JUDGMENT T.S. Misra, J.
1. This is plaintiffs' appeal arising out of a suit for mandatory injunction to direct the defendants to close the opening shown by letters M in the site plan given at the foot of the plaint. The plaintiffs alleged that in the wall CD the defendants forcibly made an opening measuring 3' x 3' on 16th July 1961 as a result of which the latrine and Angan of the plaintiffs' house were visible and the privacy of the plaintiffs were interfered with, They also alleged that purdah system was observed in their family and the alleged opening greatly interfered with that system. Consequently they asked the defendants to close the opening but they paid no heed hence the suit was filed for the aforesaid reliefs. The defendants resisted the suit on a number of grounds. They alleged that the opening was not new and that the plaintiffs did not have any right of privacy nor that right was interfered with. They further alleged that they had acquired a right of easement of light and air through the disputed window. They asserted that as the old window had been damaged on account of rains they wanted to replace the same. Plea of limitation was also raised.
2. The trial court dismissed the suit. The appeal preferred by the plaintiffs was also dismissed, They have now come to this Court in second appeal.
3. Both the courts below have held that the disputed opening in the wall had been in existence for more than 20 years. The learned counsel for the plaintiffs appellants urged that while coming to this conclusion the appellate court below did not properly appreciate the report of the Amin which according to the learned counsel established beyond doubt that the opening made in the wall was a new one and had not been in existence for more than 20 years as alleged. This contention has no force. It appears that no objections were filed against the report of the Amin and the plaintiffs did not produce any evidence to substantiate that the holes etc. in the wall were new and the opening in the wall was also new. The oral evidence adduced by the plaintiffs was found to be contradictory. The plaintiffs had deposed that while the defendants had made opening in the wall he brought Janardan Pandey and Sheo Kumar Rai who persuaded the defendants to close half of the opening but significantly these two persons were not produced as witness in the case. The testimony of Sheodhari Pandey was on critical examination found to be unreliable. The defendants had examined Chhangur Ram. a mason whose statement was found to be trustworthy. Defendant No. 1 also examined himself to substantiate the case set up by the defendants. On a consideration of the entire evidence on the record and the surrounding circumstances the appellate court below concurred with the finding of the trial court that the disputed opening was an old one and had existed at least for more than 20 years and that mere replacing of Kiwar and chaukhat therein would not create any right to the plaintiffs to set it closed.
4. It was next urged that the defendants failed to establish that they had enjoyed access and use of light and air through the said opening as of right, hence the alleged easement had not become absolute and indefeasible and the plaintiffs were entitled to get the disputed opening closed. Section 26 of the Indian Limitation Act of 1908 which corresponds to Section 25 of the Limitation Act of 1963 provides that where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement and as of right without interruption and for 20 years, the right of such access and use of light or air shall be absolute and indefeasible. In order to make such a right absolute and indefeasible, it is necessary to establish that the access and use of light had been enjoyed also as of right.
The words, 'as of right' mean "without permission or favour." The user as of right, therefore, connotes a user in the assertion of right as against all persons and would not mean a right acquired through a grant or permission from the servient owner. A permissive user is not a user as of right but it is an enjoyment in such a manner as not to involve the admission of obstructive right, in the owner of the servient tenement. Whether a user was as of right or not has, therefore, to be decided on the basis of the surrounding circumstances and the facts established in the case. If long open user is established a presumption can legitimately be drawn in the absence of other circumstances, that it has been as of right. Obviously the party claiming the easement has to establish that the user is as of right. If the enjoyment has not been made secretly or stealthily or by tacit sufferance or by leave or favour or by license, but has been made openly and notoriously, it would be an enjoyment as of right. There is ample authority for the proposition that it is for the party opposing the claim of easement to show that user was on license or by fraud, force or secrecy. The relationship between; the parties and the circumstances under which the user has taken place would also be relevant factors for consideration in this behalf.
5. The learned counsel for the appellant argued that according to the conditions in India, the relationship of the parties and the circumstances of each' particular case there is a presumption that the user is permissive and the person claiming right must have the acquisition of such right under Section 26 of the Limitation Act or Section 15 of the Indian Easements Act and placed reliance on the decision in the case of Lambodar Panda v. Ramesh Chandra Panda, AIR 1958 Orissa 248. This decision was, however, reversed in the Letters Patent Appeal by the Division Bench of the Orissa High Court which is reported in AIR 1960 Ori 95. Ramesh Chandra Panda v. Lambodar Panda, The Division Bench of that Court held that the right of easement which has been enjoyed for a very long time must be referred to a legal origin and. therefore, the owner of the servient tenement must be presumed to have granted the right. It was observed by their Lordships that in order to rebut the legal presumption that the plaintiff has been using the disputed pathway as of right the defendant must allege that it was a permissive one and ii the defendant does not set up a case of permissive user in his written statement he cannot be allowed to take up that plea when confronted by the evidence adduced by the plaintiff that the user was as of right. Similarly in the case of Phool Chand Naraindas v. Murari Lal Nathulal. AIR 1951 Madh Bha 89, it was held that lone user of the right of way raises a presumption in favour of the plaintiff that the enjoyment has been as of right.
6. In the instant case the plaintiffs had not put forward the plea of permissive user of the opening in question. On the 'contrary they had denied the very existence of the opening and had asserted that the defendants had made that opening in the wall for the first time on 16-7-1961. The Courts below, however, found on the basis of the evidence on record that the opening in question had been in existence for more than 20 years. In these circumstances it would be legitimate to infer that the user of the opening by the defendants was as of right. The fact that the plaintiff and the defendants belong to the same family would, therefore, not be of much consequence. The defendants had been receiving light and air through that opening for more than 20 years openly, peaceably and without any interruption. Their right to such access and use of light or air has. therefore become absolute and indefeasible. That being so, the plaintiffs were not entitled to have the opening closed on the ground that because of its existence their privacy is being violated.
7. No other, point was urged.
8. In the result the appeal fails and is accordingly dismissed with costs.