove  our  structure               before  the  stipulated period,  we  shall  be               liable  to pay to you,, the rent for  all  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 vicinity to the western boundary of the leased land to house an industry, called Sudha Industries. The  appellant  filed the suit in 1958, out  of  which  this appeal  arises, urging that the said lease was  a  permanent lease,  that  buildings had been constructed on  the  leased land partly in 1906, and the rest in 1909 and 1922, that the said  plot  of  land was subsequently  demarcated  into  two survey  numbers, 94 and 93, that a strip of land, 4  ft.  in width  and measuring 650 sq. ft. immediately to the west  of survey No.,94 and forming part of survey No. 93 was  covered by  the said lease and was in his possession as part of  the leased  land or was acquired by him as  accession.   Pending the suit the appellant amended the plaint asserting that the portion  let out under the said deed of lease was  5850  sq. ft. in the aggregate, which included 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. 339 Out  of the structures put up by the appellants father,  the

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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 2-1/2 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  aforesaid  windows.   He   had   other complaints  also to make and claimed 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 bad 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 failing 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 buildings thereon and being  transferable, could at best be for the lifetime of the lessee, the  appel- lant’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, appellants 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 a,%  such  a  lessee the use of the said strip  of  land  to enable  him access to the said leased portion of survey  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 suit,  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 for carrying said  drain over  the  decree the appellant filed an appeal  before  the respondent  also filed cross-objections.  The dismissed  the appellant’s  appeal  with the result  that  the  appellant’s waste and rain water through the said strip of land. Against that judgment and District  court District Court and allowed the   cross-objections  suit was dismissed.  A second appeal filed  by  the appellant in the High Court was heard  by  a Single Judge, who, held that the said lease was a  permanent lease,  that  the appellant had acquired the said  strip  of land as accession to the leased land and as a consequence of those findings 340 granted a mandatory injunction directing removal of any con- struction  or  projection by the respondent over  the  said- :strip of land.  In view; 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.

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Aggrieved by the:.judgment and decree passed by the  learned Single  Judge, the respondent filed a letters patent  appeal wherein  three  principal  questions  were  canvassed-,  (1) 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 answered all the, three questions, against  the appellant  holding  that the said lease being  a  lease  for building  purposes  and  transferable, was a  lease  for  an indefinite  period, and therefore, for the lifetime 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 construction  was such-  as to give him an actionable claim against  the  res- pondent.    The  result  was  that  except  for   the   said drain,theBench dismissed the appellant’s suit. Mr. Desai for the appellant raised three contentions in sup- port  of the appeal; (1) that on a proper interpretation  of the document of lease. the lease was a permanent lease, (2) that there was an accession in respondent of the said  strip of  land within the meaning of s.  108,(d) of the  Transfer of  Property  Act, 1882, and therefore’. 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 Judge construed the document  to mean (a) that the ’lease was for building purposes, (b) that It- was in the first 341 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 "the one which provides for the leasehold  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 transferable, 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,(1) was that such a  lease is to be construed 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.  Hiragavri,  (2)   but subsequent  decisions of that High Court had dissented  from that   decision  and  had  consistently  held   leases   for indefinite periods as leases for the lifetime of the lessee. (see  Donkangonda  v. Revanshiddappa (3).  In  Bavasaheb  v. West  Patent  Co.(4)  Sonabai’s  case  (2)  was  once  again

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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 (1) 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 stipulated 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 the 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  stipulated  rent did’ hot mean that the 1ease. was for perpetuity.  It  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  that  tenancy  rights   were transferable,, as provided (1) I.L.R. 4 Bom, 424.            (2)  28 Bom.L.R. 552. (3) 45 Bom.  L. R. 194. (4)  56 Bom.  L.R.61 342 by s. 108(j) of the Transfer of Property Act, did not  mean that they were also heritable. In  two of its decisions, Runge Lail Lobes v. Wilson(1)  and Promada  Nath Roy v. S. Chowdhry(2) the Calcutta High  Court took  the view that where the purpose of the lease  was  for constructing buildings, the court could presume, even though the document did not in terms so provide, that the lease was intended  to be permanent.  To the same effect was also  the decision in Navalram v. Javerlial(3).  On the other hand  in Lekhraj  Roy v. Kunhya Singh(4) where the lease was for  the period  of the continuance of ,the lessors’ mokurruri,  the Privy Council held that if it could be ascertained what the term  was.  the  rule of construction 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 words showing an intention to grant a  hereditary interest.   In Abdul Rahim v. Sarafalli (5) 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  terms  similar to those before us.   It  was  for building  a  factory and although it 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. The  conflict of opinion amongst these decisions  has  since then  been resolved by the decision in  Bavasaheb’s  case(6) having   been   expressly   approved  by   this   Court   in Sivavogeswara Cotton Press v. Panchaksharappa (7) The  lease here was for building factories and other structures and was

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for  a  period of 20 years certain.  It,  however,  provided that  the lessee could continue to 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. (14) of the lease in addition provided that it   was  to  be  binding  "on  me,  my  heirs,   executors, administrators, successors and assigns, as well as on.  your heirs,    executors,    administrators,    successors    and assigns......... The question was as to the (1) [1899]I.L.R.26 Cal.204.(2) [1905] I.L.R. 32 Cal. 648. (3) 7 Bom. L. R. 401.    (4) [1876-77] L. R. 4 I. A. 223.      (5) 30 Bom L. R. 1596.   (6) 56 Bom. L. R. 61. (7) [1962] 3 S. C. R.887 343 nature of the lease.  At page 885 .of the report, the  Court remarked  that cl. (14) was a very important  clause  "which though  coming  as  the  last clause  must  govern  all  the stipulations between the parties.  Thus the terms conditions of  the km 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  the  lessee".   The  Court  then  examined   various decisions of the different High Courts including  Navalram’s case  Promnada Nath Roy’s   case (2) and lastly,  Bavwaheb’s case (3).  As to the 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 whole,  that  if the  tenancy is for building 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 very same page, the Court distinguished  Bavagaheb’s (3) case on the ground that the lease there did not  contain a  provision  similar  to cl. (14) in the  case  before  it. Besides,  the  Court sought an additional  support  for  its conclusion  that  the lease was permanent in  the  provision which  stipulated that the rent would be Rs. 350 a year  for the first 20 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 lessee.  It  is clear  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.(4). Looking at the document (Ex.  P-4) as a whole. the lease 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 lessor  was  not  entitled  to increase.   But, though the lease is for building  structure and the period is indefinite there are at any rate no (1)  7 Bom.  L.R. 401. (2)  [1905] I.L.R. 32 Cut. 648. (3)  56 Bom.  L.R. 61. (4)  [1962] 3 S.C.R. 876. 344 express   words   indicating  that  the   leasehold   rights

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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 remove 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 to be permanent.  For, if  it was intended 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   indented  to  be  heritable  as  was  the   case   in Sivayogeswara  Cotton  Press (2).  The mere  fact,  however, 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 different consequences.  A lease  may provide a fixed period and then include a provision that  in the  event  of the lessee dying before the- expiry  of  such period,  his heirs would be entitled to have the benefit  of the lease for the remainder 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 upto the  expiry  of  the lease period.  If   the lease, on the other hand, were foran indefinite  period, and contain a provisions for 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, this 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 whatever  manner               we please.  After the lease period, we                      (1)      30      Bom.        L.R. 1596.               (2)[1962] 3 S.C.R. 876. 345               shall,  if we like, remove our building  right               from the foundation and vacate your land.   In               case  we  remove  our  structure  before   the               stipulated  period, we shall be liable to  pay               to you, the rent for all the thirty years,  as               agreed to above."               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

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be transferred does not render such interest heritable. The  effect of these clauses is that the first part  of  the document  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  period, which  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 lifetime 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  and continuing  to occupy the land.  In the event of  the  first contingency, 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  the  lessee would have the right  to  remove  the structures on the death of the lessee.  In either event  the right  provided for is the right to 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 his  dying  before that  period,  the benefit of the lease would enure  to  his heirs  till  the  completion of 30  years.   They  would  be entitled to remove the structures either 346 at the end of the 30 years if the lessee were to die  before the expiry of that pariod or at the end of the lessee’s fife were  he  to  continue 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 lessee his heirs could succeed to them. 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  lessee  in  the earlier  part and the pronoun "we", meaning the  lessee  and his heirs, in the latter part.  Such a translation, however, is  not  correct.  We ascertained from Mr.  Ratnaparkhi  who after  looking at the original Marathi assured 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(1) where the leasehold rights  were  in               clear terms made heritable and where the               Court  held that cl. (14), though placed  last               in the document, governed all its  There is no               provision in the present cast 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

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             and  not  for making the  leasehold  interests               heritable.   We  do not find in  the  document               words  such as those in  Sivayogeswara  Cotton               Press  (1) would compel 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 accession is  deemed  to  be comprised in the lease.  If the accession is by encroachment by  the  lessee, and the lessee acquires  title  thereto  by prescription, he must surrender such accession together with the  leased  land to the lessor it 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 go  long  as  the  km               continues  and afterwards for the  benefit  of               the  landlord  The 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,               however,used   the  word  "accession  to   the               leasehold  rights of the plaintiff in  respect               of the nazul plot No.     94", but did not say               that such (1) [1962] 3 S.C.R. 876 347 accession  came about as a result of or by means of  adverse               possession.  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  building               which his father had constructed extended upto               the  end of the western boundary of  plot  No.               94, with the result that (a) the eaves of that               building  projected over plot No. 93 by  about               21  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  withou t  doubt               forms  part  of plot No. 93, was used  by  the               appellant  as  a passage for going to  a  well               situate in plot No. 93.  Plot No. 93, however,               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,

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             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   passe               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, therefore, 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 which clearly  negative  the case  of  accession  by adverse  possession:  (1)  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 appellant  in  cross-               examination  that  according to him  the  said               strip  of land was covered by the  lease  deed               add was ’not an acquisition over and above the               leased land under 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 establish  accession               by  adverse possession.  On the contrary,  the               appel- 348 lant  sought  to make out a case of  easementary  rights  by prescription, 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 right 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  property  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 interruption 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 agreement.  In Abdul Rashid  v.  Brahman Saran(1) a Full Bench 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 easement  in favour of his holding except on behalf  of  his landlord.   The  Full  Bench, however,  made  a  distinction between an easementary 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, cannot 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 paragraphs of s. 15  acquire such easements as he would not acquire them  for any  one  except  himself under S. 12.   This  decision  was followed  in Haji Abdulla Harron v.  Municipal  Corporation, Karachi(2).  But in Ambaram v. Budhalal(3) the High Court of Bombay  differed from the Allahabad High Court holding  that

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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 distinction 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 method 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 (1) I.L.R. [1938] All. 538. (2) A.T.R. 1939 Sind 39. (3) [1943] I.L.R. Bom. 690. 349 as against such owner.  There is thus clearly a conflict  of view  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 may  institute  a suit for the disturbance of  the  easement provided   that   the  disturbance   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  the 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 Ravachand v. Maniklal (1),  it was  held that an easement by prescription 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  hostile 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 prescriptive  acquisition of the fight.  Therefore,  if  the owner  of  a dominant -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  right 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  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 passage  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

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that the said strip of land fell (1)  I.L.R. 1946 Bom. 184 (F.B.) 350 under  the document of lease.  "I have a right on both,  the properties  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 him,  the area mentioned therein was described as  measuring 5182  sq.  "ft., which would not include the strip  of  land forming  part  of plot No. 93.  Having thus  failed  in  his claim  that the said- strip of land was acquired  either  as accession or as one covered by the lease deed, he could  not turn  round  and  successfully claim that he had during  the               requisite  period exercised rights over it  on               the footing of an owner of a dominant tenement               exercising   those  rights  over  a   servient               tenement of another. Assuming,  however, that the said strip of land was used  by him  as a passage, the evidence clearly showed that  it  was permissive.  There was evidence of a permission having  been asked for from the respondent’s father by the appellant  for installing a handpump over the respondent’s well in plot No. 93.   If  the  appellant, and previously  his  father,  were permitted  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 permissive 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 therefore at Rs .45/-  a  year,               and had put up thereon a tin-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 written by him to the  respondent               both  relating to rent due, by him in  respect               of  :the said 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 continuous 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  constitute 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 less than before.  There must be  a substantial  privation  of  light,  enough  to  render   the occupation of the house uncomfortable, 351 according to the  ordinary notions of mankind.  See Colls v.               Home and Colonial Stores(1). The  plan produced in evidence shows that the  central  part of th

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e appellant’s building has five windows on the  ground floor,  five in addition to one smaller window on the  first floor  and four on the second floor.  All these windows  are in the rear side of the building and open out an to the said strip  of  land.  There can be no doubt and the  plan  shows clearly  that  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 co , 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 evidence also that the  ground floor          bad  so far been used as a godown ,or a  store               room, though the appellant a 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 there are no cross-objections against it  by  the respondent. In  the view that we take, 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. (1) [1904] A.C. 179 352