ORDER
Phillips, J.
1. In this case there are two houses, Nos. 19 and 20, adjoining one another and apparently they both originally belonged to the same family. For many years past, and certainly for 20 years, the inhabitants of No. 20 have been using a privy situated in No. 19 and for that purpose have been enjoying the right of way over portions of No. 19. The plaintiff in this case originally brought a suit in 1917 for recovery of house No. 19, but that suit was dismissed. He has now brought the present suit for a declaration that he is absolutely entitled to the latrine marked 'C' in the plan and to the use thereof, and, in alternative, as a right of easement. Although the plaintiff's suit to recover house No. 19 has been dismissed, yet, in his plaint, he persists in asserting his right to it inclusive of the latrine marked 'C', and he pleads in the alternative that he is entitled to the use of the latter as an easement. The learned City Civil Judge has found that this right has been established and has given a decree accordingly, and this decision is in accordance with a decision of this Court in Konda v. Ramasami [1915] 38 Mad.1. There it was held that the mere claim of the higher right of ownership would not prevent a person from acquiring a lessor right of easement, provided he can show that he asserted certain right of enjoyment over the land in question for the benefit of another land belonging to him. This case purports to follow a Full Bench decision in Narendra Nath Barari v. Abhoy Charan Chattopadhya [1907] 34 Cal. 51. A similar view was taken in this Court in Vekataratna Dikshitar v. Subbaroya Pillal [1911] 1 M.W.N. 95. It is now urged for the appellants that this view is opposed to the decision of the Judicial Committee in Attorney General of Southern Nigeria v. John Holt and Co., Liverpool Ltd. [1915] A.C. 599 and also to decisions in Jalaluddin v. Asad Ali [1883] A.W.N. 66. and Chunilal Fulchand v. Mangaldas Govardhandas [1892] 16 Bom. 592., the two latter decisions being under Section 26 of the Limitation Act, the Basements Act not being applicable in those provinces. I think it must be conceded that the contention that the decision in Attorney-General of Southern Nigeria v. John Holt and Co., Liverpool Ltd. [1915] A.C. 599 is opposed to the decisions of this Court is correct. There their Lordships say :
In substance the owner of the dominant tenement throughout admits that the property is in. another and that the right being built up or asserted is the right over the property of that other. In the present case this was not so. For these reasons their Lordships are of opinion that the grounds upon which the judgment appealed from are put cannot be maintained.
2. The question is not discussed at any length, and the case being one from South Nigeria, it is obviously not based upon the provisions of the Indian Easements Act and it is upon the language of Section 15 of that Act that this Court based its conclusion. In addition to the decision of the Judicial Committee, we have been referred to a case in Lyell v. Lord Hoth field [1914] 3 K.B. 911 which distinguishes two earlier cases, Earl De La Warr v. Miles 17 Ch. D. 535, Dawson v. McGroggan [1908] Re 92. In the former case it was held by Brett, J., that the user having been established, the fact that the user was based upon a right which was found not to exist was not material. Cotton, L.J., came to the same conclusion. Nor do I think that the leading-judgment of James, L.J., takes any different view. This case and the Irish case were considered in Lyell v. Hothfield [1914] 3 K.B. 911 by a single Judge and were distinguished on the ground that in those cases the acts of user were done in pursuance of an alleged right in Alieno Solo although the claim was made under a mistaken belief, but where the acts were acts attributable to a claim of the ownership of the soil itself there can be no question of obtaining an easement. This is the view taken in Attorney General of Southern Nigeria v. John Holt and Co:, Liverpool Ltd. [1915] A.C. 599. The question appears to be one of some difficulty; for it is not quite clear to me why a person using a right of way on another's land as of right uninterruptedly for over 20 years should be allowed to establish a permanent right to the easement, whereas if that same person says, that he used this right of way because he was the owner of the land he should by that mere assertion be deprived of the right which would otherwise be held to have accrued to him. It must also be observed that if the acts are done in pursuance of a mistaken belief of ownership or such belief is known to the real owner an absolute title by prescription would be acquired in 12 years whereas a lesser right of easement is not acquired even after 20 years of the very same enjoyment. Such a conclusion hardly seems to be logical. As the decision of the question must depend upon the interpretation of Section 15 of the Easements Act, I think that possibly the judgment of this Court may have to be modified in view of the decision of the Judicial Committee which was based not on the Indian Easements Act but on the English Law on the point which is very similar. I think, therefore, that it is desirable to refer to a Full Bench the question whether the decision, Konda v. Ramasami [1915] 38 Mad.1, is correct.
Odgers, J.
3. In this case the plaintiffs sued, as owners of house and ground No. 20 Singarachari Street, Triplicane and they also alleged that they were the owners of No. 19 in the same street, by right of inheritance as reversioners to the last male holder. As to this latter house they have brought a suit, C.S. No. 222 of 1917, which was tried on the original side of this Court and Mr. Justice Coutts-Trotter (as he then was) decided that No. 19 was not the property of the plaintiffs but of the defendants, and this judgment was confirmed in appeal, O.S. Appeal No. 52 of 1919. The right in dispute in the present case is the right of using a latrine which is in the compound of No. 19 and plaintiffs' suit was for a declaration that they are absolutely 'entitled to their ' latrine marked 'C' in the plan and to the use thereof as hither-tofore. They claim user for more than 70 years. The prayer in the plaint was amended on the 25th September 1922, the suit having been begun on the 17th August 1921, by an alternative prayer that they are entitled to the use of the said privy 'C' as hither-tofore as a right of easement. The learned City Civil Judge found that the plaintiffs were entitled to an easement and on appeal to this Court it is contended that no right of easement can be acquired on or over land which the acquirer believes to be his own. It is perfectly clear from the definition of an easement in Section 4 of the Easements Act that no man can acquire an easement in land which is his own. The question is whether the belief or allegation that the land is his own, when it is not really so, makes any difference. In other words, has a man under Section 15 of the Easements Act to prescribe for an easement with a certain animus or not The part of the Easements Act which will have to be considered is Section 15, paragraph (3).
And where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years.
4. Section 5 of the English Prescription Act, 2 and 3, Will. IV, Ch. 71, which corresponds to Section 15(3) of the Indian Easements Act runs:
The right of way must have been actually enjoyed by any person claiming right thereto without interruption,
5. The provisions of this Act have been the subject of many decisions. For instance in Bright v. Walker [1834] 1 Cr. M. & R 211 the words ' as of right '-which Section 15 reproduces in the Indian enactment-have been considered, and it was laid down that under the Prescription Act the claimant must prove enjoyment for statutory period as of right. This would be impossible for instance if there were unity of possession of both the tenements during all or part of the time; compare the remarks of the same Judge (Martin, B.) in Onley v. Gardiner [1838] 4 M& W. 496. In Gale on Easements, page 238, it is laid down that one of the essentials for an acquisition of easement is that the enjoyment must have been an enjoyment of the easement in the character of an easement distinct from the enjoyment of the land itself ; and in Goddards on Easements, page 16, the author says that:
Where a man exercises his right in his capacity as owner of the soil the right he exercises is not an easement but a proprietary right incident to the ownership of the land.
In Gardenar v. Hodgson's Kingston Brewery Company [1903] A.C. 229, Lord Lindley says:
I understand the words 'claiming right thereto' and the equivalent words 'as of right' which occur in Section 5 (of the Prescription Act) to have the same meaning as the older expression. Nec VI. Nec. Clam, Precarlo,
and adds
A title by prescription can be established by long peaceable open enjoyment only ; but in order that it may be so established the enjoyment must be Inconsistent with any other reasonable inference than that it has been as of right in the sense above explained. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established.
6. In Attorney-General of Southern Nigeria v. John Holt & Co., (Liverpool) Ltd. [1915] A.C. 599 the respondents had built stores and sheds upon certain land reclaimed from the sea and for a long period had used it for purposes of their business and had had exclusive possession. The Crown appealed to the Privy Council against the Colonial judgment in so far as it declared that the respondents were entitled to an easement to place stores, etc. on the reclaimed land ; and it was argued that as the respondents were in exclusive possession of the servient land they could not acquire an easement over it by prescription. Their Lordships held that the respondents thought they were making proper use of their rights as owners of property abutting upon thesea and say:
An easement, however, is .constituted over a servient tenement in favour of a dominant tenement. In substance the owner of the dominant tenement throughout admits that the property is in another and that the right being built up or asserted is the right over the property of that other.
7. They refer to Lyell v. Lord Hothfield [1914] 3 K.B. 911. In this case the learned Judge found that for 60 years there have been disputes between certain bodies of shepherds each asserting their own rights on the ground that the land belonged to the lord of their own manor and not to the lord of the other manor. The judge points out that
the feeding of sheep on the part of the manor in question was not done with the consent or acquiescence of Lord Hothfield and it is the consent or acquiescence which lies at the root of a claim for prescription....Here the acts were acts attributable to a claim to the ownership of the soil itself
and again at the end of the judgment he says:
Here the enjoyment, such as it was, was attributable to a mistaken claim to a right to the soil.
8. As against this body of authority the respondents quote Konda v. Ramaswami [1915] 38 Mad.1, the decision of Sundara Ayyar and Sadasiva Ayyar, JJ., where it is held that
there is no reason why a person who walks along a certain land without the permission of the true owner and in the assertion of a right to walk should not create in favour of the enjoyer a prescriptive right of easement simply because he mistakenly supposes that he is the owner of the land or asserts that his act of enjoyment is sufficient to give him the ownership by prescription.
It is pointed out that in the 3rd paragraph of Section 15 of the Easements Act title need not be claimed as an easement and that enjoyment is required to possess two properties, viz.; (1) that it must be as of right without interruption and (2) that it must be as an easement. The first quality is intended to show that enjoyment by licence or under a contract which would not amount to a grant of an easement would be ineffectual to create a right by prescription. Then the other quality is that the enjoyment should be as an easement and they quote illustration (b) to the section to explain what is meant by the words 'as an easement,' and they go on to say:
That the words mean that unity of title or possession during the period of the twenty years or a portion thereof, makes the possession useless to create a right of easement.
The learned Judges in a previous part of their judgment consider what is meant by adverse enjoyment and they say that
the animus possidendi of the adverse enjoyer would determine the title which he would acquire by prescription.
And that it might be open to the real owner to say that only an easement right was so asserted by the person in adverse enjoyment:
it being the adverse enjoyment or enjoyment without a lawful right that gives right to a title by prescription.
In considering the case in Narendra Nath Barari v. Abhoy Charan Chattopadhga [1907] 34 Cal. 51 the learned Judges say:
It is of course impossible to prove an animus to hold the land as owner and at the same time in virtue of a right of easement.
9. It appears to me, therefore, that the learned Judges in Konda v. Ramasami [1915] 38 Mad.1 must be taken to hold that the animus by or under which a person exercises his right in the case of a prescriptive right must be taken into consideration. The same observation may be made with reference to another case quoted by the respondents, namely, Venkata Varahia Dikshitar v. Subbaroya Pillai [1911] 1 M.W.N. 95 where it was held that a false belief of ownership does not necessarily preclude the acquisition of a right of easement. The learned Judges in sending down the case for a finding on the question whether the plaintiff hate enjoyed the way as an easement as of right for the prescriptive period, with reference to the circumstances they adverted to, say:
They are material for determining quo animo did the plaintiff enjoy the way.
10. The facts of the case are not reported, but it would appear probable that the right of easement had been established previously and that this right was used to support a claim to ownership.
11. Another case cited by the respondents was Earl de La Warr v. Miles 17 Ch. D. 535. and a passage was relied on to the effect that if enjoyment is proved for the time requisite under the Prescription Act as of right and not by permission it does not matter on what ground the claimant rests his alleged title. A careful perusal of the judgment will, I think, show however, that it is confined to one of the three grounds, custom, grant or prescription. There was, I think, no claim to a right of ownership in the case and it may further be said that this was not a case of easement at all but of a profit a prendre. As in the case in Dawson v. Mc Groggan. [1908] Re 92. where it was held that the defendants were entitled to presume a legal origin for an absolutely uninterrupted assertion of rights to profits a prendre extending over 70 years. Reference was made to a case in Narendra Nath Barari v. Abhoy Charan Chattopadhya [1907] 34 Cal. 51 where a Full Bench of that Court held that a suit was not liable to be dismissed in limine because it contained alternative claims of ownership and easement. This is a matter of pure pleading and all that the Court held was that they are alternative claims and not so necessarily inconsistent that the plaintiff ran the risk of having his pleading struck out. In this state of authorities, speaking for myself, I am of opinion that the ruling in Konda v. Ramasami [1915] 38 Mad.1, with great deference to the opinion of the two eminent Judges who decided it, is wrong and that if a man exercises a right with the animus or consciousness that he is exercising a proprietary right in his own land and not a right over another's land he cannot acquire a right of easement by prescription. The question in this case is : if that premise is sound, with what animus did the plaintiff here assert his right to use the privy 'C,' As already pointed out he asserted his ownership to No. 19 in a previous suit which went to appeal. That was in 1917. That was found against in 1920. In 1921 he presented the plaint in the present case insisting on his absolute title to the privy marked 'C and continued to assert it for 13 months thereafter until he amended his plaint, and even then the claim to an easement is only inserted in the alternative. The state of a man's mind can only be judged by his outward acts and it is certainly a question of fact. If one has to judge the state of the plaintiff's mind in this case, I do not see how the conclusion can be avoided that he presisted in his claim to this latrine as owner. I agree in the order proposed by my learned brother.
12. We think that some of the expressions of opinion in Konda v. Ramasami [1915] 38 Mad.1, cannot be supported. They are clearly in conflict with the English cases of Lyell v. Lord Hoth field [1914] 3 K.B. 911 and the Attorney General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd. [1915] A.C. 599. There is nothing inconsistent with these two decisions to be found in Earl De La Warr v. Miles 17 Ch.I 535. because in that ease the right was exercised as a right of a dominant over a servient tenement even though the owner of the dominant tenement was in error as to the exact origin of the right he possessed and exercised. Though the English cases are of course decisions either under the English Prescription Act or the common law, we are satisfied that their principles apply to Section 15 of the Indian Easements Act. It is clear that a man is not finally precluded from claiming the benefit of an easement merely because in the course of legal proceedings ha made an unfounded claim to be owner however strong evidence such a claim might be against him. The learned judges in Konda v. Ramasami [1915] 38 Mad. 1, seem to imply that the assertion of ownership during the period, of user is not fatal to the success of a claim to an easement. To this proposition we cannot: assent. Our opinion is that while the mere putting forward of a widker claim in legal proceedings is not conclusive against a right of easement, yet the question quo animo egerit to what purported character are the acts of user to be ascribed is 'one which the Court must answer, and if Konda v. Ramasami [1915] 38 Mad.1 implies the contrary we think it is wrongly decided. We agree with the conclusion, of Shearman, J., in Lyell v. Lord Holhfield [1914] 3 K.B. 911 that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement. The question of animus in this ease is one of fact which must be determined in the light of these, observations by the Division Bench to which the case will be sent back.