D. C. SRIVASTAVA, J. ( 1 ) THIS is plaintiffs Second Appeal. ( 2 ) THE plaintiff-appellant filed Suit for declaration that he has got right to discharge rainy water and daily water for domestic purposes through hole in the southern wall of the plaintiff and for permanent injunction restraining the defendants-respondents from obstructing his right to discharge rainy and daily water through disputed hole. On 30. 4. 1970 the plaintiff purchased property, detailed in Para : 12 of the plaint, from champaklal under a Registered Sale Deed. The house along with open chowk measuring 11 ft. east-west and 7 ft. north-south is alleged to be in ownership and possession of the plaintiff. The rainy water used to fall in the plaintiffs chowk and thereafter it was going towards the property of the defendants through a hole measuring 1 x 1 in the southern wall of the plaintiff. Ultimately the water used to flow through gutter on the main road. In a similar manner rainy water from the houses of other owners situated towards the west of the plaintiffs house used to flow since more than 20 years. The plaintiff thus claimed easementary right by prescription to discharge water in this manner as he and his predecessors were exercising this right for more than 20 years. The defendants purchased their property about 10 to 12 years back. However, on 8. 4. 1972 they started digging foundation for construction of bath-room so as to close the hole in the plaintiffs wall meant for discharge of rainy and daily water. On plaintiffs objection the defendants promised to remove the construction, but with no result. Hence, the Suit was filed. ( 3 ) THE Suit was contested on the ground that no such water course existed as has been alleged by the appellant and that the appellant has not acquired any easementary right nor such right was used nor such right was exercised for more than 20 years openly, peaceably without interruption. ( 4 ) THE Trial Court found that the plaintiff successfully established acquisition of prescriptive easement to discharge rainy water and daily water from his house through the disputed hole. The Suit was accordingly decreed. An Appeal was preferred which was allowed and the Suit of the Appellant was dismissed. It is, therefore, this Second Appeal. ( 4 ) THE Trial Court found that the plaintiff successfully established acquisition of prescriptive easement to discharge rainy water and daily water from his house through the disputed hole. The Suit was accordingly decreed. An Appeal was preferred which was allowed and the Suit of the Appellant was dismissed. It is, therefore, this Second Appeal. ( 5 ) FOLLOWING substantial questions of law were formulated in this Appeal: (I) Whether the lower Appellate Court erred in not taking into account the presumption of continuity of an easement which is of a continuous nature. (II) Whether the first Appellate Court erred in not properly distinguishing between cessation of use and mere non-user, and further whether the first appellate Court has also not erred in not properly considering the effect of explanation II to Sec. 15 of the Indian Easement Act. ( 6 ) I have heard the learned Counsel for the parties. The learned Counsel for the appellant has contended that the lower Appellate Court has reversed the finding of the trial Court ignoring the provisions of Sec. 5 of the Easement Act and Explanation II of sec. 15 of the Easement Act and since the evidence was considered by the lower appellate Court ignoring this provision of law interference in Second Appeal is permissible and it is a case in which the Suit should be remanded for fresh consideration of evidence by the lower Appellate Court in accordance with the provisions of these sections. The learned Counsel for the respondent on the other hand contended that the finding recorded by the lower Appellate Court is a finding of fact based on proper appreciation of evidence on record. Hence, no interference in Appeal is justified. ( 7 ) IN Natwar Shantilal and Ors. vs. Kishanlal, reported in AIR 1942 Cal 261 it was laid clown that the High Court is not justified in setting aside the inference of facts in Second appeal particularly when they are not shown to have been based on an incorrect application of any principles of law. It, therefore, follows from this observation that inferrences of fact which have been based on incorrect application of any principle of law can be interfered by the High Court in Second Appeal. ( 8 ) IN my opinion the lower Appellate Court has not at all considered Sec. 5 of the easement Act. It, therefore, follows from this observation that inferrences of fact which have been based on incorrect application of any principle of law can be interfered by the High Court in Second Appeal. ( 8 ) IN my opinion the lower Appellate Court has not at all considered Sec. 5 of the easement Act. It provides that the easements are either continuous or discontinuous, apperent or non-apperant. A continuous easement is one whose enjoyment is, or may be continual without the act of man and a discontinuous easement is one that needs the act of man for its enjoyment. ( 9 ) IN the instant case two rights were claimed by the appellant. One was to discharge rainy water through hole and to allow the same to pass through the land of the respondent. The second right was right to discharge daily water of the plaintiffs house through the same hole. Right to discharge rainy water is a continuous easement within the meaning of sec. 5 of the Act inasmuch as such easement is one whose enjoyment is continuous and it does not require any act of a man to bring continuity. In the rainy season rainy water is bound to accumulate. It is in evidence that there are boundry walls towards south, east and west of the plaintiffs house. The disputed hole is in the southern boundry. A commission was issued and the Commissioner found the existence of such a hole. The lower Appellate court has shown unnecessarily enxiety in its judgment as to when the hole was constructed and has criticised the plaintiff-appellant for not adducing the evidence as to when the hole was constructed, more particularly when the plaintiff is subsequent purchaser of the property. It is not the case that the house was constructed by the appellant or the boundry walls towards east, west and south by him. If there is a hole in the southern wall of the plaintiffs chowk it is natural that the rainy water could have been discharged through that hole. Not only this, there is evidence of the plaintiff and his predecessor in title on this point. As such this continuous easement did not require any act of the plaintiff or his predecessor in interest for perfection or acquisition of such easement. Of course, the plaintiff has to establish that this right was exercised for more than 20 years. Not only this, there is evidence of the plaintiff and his predecessor in title on this point. As such this continuous easement did not require any act of the plaintiff or his predecessor in interest for perfection or acquisition of such easement. Of course, the plaintiff has to establish that this right was exercised for more than 20 years. The plea of lost grant was rightly repelled by the lower Appellate Court and it was rightly considered to be a case where the prescriptive easement was claimed by the appellant. For counting the period of 22 years continuous user before institution of the suit it was not necessary for the plaintiff to prove that through-out a year rainy water could have been discharged through the hole. Such expectation would have been absurd expectation from the plaintiff. It is only during rainy season that such discharge of water was possible and it was not necessary that through-out 22 years the plaintiff or his predecessor in interest should have been using the hole in question for this purpose. It has come in evidence that for certain period the property was let out by the plaintiffs predecessor in title to various tenants. The lower Appellate Court has offered unnecessary critisism that those tenants have not been examined and on incorrect mathematical calculation the lower Appellate Court came to the conclusion that said period of 22 years user was not established by the plaintiff. Certain dates are material. The property was purchased by the plaintiff appellant in its present form on 30. 4. 1970. The Suit was instituted on 11. 4. 1972. The marriage of the predecessor in title of the plaintiff took place in the year 1937. Husband of the plaintiffs predecessor in title died in 1947, according to the lower Court, though predecessor in title of the plaintiff stated that her husband died few days after the marriage. The Lower appellate Court on presumption observed that from 1948 to 1954 the predecessor in title of the plaintiff remained in hostel in Surat and in 1954 she was in service at Nasik and that from 1954 to 1958 tenants were occupying the property on behalf of the plaintiffs predecessor in title. From 1958 to the date of sale in favour of the appellant, the appellants predecessor in title was again in possession of the property. From 1958 to the date of sale in favour of the appellant, the appellants predecessor in title was again in possession of the property. On the basis of these dates and presumptive dates the lower Appellate Court came to the conclusion that 20 years continuous user of the hole was not established and that the user of hole for discharging daily water for the said years was also not established. It is on th. s misconceived notion that the Judgment and Decree of the Trial Court was reversed by the lower Appellate Court. The Lower Appellate Court did not consider the fact that the plaintiffs predecessor in title was married in the year 1937. It is not in evidence that the house was constructed after that. The evidence on the other hand is that the plaintiffs predecessor in title after her marriage came to reside in this house. No attempt was made by the lower Appellate Court to determine as to when the house of plaintiffs predecessor in title was constructed and whether the hole was there since inception or not. From 1937 to 1947 10 years period was calculated by the lower Appellate Court to be the period during which such right was exercised by the plaintiffs predecessor in title and then from 1958 to 30. 4. 1970. The lower Appellate Court, however, refused to take into consideration the period between 1948 to 1958 and in this way continuous user for 20 years was disbelieved by the lower Appellate Court. It is at this juncture that the lower appellate Court misapplied, rather failed to apply, the provision of Sec. 5 of the easement Act. The act of discharging rainy water is a continuous easement and for exercising such right any act of human being is not required. Thus, whether from 1948 to 1958 the property remained in possession of the. plaintiffs a predecessor in title or in possession of tenant on behalf of the plaintiff s predecessor in title is immaterial. Since no human act was required for continuous right to discharge rainy water it was irrelevant consideration as to who was in possession of the property between 1948 to 1958. ( 10 ) IT may be mentioned that the possession of tenant will be deemed to be possession on behalf of the landlord or land-lady. A tenant can not claim independent possession as owner of the property. ( 10 ) IT may be mentioned that the possession of tenant will be deemed to be possession on behalf of the landlord or land-lady. A tenant can not claim independent possession as owner of the property. If tenants were not examined no adverse inference could be drawn in view of Sec. 5 of the Act. It is not in evidence that the house fell down during this period or that the boundary walls on east, west and south were demolished or were subsequently constructed. On mere presumption it could not be held by the lower appellate Court that the hole was recently constructed. Aid from Commissioners report on the point could not be taken. The record shows that objections were filed against the report of the Commissioner. The Commissioner did not determine the period and could not determine the period when the hole was constructed in the southern boundry of appellants portion. On the other hand the predecessor in title and the appellant stated that the hole was in existence since beginning. No serious efforts were made by the lower appellate Court to determine as to when the hole was constructed and what was the position prior to 1937. It is also not the case that the house was constructed by the predecessor in title of the appellant. Thus, for considering the acquisition of easement to discharge rainy water, irrelevant consideration weighed with the lower Appellate court and not Sec. 5 of the Easement Act. The evidence was therefore read and applied ignoring the provision of Sec. 5 of the Act. Hence, interference in Second Appeal is permissible. ( 11 ) THE right to discharge daily water will be discontinuous easement and for this exercise act of man is necessary. It was then required to be established whether between 1948 to 1958 when the predecessor in title of the plaintiff remained out-side, whether the tenants exercised right to flow daily water from the said hole or not. However, if the house was in existence and it was occupied by the tenants and it is also in evidence that the hole is adjoining the kitchen of the house, in all probability the daily water must have been discharged through this hole by the tenants even. However, if the house was in existence and it was occupied by the tenants and it is also in evidence that the hole is adjoining the kitchen of the house, in all probability the daily water must have been discharged through this hole by the tenants even. The defendants case that the rainy and daily water used to accumulate in the chowk of the plaintiff and used to dry up is improbable and it can hardly be accepted. When there was a hole in the southern boundry wall the plaintiff or his predecessor in interest or her husband could not have permitted the daily and rainy water to accumulate in the chowk because in that event it would have created nuisance for the plaintiff, his predecessor in title as well as her husband. More-over the defendant purchased the adjoining land only about 12 years before. At that time he did not raise any construction. The construction was made few days before the institution of the suit causing obstruction to the hole. The lower Appellate Court should have seperated continuous and discontinuous easement and should have seen whether the continuous easement could be exercised through the hole in question and also whether this continuous easement could be exercised through such hole especially when no other hole for discharge of daily water existed in any of the boundry walls of the plaintiff s house. ( 12 ) IT further appears that the provision of Sec. 15 of the Easement Act as well as explanation II of the said Section were not properly applied by the lower Appellate court. Inter-alia Sec. 15 provides that where a right of way or any other easement (emphasis supplied) 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 other easement shall be absolute. The period of 20 years shall be taken to be the period ending within two years next before the institution of the Suit where the claim to such period relates is contested. ( 13 ) THE right to discharge rainy and daily water from the plaintiffs house will fall in the category of any other easement mentioned in Sec. 15 of the Act. ( 13 ) THE right to discharge rainy and daily water from the plaintiffs house will fall in the category of any other easement mentioned in Sec. 15 of the Act. Thus, for making such right absolute the plaintiff has to establish its user for continuous period of 22 years before the institution of the Suit and such user should be as of easement without interruption and should have been enjoyed peaceably. ( 14 ) EXPLANATION II of Sec. 15 provides that nothing is an interruption within the meaning of this section, unless there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made. ( 15 ) THUS, within the meaning of Explanation II nothing will be interruption unless there is actual cessation of enjoyment. Thus if there is no enjoyment by reason of obstruction by the act of some person other than the claimant, unless such obstruction is submitted to or acquiesced for one year after the claimant had notice thereof and of the person making or authorising the same to be made. In view of this explanation obstruction by some one else other than the claimant is necessary. Cessation of enjoyment by the act of the claimant is not enough to hold that there was interruption within the meaning of this explanation. In the case under consideration obstruction was made to the hole by the respondent few days before institution of the Suit and not that the obstruction was caused within a continuous period of 20 years. It has yet to be decided from the evidence on record as to what was the position prior to 1947. If the period of 20 years continuous enjoyment was complete till 1954 or till 1948 as has been observed by the lower Appellate Court then subsequent obstruction in 1970 could not amount to interruption within the meaning of Explanation II. The lower Appellate Court has therefore failed to take into consideration the meaning of actual cessation of enjoyment. Actual cessation must be due to some acts of or the obstruction created by some person other than the claimant himself. The lower Appellate Court has therefore failed to take into consideration the meaning of actual cessation of enjoyment. Actual cessation must be due to some acts of or the obstruction created by some person other than the claimant himself. Merely because it was not used for certain period could not amount to interruption within the meaning of Explanation-II. ( 16 ) IF the period of 20 years continuous enjoyment of this right was complete in 1948 or 1945 then the next question for consideration should have been extinction of easement within the meaning of Sec. 47. Under this Section a continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years. Cessation of enjoyment of continuous easement for unbroken period of 20 years will extinguish continuous easement. A discontinuous easement is extinguished when for a like period it has not been enjoyed. These two aspects also were not considered by the lower Appellate Court. ( 17 ) THEREFORE, this is a fit case where the Judgment and Decree, of the lower appellate Court should be set aside and the appeal should be remanded to the lower appellate Court for fresh disposal of the Appeal keeping in view the observations made in the body of Judgment. The Appeal, therefore, succeeds and the substantial questions are answered accordingly. ( 18 ) THE Appeal is allowed. The Judgment and Decree of the lower Appellate Court are set aside. Civil Appeal No. 91 of 1977 is remanded to the District Court, Valsad at navsari for fresh disposal in the light of observations made in the body of Judgment. If the lower Appellate Court thinks necessary for additional evidence it may permit the parties to do so as permitted under Order. 41, Rule 27 Code of Civil Procedure including additional, oral and documentary evidence. The Appeal shall be decided expeditiously in accordance with law. Cost of this Appeal shall be borne by the parties. .