JUDGMENT Yorke, J. - This is a Plaintiff's second appeal in a suit for injunction to restrain the Defendant from interfering with certain rights claimed by the Plaintiff by way of easement over a plot of land situated between his house and the public road. This was land which belonged to the Municipal Board but has been sold by it to the Defendant. The Defendant pleaded that the Plaintiff had once before made a claim in respect of this land alleging himself to be the owner of it and his present claim was barred by the decision of the former suit. He further claimed that the use of and the constructions made by the Plaintiff on this land were new and the Plaintiff had not acquired any rights. The trial Court held that the prior decision did not affect the relief of establishing a light to flow water over this land or the right of way. 2. The learned Munsif went on to consider the question whether the Plaintiff had acquired a right of easement and he held that the Plaintiff had exercised the rights which he claimed over this land for more than 20 years and that as the Government was not the Defendant, that period was sufficient to establish his rights. He accordingly decreed the claim holding that the Plaintiff might continue to discharge water from two parnalas on to this land, that he could maintain a drain across it and a latrine and Chhajja and had a right of way over it to the public road and to the latrine. He, however, committed the exercise of the right of way to certain specific areas demarcated on the map which formed part of the decree. 3. Upon an appeal by the Defendant, the learned Civil Judge of Farrukhabad has dismissed the Plaintiff's suit. The most important finding at which he has arrived is that as the right of easement had previously been exercised against Government, a period over 20 years was not sufficient to make the right absolute despite the fact that the Defendant to the suit was not Government. Incidentally in arriving at this decision, he has relied on the decision in the previous suit as a decision that the land in suit belonged to the Government before it was transferred by the Municipal Board to the Defendant. Incidentally in arriving at this decision, he has relied on the decision in the previous suit as a decision that the land in suit belonged to the Government before it was transferred by the Municipal Board to the Defendant. In other respects he has agreed with the trial Court that the decision in the previous suit could not bar the present suit. 4. The first point for consideration in the present appeal is whether it was open to the Plaintiff, having failed in a suit to establish his ownership of this property, to fall back upon a plea that he had rights of easement over it. In this connection it is important to consider what the Plaintiff's claim was in the previous suit He had there alleged that he had ownership over this disputed plot malikana was mokhalifana. It seems to me clear that by this statement he was not relying upon a previously existing title. What he was pleading was that he had been exercising certain rights or some sort of user over this land which had resulted in the ouster of the rightful owner and which user had ripened by I the passage of time into an absolute ownership. It would, I think, be difficult to say that some one who relied on a previously existing title, as for example by a purchase 20 or 30 years back, could be allowed to fall back on an alternative plea of easement because if such a person had been exercising pc session over a plot he would always have been exercising it as of right as owner and he could never plead that he had been exercising it with the intention of exercising it against and in spite of the wishes of a third person, the real owner. On the other hand, where the suggestion is that a person has exercised rights despite the real owner it may well be that he has failed to exercise those rights in such a manner as to effect an ouster and yet at the same time he may have exercised them so continuously and in such a manner as to establish an easement. This view seems to me to he fully in accordance with the view taken in the Full Bench case of the Madras High Court, (Pannala) Subba Rao Vs. This view seems to me to he fully in accordance with the view taken in the Full Bench case of the Madras High Court, (Pannala) Subba Rao Vs. (Parupudi) Lakshmana Rao and Another, AIR 1926 Mad 728 , the head note of which runs as follows: An easement by prescription is capable of being acquired only if the user during the statutory period had been with the animus of enjoying the easement as such in the land of another and not if the user had been in the consciousness of one's own ownership over the same. But a mere assertion of ownership in prior legal proceedings while the enjoyment was really as an easement is not conclusive against a right of easement. It has been held by the Full Bench of the Calcutta High Court in Narendra Nath Barari v. Abhoy Charan Chattopahdya (1906) 34 Cal. 51, that a suit is not liable to be dismissed because the Plaintiff claims in the alternative over the same plot of ground rights, (1) of ownership and (2) of easement. 5. The foundation of such a case, if was noted by one of the Judges, is as follows: In a case like the present a Plaintiff may very well allege bona fide: I believe the land to be mine, but I may be unable to prove it; if I should fail to prove it I can at any rate prove that I have been using the right of way as an easement uninterruptedly and as of right for over 20 years. 6. There is of course some difference of view between this and the Madras case because in such a case the Plaintiff will not have had the animus of using or possessing the land in derogation of the rights of a third person. 7. There are two cases of this Court on the point and I am, in any case, bound by the case of Chedami Lal v. Shib Charan (1904) A.L.J. 59. The head note is as follows: The fact, that the Plaintiff asserted a right of ownership over a land, which he afterwards found did not exist and in consequence of which he withdrew his suit, does not preclude the Plaintiff from claiming a right of easement. The head note is as follows: The fact, that the Plaintiff asserted a right of ownership over a land, which he afterwards found did not exist and in consequence of which he withdrew his suit, does not preclude the Plaintiff from claiming a right of easement. If the Plaintiff had enjoyed !he right of user, of a land, for such a long period as is sufficient to confer on him a right by prescription, the circumstance that in a previous suit he had erroneously stated that he was the owner, would not deprive him of the right of easement which he had acquired." Similarly in Dwarka v. Ram Jatan 1930 A.L.J. 1537, it was held that: A suit was not liable to dismissal because the Plaintiff claimed in the alternative over the same plot of land both by rights of ownership and of easement. In order that the user should be 'as an easement and as of right', it is absolutely essential that the said right should be claimed over the property of another and for the beneficial enjoyment of a property which belongs to the owner. From the very nature of the conception, easement is rather a fringe to property than property itself (Section 15, Easements Act). The question of animus is in each case a question of fact. Where the owner of one property exercises certain rights of enjoyment over the property of another for the beneficial enjoyment of the former, he must be presumed to possess an animus which is manifestly to his advantage. 8. This decision seems to me to bring out clearly the point on which I have laid some stress earlier and possibly to throw some doubt on the form in which the point has been put in this Court in the earlier case. It does not, however, cause any difficulty in the present case because the Plaintiff never alleged that the property in dispute was his own property by origin. He claimed only to have acquired rights over it either by the exercise of adverse possession or by the exercise of certain kinds of user. 9. It does not, however, cause any difficulty in the present case because the Plaintiff never alleged that the property in dispute was his own property by origin. He claimed only to have acquired rights over it either by the exercise of adverse possession or by the exercise of certain kinds of user. 9. Coming now to the second point, the first thing to notice is that the learned Civil Judge has assumed that Government was the owner of this land before it was transferred by the Municipal Board to the Defendant and he has based his finding upon the decision in the previous suit. In so doing he has I think, made a mistake. In the previous suit the Plaintiff claimed to have acquired a title by adverse possession. The sole question was whether in fact he had done so. For the decision of that question it was not necessary to decide whether the land over which the right was claimed had previously belonged to the Government or to someone else and therefore although that point may have been incidentally decided, the decision could not be relied upon a res-judicata on the point. The learned Munsif has held that it was not proved that this laud was Government land and it was not open to the lower appellate Court to upset that decision merely by relying on the decision in the previous suit. It follows that the very foundation of the view taken by the learned Munsif that the Plaintiff had exercised his rights prior to the transfer as against the Government and therefore those rights had not become absolute is missing from the case. However, for the sake of argument let it be assumed that that point could be decided in favour of the Defendant, still we have to be certain whether the view of the lower appellate Court that the Plaintiff's rights had not become absolute because they had been exercised in the first instance and for the bulk of their life against the Government is correct. The learned Munsif had relied upon the decision of a single Judge of this Court in Municipal Board Vs. The learned Munsif had relied upon the decision of a single Judge of this Court in Municipal Board Vs. Khalil-ul-rahman, AIR 1929 All 382 in which it was held that The provision in Section 15 of the Indian Easements Act requiring 60 years' use to establish an easement refers to the date when the easement is claimed Section 15 of the Easements Act provides : Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption and for twenty years, 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, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. 10. Then follow four explanations and after them there is a final paragraph which runs as follows: When the property over which a right is claimed under this section belongs to Government this section shall be read as if for the words 'twenty years', the words 'sixty years' were substituted. 11. Now it seems to me that as this section is framed the claim must mean a claim in a suit and the claim may be made either in reply to a suit or affirmatively by the Plaintiff. The view taken by Ashworth J. in the reported case seems to be in accordance with the wording of the section, but there can be no doubt that the remark was obiter. This is shown by the wording of the judgment where he says: So at the date of the suit the land belonged to the Board The provision in Section 15 requiring 60 years use to establish an easement refers to the date when the easement is claimed. It would not therefore be open to the Appellant to plead that at some period antecedent to the bringing of the suit the road belonged to Government. Even if this might be argued it has not been argued 12. It would not therefore be open to the Appellant to plead that at some period antecedent to the bringing of the suit the road belonged to Government. Even if this might be argued it has not been argued 12. It seems to me that the last paragraph of this section prima facie gives a personal privilege to the Government when the Government is Plaintiff or Defendant in the suit just in the same way as by Article 149 of the Limitation Act a period of limitation of 60 years is prescribed for any suit by or on behalf of the Secretary of State, the effect of which is that a trespasser has to show 60 years' adverse possession against the Government whereas he would have only to show 12 years' adverse possession against a private period. As against this decision, which has not been supported by any discussion or argument, reliance his been placed on a Bench decision of the Madras High Court in Srinivasa Upadya Vs. Ranganna Bhatta (dead) and Others, AIR 1918 Mad 120 . That was a case where the servant tenement had belonged to the Government until 2 years before the suit and was then assigned by the Government to the Defendant. At the time of assignment the easement had been exercised only for 30 or 40 years and had therefore not become absolute as against the Government. The Appellant contended that the transfer of ownership had the effect of rendering it absolute inasmuch as the servient tenement became the property of a private individual against whom the previous 30 or 40 years enjoyment would be sufficient u/s 15 of the Easements Act. The learned Judges rejected that contention and they said: We think the words 'belongs to Government' in the last paragraph of Section 15 must refer, not to the time of suit but to the time during which the easement is enjoyed. An easement can only be acquired by twenty years enjoyment against a private person or by sixty years enjoyment against Government. Here neither condition is satisfied. 13. An easement can only be acquired by twenty years enjoyment against a private person or by sixty years enjoyment against Government. Here neither condition is satisfied. 13. They went on to say: If we adopted the view contended for by the Appellant, we should have to hold that the transfer of the servient tenement by a private owner to Government would have the effect of destroying any easement right, which had been legitimately acquired by twenty years enjoyment but which had not been enjoyed for the period of 60 years required as against Government. 14. I must confess that it seems to me impossible to read the words in the last paragraph of Section 15 of the Easements Act in this way. The words are: When the property over which a right is claimed under this section belongs to Government and it seems to me that the question of claim only arises when there is a suit, vide the last paragraph preceding the explanations. As to the danger suggested towards the end of the judgment in the Madras case, that is a question which may be decided when it arises. In actual fact, it is not a question which is likely to arise at all frequently because transfers by private owners to Government are the result for the most part of proceedings under the Land Acquisition Act and in such cases Government gets the land free from all encumbrances. The argument put forward on behalf of the Respondent is that at the date of the transfer by Government to its transferee the Plaintiff had not so far acquired any rights against the transferor by his twenty years user. It follows that to get them against a transferee he will have to begin again. That however does not appear to me to be the intention of the section. Learned Counsel for the Appellant has relied upon the analogy of certain suits by assignees of property from Government and also on the analogy of the position of transferees from a minor, for example in cases where a trespasser has had more than 12 years adverse possession against the minor hut the minor's right to sue still subsists. It is not in dispute that if the minor makes a transfer to a third person that transferee's suit will be barred by limitation. Similarly it has been held in Annada Mohan Roy Chowdhury Vs. It is not in dispute that if the minor makes a transfer to a third person that transferee's suit will be barred by limitation. Similarly it has been held in Annada Mohan Roy Chowdhury Vs. Kina Das and Others, AIR 1924 Cal 394 , that where a purchaser of land from Government sued to recover possession within sixty years but after more than 12 years from the commencement of adverse possession although within 12 years of purchase, the suit was barred and there was only 12 years limitation under Article 144. The period which has run against the Plaintiff's predecessor-in-title, in this case the Government, must be reckoned against the Plaintiff and it was pointed out in this case that the answer to the argument that this led to an anomaly was, as is often the case, a practical one, namely, that when a conveyance of property is taken from Government, against whom other persons are in adverse possession, it should not be taken until the Government has instituted proceedings and obtained an order for possession and is in a position to transfer the property free from such blot on the title. 15. I am clearly of opinion that just as Article 149 of the Limitation Act confers a specific privilege upon the Secretary of State so also does the last paragraph of Section 15 of the Indian Easements Act. It follows that once the Plaintiff established that he had exercised his rights as an easement against the predecessor-in-interest of the Defendant whether that predecessor-in-interest was the Government or not, his rights at the time when they were claimed in a suit against a private person had become absolute since that private person could not claim the privilege which is the personal privilege of the Government. 16. In my judgment, therefore, the learned Civil Judge has wrongly held that the Plaintiff had not acquired the easement claimed by him. I accordingly allow this appeal, set aside the decision of the lower appellate Court and restore that of the trial Court. The Plaintiff will be entitled to his costs in all the three Courts 17. I should note that Learned Counsel for the Defendant has put forward the argument that the Plaintiff could not have a right of easement to maintain a latrine on the land in suit. The Plaintiff will be entitled to his costs in all the three Courts 17. I should note that Learned Counsel for the Defendant has put forward the argument that the Plaintiff could not have a right of easement to maintain a latrine on the land in suit. It will be sufficient to say that he did not attempt to substantiate this proposition. 18. As the point in regard to the interpretation of the last paragraph of Section 15 of the Indian Easements Act is one of some importance, I grant permission for a Letters Patent Appeal.