1. This is a plaintiffs Second Appeal against his partial failure in his suit in the Courts below though the partial failure has been different in extent in the lower Courts.
2. The parties to this appeal will be referred to by the rank and position assigned to them in the trial Court.
3. The Plaintiff is the perpetual lessee of about 44 cents of land bearing S. No. 152/lB2 within the Municipal
limits of Mangalore City. The lessor is the United Basel Mission Church in India Trust Association (hereinafter referred to as the Trust). His Perpetual lease was first granted in the year 1951 and later on, a small area was added to the first lease in 1957. In this circumstance in 1960 a composite lease of the two bits of properties was executed. It was plaintiff's case in the trial Court that he had acquired under the three lease deeds an exclusive right to the pathway leading from what is known as 'Balmatta new Road' to the leased property. In the first instance the entire pathway was restricted to 12 ft. in width and subsequently in 1960 on his representation the Trust allowed him a wider pathway from a point below the entrance to certain other Church premises occupied by the defendants. This was made clear by the plaintiff by attaching a sketch to the plaint showing that point E to El was the entrance to the defendant's compound. On account of the unevenness of the terrain and different levels of the main pathway, the main road, the defendant's property and the plaintiff's property, he wanted to level the road as well as build stone revetment so that, the earth between point El to Point F in the plaint sketch would not be eroded by the rains. When his workmen went to carry out these operations the defendants obstructed and the plaintiff being a peace-loving citizen chose to approach the Court for appropriate reliefs and did not carry out the work in the light of the opposition from the defendants. On these main averments his prayer was: (1) for a permanent injunction restraining the defendants and others claiming through or under them from interfering with the plaintiff's right to level the approach road right up to his entrance making it easier for his vehicles to move in arid out using the right of way: (2) for a permanent injunction restraining the defendants and others claiming through a under them from interfering with the plaintiff or his workmen in the act of building stone revetment to the northern elevated edge of the pathway adjoining the property leased to the defendants; (3) for a permanent injunction restraining the defendants, their people and servants from cutting any portion of the pathway particularly in the portion adjoining the defendants, property.
4. The defendants resisted the suit denying most of the allegations and the rights claimed by the plaintiff pointing out that Exhibit-2, the lease granted in their favour by the Trust assured them the use of the pathway and therefore the plaintiff was not en titled in any way to interfere with or alter the existing, pathway in its entirety. The other averments in the written statement are not relevant to be noticed for the purpose of disposing of this second appeal. On theft Pleadings, the trial Court framed as many as eight issues which are as follows:
(1) Plaintiff to prove that the portion marked black in the plaint plan has been granted on perpetual lease to him by the U. B. M. C. T. Association as per lease deed dated 22-11-1960?
(2) Plaintiff to prove that the defendants on 17-10-1967 obstructed the plaintiff, from levelling this portion marked black to bring it in touch with the 12 feet pathway?
(3) Plaintiff to prove that the defendants have begun stealthily to cut the northern edge of the pathway along El F shown in Plaint Plan and to add this portion marked black in the plaint Plan to this B schedule Property?
(4) Defendants to prove that this black marked portion within their possession and in the same level as B schedule property and occupation and U. B. M. C- T Association has 'no right to dispossess them?
(5) Defendants to prove that this 12 feet pathway was formerly much lower and its height has been raised by the plaintiff to its present height?
(6) Is this bad for non-jointer of necessary parties?
(7) Is the plaintiff entitled to the permanent injunction sought for?
(8) To what reliefs if any to which the plaintiff is entitled?
The trial Court found all issues on facts in favour of the plaintiff. But the trial Court granted Prayer No. 1 and Prayer No. 3 i.e., injunction against the defendants restraining them from interfering with the levelling of the portions of the suit pathway for better enjoyment of his right to use the pathway and restraining the defendants from cutting any portion of the pathway adjoining the property of the defendants. It refused Prayer No. 2 on the ground that building of revetment was not Permissible in law. Aggrieved by the Judgment and decree of the trial Court, both the plaintiff and the defendants filed appeals in the Court of the Civil Judge, Mangalore. They were Regular Appeals Nos. 83 and 87/1972 respectively. The lower appellate Court disposed of the two appeals by a common judgment. The defendants succeeded in the lower appellate Court partially to the extent that the first prayer granted by the trial Court was refused by the lower appellate Court. Aggrieved by the findings of the Courts below as above, the plaintiff has preferred this second appeal.
5. The short question for consideration in this appeal is whether the lower appellate Court was correct in refusing prayers Nos. 1 and 2 in the light of the evidence placed before it and in the light of the finding of facts arrived at by the Courts below.
6. I have already pointed out that the trial Court found all issues in favour of the plaintiff. In other words in so far as it related to the facts of the dispute before the trial Court the case made out by the plaintiff was accepted. The only reason why the trial Court and the lower appellate Court did not grant, in one case prayer No. 2 and in the other case both prayers Nos. 1 and 2. was on the ground that it was impermissible in law to permit the plaintiff to level the road i.e., interfere with the existing condition of the pathway in any manner either by levelling or by putting any kind of construction to prevent erosion.
7. Mr. B. P. Holla the learned counsel appearing for the plaintiff-appellant has drawn my attention to the clear language of Section 24 of the Indian Easements Act, 1882 (hereinafter referred to as the Act) and Illustration (c) thereto which reads as follows: .
'24. The dominant owner is entitled, as against the servient owner to do all acts necessary to secure full enjoyment of the easements: but such acts must be done at such time, and in such manner as without detriment to the dominant owner. to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable the damage (if any) caused y the act to the servient heritage.
Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.
(a) & (b) ........ .......... ......... .........
(c) A. as owner of a certain house, has a right of way over B's land. The way is out of repair. or a tree is blown down and falls across it. A may enter on B's land and repair the way or remove the tree from it...... .......... ......... .......... .........'
8. It is his argument that the lower Courts erred in coming to the conclusion that it was impermissible in law to interfere with the condition of the pathway in any manner so as to affect the rights of the defendants. It is contended for the plaintiff-appellant that Section 24 of the Act read with Illustration (c) extracted above clearly provided for such a contingency for the better enjoyment of the right. In this behalf he has drawn my attention to the case of Newcomen v. Coulson ((1877) 5 Ch. D. 133). In the said decision the Master of Rolls held as follows:
'Then it was said, admitting the owner of each house to have a right of way, still the grantees have no right to enter upon the allotments over which the right of way is granted for the purpose of laving down a metalled road. Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose bf making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-wav to my house I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me because my carriage would sink up to the naves of the wheels in a week or, two or in wet weather, It cannot be contended that the word 'repair' in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the defendants have a right to make an effective carriage-way, going as they are going by the shortest route, and not interfering with the land to a greater extent in width than the width of the street pointed out by the deed itself.'
Mr. Holla contends that Sec. 24 of the Act is no more than the codification of the principle enunciated in the above decision.
9. On the other hand, Mr. B. N. Acharva learned counsel appearing for the respondents has strenuously contended that whatever may be the other rights of the plaintiff, the plaintiff had certainly no right to curtail in any manner the right of the use of the pathway to have access to the defendants premises which they had acquired under Exhibit-P2 particularly in view of the decision of the Courts below that the right of common pathway extended even beyond point El in the plaint sketch, It is his further argument that as a matter of fact the Courts below having arrived at the conclusion that the defendants had right even beyond. El. this Court should not interfere with that finding of fact.
10. I am unable to accept this argument. First it is not a finding of fact. The facts in this case are admitted. What has not been admitted by the defendants has been established by the plaintiff through documentary and oral evidence. A perusal of Exhibit-P2 clearly shows that the right in the pathway leading from the Balmatta New.Road to the defendants' property was a manual right assured to them even though the lease in their favour was subsequent to the lease executed in favour of the plaintiff by the Trust. It is seen from Exhibit-P3 the lease deed in favour of the plaintiff that while he has exclusive use of the pathway to reach the leased property that exclusive right is subject to the right of user or the pathway by the two adjoining properties owned by the Church and at the relevant time tenanted. In other words, the exclusive right of the plaintiff to the pathway was conditioned by the existing user of the same right by the occupants of Doors Nos. 129/16 and 130/16 in T. & No. 152/1B. In fact in Exhibit-P3 the right enjoyed by the tenants and continued are set out in the following terms:
'to use the approach road for their men, cattle and vehicle from the Balmatta New Road to their house com-
pounds ...... ........ ....... tenants will have no higher rights than the easementary right of way that they will not be entitled to or claim to station any vehicles on the way or cause any other obstruction or put the said land to any other use ....... ........'
The above description of the right enjoyed by the tenants is subjected to the exclusive right of the user of the approach road marked in the plan in red conferred on the plaintiff by the deed of lease Ex. P3. It is seen from the lower appellate Court's judgment that the only reasons why that Court came to the conclusion that the right of, the use of the pathway by the defendants extended beyond point El of the plaint sketch was that the tenants had the right to use the said pathway and the plaintiff had not been given any exclusive right to the use of the pathway showed either in red colour or black colour in the plaint sketch. This is not a finding of fact. If it is a finding of fact at all, it is arrived at clearly ignoring the recitals in Exhibit-P3 which as already Pointed out commences with the conferment of exclusive right on the plaintiff subject to the right of use of the pathway up to the compound by the tenants of the adjoining property namely the defendants. Even in Exhibit-P2 the lease is in favour of the defendant. What has been given to them is the manual right of using the existing pathway and no more. The word 'manual' when so used signifies the existing permissive right of user and not a right which may be acquired by the tenants at a subsequent date. If it is so understood then the point of entrance to the defendants property in the pathway being between points E and El in the plaint sketch (supported by the evidence of -the Commissioner's report) the existing right in the pathway in so far as the defendants are concerned must end at point El. The argument of Mr. B.V. Acharya that the tenants have a right to enter from the pathway even beyond point El in the plaint sketch while being a physical possibility cannot acquire the form of a legal right merely because it is possible to use another point of entrance to their compound from the pathway. That would not be the same as the right assured to them of entry between the point E and point El. Thus viewed the lower appellate Court completely misdirected itself in coming to the conclusion that the defendants had a right of entry at any other point in the pathway between points E and El in the Plaint sketch unless it was shown to exist as a 'manual right'.
11. This leaves therefore the only question whether the plaintiff's entitled to the injunction as prayed for at prayers 1 and 2. I have already extracted the relevant portion of the decision of the Court, of Appeal in England. Illustration (c) of Section 24 of the Act amply demonstrates that a person who has a right of way has necessarily the accessory rights to secure the full enjoyment of that right by doing such acts which will render that right useful to him. t is in evidence that originally 12 ft. width of the pathway was not sufficient for the better enjoyment of the suit schedule property of the plaintiff which had been leased. It was at his request that the Trust while executing the composite lease in 1960, as also Exhibit-P2 the subsequent lease executed in favour of the defendants that the pathway was widened as per the plaint sketch. This has not been in dispute. If the plaintiff in order to get greater benefit wants to level the pathway between points El and F which as found by the Courts below is at a higher elevation (the highest being 4.75 feet) than the defendants' land on the northern side of the pathway after point El. it is difficult to see how the right to use the pathway from Balmatta New Road by the defendants which ceases at point El as held by me is affected.
There was no justification for the Courts below in the absence of any objection from other quarters to refuse to grant prayers 1 or 2 or both of them. The plaintiff being the dominant owner of the easementary right in the pathway he has necessarily the accessory right to keep the pathway in a usable condition throughout the year and if on account of the difference in levels of possible erosion of soil at any point of the pathway, has need to do certain acts which will render the pathway fitter for his purposes without affecting the right of use of others who have such rights he should not be precluded either from levelling the pathway or to take necessary steps to erect such construction as may be necessary to prevent the erosion provided he does not encroach on the land between points El and F in the plaint sketch leased to the defendants. It is however made clear that it the plaintiff in any way damages or encroaches on the property of the defendants in his attempts to render the pathway between El and F better suited for his use he shall repair such damages and vacate such encroachments.
12. In the result, the judgments of the Courts below in so far as they refused prayers 1 and 2 respectively shall be set aside. The suit will be decreed as prayed for. But in the circumstances of the case there will be no order as to costs.
13. Appeal allowed.