1. In this case the plaintiffs sued to obtain a perpetual injunction against the defendants, restraining the defendants from obstructing them or their men, carts and ploughs while passing through the passage in suit.
2. The plaintiffs are the purchasers of Survey No. 118-B. To the north of Survey No. 1 08-B there is Survey No. 118-A owned by the Saraspur Manufacturing Company, Limited, now in liquidation, defendant No. 1 being appointed the liquidator. But the survey numbers originally belonged to one Chhagan Jhaver and his two sons. Chhagan Jhaver sold Survey No. 118-A to one Panachand Gopal in 1902. Panachand's daughter sold it to one Lalbhai Sheth on June 28, 1907, by Exhibit 40. The interest of Lalbhai was conveyed to the Saraspur Manufacturing Company on May 31, 1924. The plaintiffs purchased Survey No. 118-B by Exhibit 23 dated July 9, 1904. In the sale-deed passed to the plaintiffs there is a recital as follows :-
The owner of this field has got a way through the field of Panachand Gopal (through survey No. 118-A at present belonging to the Saraspur Manufacturing Company, Limited) for the purposes of taking his plough, carts and bullocks and for passing and re-passing of his men. He has got a right to pass and repass through the same for ever.
3. The learned Subordinate Judge held that the plaintiffs proved the right of passage over the said site for more than twenty years, were, therefore, entitled to the injunction sought and passed a decree in favour of the plaintiffs. Before the learned District Judge it was not disputed that there was a right of way to Survey No. 118-B over Survey No. 118-A, but he found that the burden of the easement was increased by the new use to which the respondents put the dominant tenement Survey No. 118-B, by building chawls on the land, and that the right of way over Survey No. 118-A was for cultivation only, and modified the decree of the lower Court by addition of the words :-
But the plaintiffs are not entitled to a right of way for any other purpose but for the cultivation of survey No. 118-B and for the passage of men, bullooks, ploughs and carts for this same purpose.
4. It is urged on behalf of the appellants that there was an express grant of a general right of way and therefore the grant could not be restricted to access to the land for purposes for which the access would be required at the time of the grant, and that the plaintiffs were entitled to the access of the land for any purpose whatsoever. There appears to be authority for the proposition that where there is an express grant of a private right of way to a particular place to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for the purpose for which the access would be required at the time of the grant. See Finch v. Great Western Railway Co. (1879) 5 Ex. D. 234 To the same effect; are the decisions in the cases of United Land Company v. Great Eastern Railway Company (1875) L.R. 10 Ch. 586 ; Newcomen v. Goulson (1877) 5 Ch. D. 133 ; and S.E. By. Co. v. Cooper  1 Ch. 211.
5. On the other hand, it is urged that this point was not raised either in the pleadings or in the issues before the lower Courts and should not be allowed to be raised for the first time in second appeal. The plaintiffs referred to the covenant relating to the right of way in the sale-deed passed to them by Chhagan in para. 5 of the plaint, but no issue was raised on the point of a grant of a general right of way before the Subordinate Judge. The sale-deed passed by Chhagan in favour of Panachand was not produced by the defendant. A copy of the registered document could not be produced by the plaintiffs on account of the destruction of the records at Ahmedabad. In Exhibit 40, the sale-deed passed by Panachand's daughter in favour of Lalbhai Sheth, it is stated that none has a right of passage through Survey No. 118-A. There are not, therefore, sufficient materiaLs, on the record to show that when the sale-deed was passed in 1902 by Chhagan in favour of Panachand a general right of way was reserved in his own favour in respect of Survey No. 118-B over Survey No. 118-A sold to Panachand. The learned Subordinate Judge held that the plaintiffs proved the right of way at least since July 9, 1904, when the sale-deed, Exhibit 23, was passed in their favour and that they enjoyed the easement for more than twenty years. The right of way was denied by the defendant. The sale-deed was used before the Subordinate Judge as evidence for the right of way for men, cattle, carts and ploughs. The right of way was based on prescription for more than twenty years from the date of the sale-dead. Evidence was also led to show that the plaintiffs were entitled to the right of way as an easement of necessity. There was no issue raised before any of the lower Courts on the point that there was a grant of a general right of way. Having regard to the pleadings and the issues raised in both the Courts, I think that the plaintiffs should not be allowed at this stage to raise the point that the plaintiffs had a grant of the general right of way over Survey No. 118-A in favour of the dominant tenement Survey No. 118-B, It is, therefore, unnecessary to consider whether the recital in the sale-deed, Exhibit 23, amounts to a general right of way. If the plaintiffs had made the case in the plaint and raised an issue on the point that the plaintiffs had a grant of a general right of way, Section 23 of the Indian Easements Act, which presumably applies to easements by prescription or easements of necessity, would not apply, and it would not be necessary to consider whether the plaintiffs have changed the user and imposed an additional burden on the servient heritage. Section 20 of the Indian Easements Act lays down that:-
The rules contained in this Chapter are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed.
6. There is no evidence of a contract between the owner of Survey No. 118-A and the plaintiffs or their predecessor-in-title. At the time of the sale-deed passed in favour of the plaintiffs, their vendor Chhagan had ceased to be the owner of Survey No. 118-A. There is only a recital in the sale-deed passed in favour of the plaintiffs by their vendor. I think, therefore, that the plaintiffs are not entitled in second appeal for the first time to raise the question as to whether the plaintiffs have a general right of way by virtue of any contract or grant.
7. It is further urged cm behalf of the appellants that even if the plaintiffs are not allowed to raise the question in second appeal as to the grant of a general right of way, and therefore Section 23 applies to the easement in question, the decree is erroneous as the learned Judge has restricted the right of way to be used only for the purposes of agriculture. It appears that the plaintiffs have built; chawls on Survey No. 118-B, and the learned Judge has raised an inference from the very fact of the change of user that an increase of burden is imposed on the servient tenement, and therefore has restricted the right of way for the passage of men, bullocks, ploughs and carts for agricultural purposes. Section 28 of the Indian Easements Act lays down that-
Subject to the provisions of Section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that ho does not thereby impose any additional burden on the servient heritage.
8. It is, therefore, permissible for the owner of the dominant tenement to change the user of his land provided that he does not thereby impose any additional burden on the servient heritage. In Desai Bhaoorai v. Desai Chunilal ILR (1899) 24 Bom. 188, 1 Bom. L.R. 658, where the defendants had a right of way to their field which had been used for agriculture and subsequently converted their field into a timber depot, it was held that the plaintiff, the owner of the servient tenement, was entitled to an injunction restraining the defendants from using the way otherwise than for agricultural purposes. There is nothing in Section 23 of the Indian Easements Act preventing a change of user of the dominant tenement. The only condition imposed by Section 23 is that by reason of the change of user the burden imposed on the servient tenements is not increased. In Jesang v. Whittle ILR (1899) 23 Bom. 595, 1 Bom. L.R. 37 it was held that under Section 23 of the Indian Easements Act a right of way only for agricultural purposes may be used for the purposes of a factory provided no additional burden is thereby imposed on the servient heritage. Similarly, in Manehersha Sorabji v. Virjivallabhdas ILR (1926) 50 Bom. 635, 28 Bom. L.R. 1158, it was held that where a dominant owner, who has acquired a right of way over the servient heritage for the agricultural uses of his land, seeks to use that right of way for non-agricultural purposes, he has a right to do so provided that an additional burden is not thereby imposed on the servient heritage. In that case the decree of the lower Court demarcated a passage of six feet for carts, ploughs, cattle and men for agricultural purposes. The High Court varied the order by directing that the defendant, his agent, servants and workmen be perpetually restrained from obstructing the plaintiff, his agent, servants and tenants, to use the way of the breadth of six feet as settled by the Commissioner for their carriages, carts, ploughs, cattle and men, and that if in future the defendant had any reason to complain that the burden on the servient tenement was increased by the plaintiff's user, he could apply to the Court to have it decided that the plaintiff was not entitled to increase the burden. The decisions in the cases of Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch. D. 362 and Corporation of London v. Rigga (1880) 13 Ch. D. 798 are not inconsistent with; and do not justify a departure from, the construction of Section 23 of the Indian Easements Act adopted by this Court in Manchersha's case. The owner of the dominant tenement is entitled to alter the mode and place of enjoying the easement, and the owner of the servient tenement can complain only in the event of the imposition of an additional burden on the servient tenement.
9. The learned District Judge has raised an inference that the burden on the servient tenement is necessarily increased by virtue of the change of user of the dominant tenement. We are unable to accept that inference which is based on the fact of the mere change in the user of the dominant tenement in the absence of any issue on the point raised in the trial Court. We do not think that it is necessary to raise that issue and to send it down for decision to the lower Court and allow the parties to lead evidence on that point. We think that it would be sufficient if we adopt the decree that was passed in the case of Mandhersha Sorabji v. Virjivallabhdas ILR (1926) 50 Bom. 635, 28 Bom. L.R. 1158. The learned District Judge by restricting the use of the passage for agricultural purposes has denied the owner of the dominant tenement the right to change the user of the dominant tenement according to Section 23 of the Indian Easements Act provided that the burden on the servient tenement is not thereby increased. The learned District Judge could have raised an issue as to whether by the change of user the burden on the servient tenement was increased and sent it down to the lower Court for a finding before restricting the right of way to agricultural purposes.
10. We would, therefore, reverse the decree of the learned District Judge and vary the decree of the learned Subordinate Judge by directing that the defendant, his agent, servants and workmen be perpetually restrained from obstructing the plaintiffs, their agent, servants and tenants to use the way of the breadth of eight feet, which should be demarcated by the learned Subordinate Judge in execution, for their men, cattle, carts and ploughs. It would be permissible for the defendant as owner of the servient tenement under Section 22 of the Indian Easements Act to demarcate a passage of eight feet in a manner so as to be the least onerous to him by providing the passage of eight feet along the side of the boundary of Survey No. 118-A described in the plan by the letter's FEA B, If in future the defendant has any reason to complain that the burden on the servient tenement is increased by the plaintiffs' user, he can apply to the Court to have it decided that the plaintiffs are not entitled to increase the burden.
11. It will be possible for both the parties to arrive at an amicable arrangement as to the repairs of the passage of eight feet.
12. Under the circumstances of the case, I would order each party to bear his own costs throughout.
13. I have had the advantage of perusing the judgment of my learned brother, and as his judgment covers the whole ground there is very little that I need add to it. Although in the plaint the plaintiffs referred to the recital about a right of way through Survey No. 118-A contained in the sale-deed passed to them by Chhagan Jhaver, the former owner of both fields, and although they described this recital as a ' covenant ', their claim was not based on an express grant but on user ' without interruption for over twenty years '. The issue raised was in general terms: 'Do plaintiffs prove that they have a right of way as alleged ?'. But what the evidence showed and what the Court held proved was user for more than twenty years. It is clear from the judgment of the District Judge in appeal that no claim to a right of way by express grant was urged before him either. I do not think that the plaintiffs can be allowed to urge such a claim now. A new point may be raised for the first time in second appeal, but only when it is a pure question of law arising on the findings of the Courts below and not affected by any facts outside those findings. That is not the case here. The considerations which apply to a right of way arising by express grant and to a right of way arising by prescription are materially different, as the authorities quoted before us and referred to by my learned brother establish. On the record as it stands it would be impossible to come to a confident conclusion that there was in fact any express grant to the plaintiffs' predecessor-in-title of a general right of way through the adjoining field, which had been sold to the defendants' predecessor-in-title before the sale of Survey No. 118-B, the dominant tenement. It is true that the defendants have not produced the earliest document of title. Their failure to do so (which has not been very satisfactorily explained) might justify a presumption that the document would not have supported the defendants' case: Section 114 (g) of the Indian Evidence Act. But it would be too much to presume that the document would have supported the plaintiffs' case, or at any rate that it would have supported the case now for the first time put forward, namely, that there was an express grant of a general right of way.
14. We must, therefore, deal with the case, as the lower Courts have dealt with it, on the footing that the plaintiffs' right of way is based upon prescription. But even on that view, as my learned brother has pointed out, the limiting clause which the District Judge has directed to be added to the trial Court's decree cannot be justified, It appears that his attention was not called to the case of Manchersha v. Virjivallabhdas : (1926)28BOMLR1158 . I agree that we should follow that decision in drawing up the decree in this case, I also agree with the order proposed as to costs.