1. This suit was originally filed by one Vanmalidas Bhicabhai, as a trustee of certain premises situate t Sham Sett Street outside the Fort of Bombay, against the first defendant, who is the owner of certain premises situate to the north of the said trust premises, claiming inter alia that the first defendant, his servants, agents and workmen might be restrained by an order and injunction of this Court from encroaching or trespassing on the trust premises as they had done on October 8, 9 and 10, 1924, in the manner following, that is to say, that the defendant and his servants, agents and workmen had entered upon the ground floor of the trust premises and upon a Chowkin the trust premises adjoining the southern wall of the defendant's premises for the purpose of plastering the said southern wall. The original second defendant was one of the trustees of the said premises with the plaintiff, and as he refused to join in the filing of the suit, he was made a party defendant, The plaintiff resigned as the trustee and the Official Trustee was there after brought on the record in his place. The original first defendant died and his legal representatives were brought on the record as defendants Nos. 1 1(a), 1(b) and 1(c). I shall hereafter refer to them as defendants.
2. The original first defendant put in a written statement whereby he alleged that the two properties in suit formerly belonged to common owners, viz,, Tyeballi Ahmedji, Abdul-ally Ahmedji and Abdul Hoosein Ahmedji, who by a conveyance, dated July 2, 1923, conveyed the trust property to the plaintiff's predecessor-in-title subject to a covenant by the purchaser, his heirs, executors, administrators and assigns that he and they would not raise the building on the land conveyed to a greater height than it was on February 11, 1903, and would keep the chowk in the premises conveyed in the same condition as it was in on the said date. The defendant contended that the said covenant was inserted in order to preserve to the transferors access of light and air to the windows in the property retained by the transferors and ultimately conveyed to the first defendant on June 12, 1917. He further contended that by reason of the fact thatthe plaintiff's building was lower than the defendant's building and by reason of the existence of the said open chowk it was necessary to plaster the portion of the defendant's southern wall which abutted on the said open chowk in order to protect it from wind and rain, and stated that in order to plaster such wall, he had placed planks in his building so that they projected through the windows thereof and had erected on the projecting portions of such planks scaffolding to enable his workmen to carry out the said work. He further contended that the plastering of the said wall was incidental to and necessary for the full and proper enjoyment of the said easement of light and air, and that by reason of the facts stated in para 2 of the written statement he was entitled to erect a scaffolding over the ' said open chowk in order to enable his workmen to carry out such plastering work. At the hearing of the suit two issues were raised :-
(1) Whether the defendanta are entitled to raise the scaffolding in the open chowk of the plaintiff for the purpose of plastering or white-washing the south wall of defendant's premises
(2) Whether for that purpose the defendants were entitled to enter the plaintiff's chowk through the plaintiff's property ?
3. It was admitted by Mr. Babadurji for the defendants that their workmen did enter the plaintiff's chowk through the plaintiff's property for the purpose of plastering and whitewashing the wall of the defendants abutting on the said chowk.
4. The defendants, as the successors of the former owners who owned the two properties, are entitled to the benefit of the covenant in the conveyance to the plaintiff dated July 2, 1903. That covenant, however, does not either expressly or impliedly create an obligation on the plaintiff to allow the defendant or his men to enter the chowk through plaintiff's property for the purpose of plastering or repairing the southern wall of defendant's premises. But the defendants have claimed that right in paragraph 4 of the written statement on the ground that it was necessary for the full enjoyment of the said easement of light and air. Now there cannot be an easement of necessity for enabling the dominant owner to enjoy another easement. At the hearing, however, Mr. Bahadurji for defendants put forward the defendants' claim on the ground that the right to enter the plaintiff's chowk and to erect a scaffolding thereupon for the purpose of plastering and white-washing the defendants' wall, was absolutely necessary for the beneficial enjoyment of the defendants' property and that the defendants were entitled to the said right as an easement of necessity under Section 13 (c) of the Indian Easements Act. I allowed the defendants to put forward that contention and the parties to lead evidence on the point.
5. The first question then to consider is whether the right claimed by the defendants is in the nature of an easement. Mr. Mulla argued that it was not, and that it did not fall under thedefinition of 'easement' as given in Section 4 of the Indian Easements Act. 'Easement' is defined as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. The act which the defendants claim a right to do here is to erect a scaffolding on the plaintiff's land and for the purpose of so erecting it to enter into the chowk which is the plaintiff's property through the adjoining building of the plaintiff. The right to erect a scaffolding is claimed as being for the beneficial enjoyment of the defendants' property on the ground that the wall of their building abutting on thechowk must be plastered and white-washed from time to time in order that the defendants may keep it in proper condition so as to enable them to live in and enjoy their said property, and that unless they are allowed to go on the plaintiff's land and erect a scaffolding thereupon, they cannot plaster or white-wash the said wall,
6. Mr. Mulla argued that an easement of the nature claimed here had not been heard of before. I think there was some misapprehension as to the nature of the right claimed in the argument of Mr. Mulla. He seemed to think that the easement claimed was the right to plaster the wall. But on a proper consideration of the facts it appears to me that there is a clear fallacy in the argument, because the easement claimed here is not the right to do something to the defendants' own property but the right to do something on the plaintiff's property for the beneficial enjoyment of the defendants' property. The plastering is for the beneficial enjoyment of the defendants' property, and the act which they claim the right to do to enjoy that benefit is an act which is to be done on the plaintiff's property, In my opinion, if such a right exists, it would clearly be in the nature of an easement. If the two properties had belonged, as they do now, for a long time to different owners, the owner of the property belonging to the defendants could have acquired the right claimed as an easement by prescription or by grant under the Indian Easements Act, For example, if the defendants had gone on the property of the plaintiff without the leave or license of the plaintiff, and as a matter of right for the purpose of erecting a scaffolding on the chowk, and had fromthat scaffolding plastered and white-washed their own wall, and if that right had been exercised for the period required by the Indian Basements Act, it would have ripened into the right of easement which the plaintiff could not have denied.
7. Mr. Mulla argued that the English Courts had declined to create easements of a new kind. There is really no easement of a new kind which is claimed in this suit. However, if the right comes within the four corners of the statutory definition of an easement whether it be a new one or novel one, the Court is bound to give effect to it.
8. In Simpson v. Mayor of Godmanchester (1896) 1 Ch. 214 the question was considered by the Appeal Court. The right claimed in that case was a right to open in the times of flood certain river locks belonging to the plaintiff'. By a deed of 1689 a predecessor of the plaintiff had granted to the Corporation the right that the miller, or other appointee of the Corporation, should open the locks in question in times of flood. Lord Herschell in his judgment at page 218 observes as follows :-
It appears to me to be an casement within the definition of the term at the commencement of Mr. Gale's work on Easements, and I think that that) is a perfectly correct definition. Easements may be of various characters, and it is a fallacy to suppose that every easement must be brought within some particular class which has been recognised, such as the class relating to watercourses, or light or air or otherwise. If a rightin ganted by the owner of land to another person to outer and to do something on the grantor's land for the benefit of the land of that other person that prima facie is an easement. And I donot see any reason why there should not be perfectly valid easement in this right to go upon the land of the owner of locks or sluices, and in times of flood raise those looks or sluices to let the water down for the benefit of the land of the person who exercises the right.
9. The definition of 'easement' in Gale on Easements is similar to the definition given in the Indian Easements Act. He defines it as a privilege without profit, which the owner of one neighbouring tenement has of another, existing in respect of their several tenements, by which the servient owner is obliged 'to suffer or not to do' something on his own land for the advantage of the dominant owner,
10. Gale gives at page 27 of his book instances of affirmative easements as held by the English Courts; they include a right to place an advertisement hoarding on the servient land, or to place a sign-post on a common, or to place over neighbouring land clothes on lines or telephone wires.
11. In Moody v. Steggle (1879) 12 Ch.D. 261 the question was whether the plaintiffs, the owners of a public -house, had the right to affix a sign-board to the wall of the defendants' house, as the signboard had been so affixed for upwards of forty years. It was held that the easement claimed was a legal one, and that a grant of it by the defendants'predecessors-in-title to the plaintiffs' predecessors-in-title must be presumed. There the benefit was the advertisement of the public-house which was in a lane, and the sign-board, which was fixed on the wall of the defendants house, gave that advertisement.
12. In my opinion, therefore, an easement could have been created in this case of the nature alleged by the defendants at the hearing.
13. The next question then is whether it is an easement of necessity coming under Section 13(c) of the Indian Easements Act. The claimis based by the defendants on the fact that in 1902-1903 for a period of less than a year, the two properties were owned by a common owner. Before the common ownership, it appears that there was litigation between the then respective owners of the properties and that litigation was put an end to by the then owners of the defendants' property buying the other property. Within a year of such acquisition, the common owners of these two properties conveyed the property of the plaintiffs to their predecessors-in-title, with the covenant as mentioned by me hereinbefore. Nothing is mentioned in that covenant as to the transferors, the predecessors-in-title of the defendants, having any right to enter upon the plaintiff's property or to erect a scaffolding upon the plaintiff's property, for the purpose of plastering or white-washing the wall abutting on the chowk of the defendants property. But Mr. Bahadurji, in my opinion, rightly pointed out that if there was a right by way of an easement of necessity, no covenant was required to support it. Mr. Bahadurji gave me a reference in Indian Cases of a judgment of the Madras High Court where a right of the nature claimed in this suit was held to exist as an easement of necessity. I have not been able to get this judgment; so I do not know the reasoning on which the Court dame to the conclusion; but after giving a careful consideration to the point, I have come to the definite conclusion that the right claimed here cannot be treated as an easement of necessity.
14. Now an easement of necessity is created under Section 13, Sub-clauses (a), (c) and (d). An easement of necessity is not created merely when the easement is necessary, but when it is absolutely necessary for the beneficial enjoyment of the dominant property. As pointed out in Ghhotalal v. Devahankar (1001) 3 Bom. L.R. 601 by Jenkins C.J. the necessity contemplated in Clauses (a), (c) and (d) of a 13 of the Indian Easements Act is an absolute necessity; while in Clause (6) of the section, it is a qualified necessity. There the easement was claimed under Section 13, Clause (b), which is not classed as an easement of necessity under Section 13. The learned Chief Justice observes as follows (p. 602) :-
It is true that the lower appellate Court has found that there was no necessity, but itis clear that the Judge in so deciding had in mind an absolute necessity such as is indicated in Section 13 (a)(c) and (d) and not a qualified necessity such asis contemplated in Section 13 (b). The distinction is obvious : thus a right of way may not be absolutely necessary, and yet necessary for the purpose of enjoying the property as it was enjoyed when a transfer of it took place.
15. This point is also dealt with in Esubai v. Damodar Ishvardas I.L.R(1891) . 16 Bom. 552and in Municipality of City of Poona v. Vaman Rajaram Gholap I.L.R. (1894)19 Bom. 797 In the last case the person who claimed the right of way had another right of way to the property through his own land. It was contended that if the property had been sold to a third party, he would have been entitled to have a right of way through the defendant's land, that therefore, although the plaintiff had a right of way through his own land, still the right of way through the defendant's land was a way of necessity. The learned Judge held that it was not so. The easement of necessity could only be created when it is absolutely necessary for the enjoyment of the dominant tenement. He says (p. 800) :-
If a stranger had bought, he would have got what is called a landlocked tenemen, to which he could only obtain access over the land of his vendor or by trespassing on other people's property. But the defendant having bought could approach his new acquisition through his own premises, and it cannot, therefore, be said that in order to enjoy it, it was necessary for him to pass over his vendor's land.
16. The English cases and the observations in Gale on the point are to the same effect.
17. The question here is one of fact as to whether the right which is claimed is an easement of necessity for the beneficial enjoyment of the property of the defendants. In my opinion, it is not. It may be necessary for the purpose of such enjoyment that the wall should be plastered and white-washed, but it is not absolutely necessary. Admittedly, the common ownership of the two houses lasted for less than a year. The original wall of the defendants' house which abutted on the chowk was built by the owner of that house long prior to the time when the two houses came under common ownership, that is to say, the owner built the wall with knowledge that he ran the risk of not being allowed to go on the neighbouring property for the purpose of plastering or white-washing the wall. This state of affairs continued for a long number of years during which period the then owner of defendants' property could not have claimed as a matter of right to go on the plaintiff's chowk for the purpose of white-washing or repairing his said wall. Then, was the position changed in any way because for a period of less than a year the properties were owned by a common owner Can it be said that during this period of less than a year the whitewashing and plastering became so absolutely necessary that on the severance of the two tenements, the right to do so by going over plaintiff's property was created in favour of the owner of the defendants' property There is no evidence at all of any such enjoyment of the right by the common owners during that particular period. The defendants cannot, therefore, say that by the mere fact of the properties having come under a common owner for a period of a year or so, a right, which otherwise could not have been considered absolutely necessary for the enjoyment of the property, became an easement of necessity. In my opinion, there is really no easement of necessity in this case, and, if my view is correct, there is an end to the defendants' case.
18. As to the evidence laid before me, I may point out here shortly that the evidence of the witnesses on behalf of the defendants has not impressed me at all as evidence of truthful witnesses. It may be that occasionally the wall was white-washed and plastered by the men of the owner of the defendants' property going over the neighbouring chowk, but it must have been with the leave and license of the owner of the neighbouring property. As to the erection of the scaffolding by the defendants' men in the plaintiff's chowk, which led to the filing of this suit, I have no hesitation in accepting the evidence of Mr. Chinoy, the architect of the plaintiff, and rejecting the evidence of the witnesses on behalf of the defendants on the point. They have told a falsehood when they said that the scaffolding was there for nearly two years. The affidavit made by the original defendant in the suit on January 9, 1922 (Exh. B), puts the the matter beyond any doubt. The scaffolding was in fact erected a few days before the filing of the suit. In my opinion, the oral evidence in the case does not affect the decision of the question in issue.
19. There will be a decree in favour of the plaintiff in terms of prayer B of the plaint., and costs of the suit, including costs reserved, if any.