Norman Macleod, Kt., C.J.
1. The plaintiffs sued for an injunction against defendant Nos. 1 to 3 restraining them from using the way in question as a way for Bhangis and other persons of an untouchable class to clean the privy intended to be erected by them. The plaintiff's' claim has been rejected in both Courts, The defendants 1 to 3 are the owners of a house which is marked on the left aide of the plan, and they instituted Suit No. 623 of 1912 against the present plaintiffs and defendant 4 to establish their right of passage for persons, cattle, carts etc., over the open ground in front of the houses of the then defendant. The then plaintiffs' right of easement was held to be proved to a passage of six feet in width, and a decree was passed in their favour, together with an injunction for the removal of the obstruction placed by the then defendant. At that time the privy in the defendants' house was situated at the opposite end of their premises, and there was no suggestion during the proceedings in that suit that the defendants had over used the road, or the ground over which they claimed the right of way for the purpose of removing night-soil from their privy. They now wish to alter the position of the privy, and claim that they are entitled to a passage for the Municipal sweepers carrying night-soil from their privy over the passage which is referred to in the decree in Suit 623 of 1912.
2. Under Section 28 of the Indian Easements Act, the extent of any easement, (other than an easement of necessity), and the mode of its enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose, a right of way of any one kind does not include a right of way of any other kind. Therefore when this fight of way was fixed by the decree in Suit No 623 of 1912, it is quite clear it was never intended by the Court to hold that the then plaintiffs had acquired a right of way over this ground for the Municipal sweepers removing night-soil from their privy.
3. Taking into consideration the conditions in this country, it seems to me that if a party is able to prove that he has used a certain way for himself and his servants during the time required by the Indian Easements Act, the Court holding that he has a right of way is bound to consider the evidence in the ease, and decide in what way exactly the right of way claimed has been used.
4. We have been referred to the case of Esubai v. Damodar Ishvardas I.L.R. (1891) Bom. 552. That was a case where the plaintiff claimed an easement of necessity, and different considerations apply in the case of such an easement. Here there is no question of an easement of necessity. That would only arise supposing access to the defendants' property could only be obtained through the passage over the plaintiffs' land.
5. A very similar question arose in Narayanacharya v. Ganu (1920) S.A. 255, decided on the 13th February 1920. The plaintiff there proved that he and his people had a right of passage over the plaint ground, and he sued to obtain a perpetual injunction restraining the defendants from obstructing his sweeper. But it was proved that the plaintiff had erected a privy within five years of the suit, and that before his right of passage over the plaint ground had been acquired the passage could never have been used by the sweepers carrying night-soil. It was held in the lower appellate Court that the right which the plaintiff had established did not include the right of passage for a sweeper carrying night-soil. That decree of the lower appellate Court was affirmed by us in Second Appeal.
6. In my opinion, therefore, it was never intended when the Court passed the decree in Suit 623 of 1912, that the then plaintiffs should be held to have a right of passage over the way for their sweepers carrying night-soil because there was no evidence whatever that the then plaintiffs had used the passage for their sweepers, and if such a passage had been claimed, we cannot say what the Court would have decided. The decree in that suit upholding the then plaintiffs' claim to a right of way must be strictly construed according to the facts of the case, and to hold now that the right of way of the present defendants for themselves and their servants should be extended so as to include a right of passage for sweepers carrying night-soil would be going, in my opinion, further than the decree intended. I think then that the appeal must be allowed and the plaintiffs' claim decreed with costs throughout.
7. The defendants Nos. 1 to 3 have acquired by the decree of a Civil Court a very extensive right of way over certain property common to the plaintiff's and defendant No. 4. It is a right of way for the passage of persons, cattle, carts etc. to the house of the defendants. Of course it includes everything that is properly incidental to such a right of way. If, for example, the defendant at the time that his right of way was declared by the Court possessed only one cart, and he afterwards came to possess two or three carts, he would have the right of way for all those carts. If his family become larger in number, or his servants more numerous, he would have the right of way for the additional members of his family and the additional servants. All that is included in the fundamental idea of a right of way, and is properly incidental to it.
8. But when you come to what is the subject of contention in this appeal, and that is a right of way for Municipal sweepers carrying night-soil, you introduce a new element altogether. It certainly is not generally incidental to a right of way that a sweeper carrying night-soil should use it. Such a person is not one of the normal class of servants of a house-hold in this country. Even in Municipal towns where there are privies and Municipal sweepers, even there the passage of a sweeper over a particular way is by no means a necessary feature of the general use of that way. There are ways over which these sweepers may pass; and there are other ways over which they do not pass. So that we have in a case like the present to determine whether the right of way as declared did either expressly or impliedly include the right of Municipal sweepers to pass over the way. It certainly did not expressly include it. In order to say whether it impliedly included it, we have to examine the circumstances of the case at the time when the right of way was declared by the Court. At that time there was no privy in existence which sweepers would reach by using this particular way. There was a privy, but it stood elsewhere, and was approached by a different way altogether, and what the defendants have done is to remove the old privy, or at any rate establish a new one, which can only be served apparently if the sweepers are allowed to use this particular way. By so doing the defendants have introduced a new element into the matter which the established circumstance's show was not, and could not have been, in the contemplation of the parties, or of the Court, at the time when the right of way was declared by the Court. I. think, therefore, having regard to the circumstances which are established, that the appeal must be allowed and the claim decreed with costs throughout.