1. This second appeal has been filed by the defendants, The Anjuman Islamia of Bareilly, against the decree in, first appeal No. 146 of 1931 of the learned District Judge in Bareilly in which he allowed part of the appeal of the plaintiff, one Pt. Radhe Lal. The suit of the plaintiff asked for a declaration that the plaintiff was owner of a staircase along with its walls and that the staircase had no concern, with the mosque and that the defendants be absolutely restrained from passing to the mosque through the staircase. This relief was granted by the lower Court and also the third relief that the defendants should roof the staircase of the plaintiff. Some further question has been raised in this appeal in regard to the decree of the lower Court about electric fittings and costs of First Appeal No. 145 of the defendants in, the Court below but no second appeal has been taken against that decree and there-fore we cannot deal with that matter as its is not before us.
2. The history of this staircase is found by the Courts below to be as follows: The Munsif finds that in 1859 the Government added a second storey to a shop which' stands at a cross road in the city of Bareilly and Government also constructed by the side of the shop a staircase for access to the upper storey. On 10th November 1865 this shop was sold and Ram Lal, the father of the plaintiff, purchased the shop with the staircase and the upper storey. This shop is still held by the plaintiff. The documents showing this purchase include a dakhalnama and the beundaries are given in papers 23-0 and 22.C. In 1866 one Sri Ram had a simple money decree against one Mohibullah Khan and he attached sis shops and a staircase to the north of the shops and these shops were by the side of Ram Lal's shop. Ram Lal made an objection to the attachment of the staircase claiming that it was his staircase purchased from' Government. The execution Court ordered that this fact should be notified at the time of the sale. The shops were put up to sales and purchased by one Dhuma Mai in 1866. Ram Lal then filed a regular suit against Sri Ram, the decree-holder, and Dhuma Mal auction purchaser for a declaration of his title to the staircase with the walls facing towards the east. The Munsif decreed this suit on 12th August 1867. An appeal was made to the District Judge. Mr. Vansittart. His judgment is not on the present record but apparently it was sent for by the lower Court and extracts are contained in the judgment of the Munsif and of the District Judge. It is a pity that learned Counsel for the appellant did not send for this record for the purpose of this appeal as the judgment seems to have been somewhat peculiar. The learned District Judge states:
However it is clearly stated in this paper (the judgment of Mr. Vansittart) that, now appellant (Dhuma Mai) pleads that he does not claim the staircase but the right of way.
3. It appears to us that the lower Court is correct in holding that in appeal Dhuma Mal abandoned his claim of ownership to the staircase. It is clear that he had no case on this point because there was the auction Hale certificate in favour of Ram Lal as recently as 1865. For the appellant it was argued that the Court below has lower down stated:
I find also that Dhuma Mai at first admitted that he had no claim to the staircase but he afterwards withdrew from this position and pleaded that lie had made a msitake.
4. We consider that this sentence refers to the pleading of Dhuma Mal in the Court of the Munsif as it is not possible to read this sentence consistently with the other quotation which we have already made on any other supposition. Further, the judgment of the Court below refers to the Munsif's judgment of 1867 in the sentence preceding the quotation which we have just made. The Court below makes the following quotation from the judgment of Mr. Vansittart:
But it was so built as to give a passage to appellant who its in possession of right of way from that day to this day. I admit that 12 years have not passed but it is proved that the right has been exercised from the date that the staircase was built. The appeal is well enough worded for the purpose. I declare the staircase as a common staircase to beth the parties with a right of way to beth parties and in these words I decree the appeal. Each party to pay his own costs.
5. This decree of the District Judge was taken in appeal to the High Court and was confirmed in a brief judgment of two lines. It has beon argued by Mr. Khwaja for the appellants that this passage from Mr. Vansittart's judgment means that he held that the staircase was the joint property of the two parties. In other words the argument is that a common staircase means a staircase jointly owned. We do not think that this is a correct interpretation. We agree with the interpretation placed by the Court below on this judgment and that interpretation, noting the fact that Dhuma Mal, appellant, had withdrawn a claim to the ownership of the staircase and merely claimed a right of way, held that the judgment of Mr. Vansittart did not give joint title to the parties but only gave a right of way to the appellants. Some argument was made by learned Counsel that this right of way would be different from the right of way known to the Easements Act. He was unable to explain what kind of a right of way he meant. He did not claim that the judgment had created a right of way unknown to the law and we see no reason to consider that the right of way mentioned in the judgment was not the usual right of way known to the Basements Act; that is, what was decided was that Dhuma Mai had a right of way to use that staircase for access to the upper storey buildings on the top of the row of shops which he had purchased at auction sale, but that the staircase belonged solely to Ram Lal.
6. In 1911 there was some further litigation between L. Khunni Lal, the successor of Dhuma Mal, the auction purchaser, and the Muslim community, but the plaintiff was no party to that litigation. As a result of this litigation a sale deed was executed by L. Khunni Lal in favour of the defendants of this row of shops in 1914. In this sale deed the property sold gave the northern beundary as 'Zina Lala Saheb.' The vendees afterwards objected that they had also beught the staircase and Khunni Lal, vendor, stated through his counsel that he had no objection to the staircase being included. No supplementary sale deed was executed. Learned Counsel for the appellant has dwelt on this point. It appears to us that Khunni Lal did not believe that he owned this staircase, otherwise he would have included the staircase in the sale deed. There would have been no point in his retaining the staircase when he sold the rest of his property in that place. But if he had included the staircase in the sale deed he would have been liable for an implied warranty of title under Section 55(2), T.P. Act. The method in which this matter was treated by the parties to the sale deed implies that Khunni Lal knew that he had no title to the staircase and he was unwilling to accept the responsibility of including it in the sale deed or in a supplemental sale deed because that would have rendered him liable for this implied warranty of title. The next matter which happened was the demolition by the defendants of the upper storey of the shops which they had purchased by 1916 and these shops have never been reconstructed. The Court below has pointed out that the right of way existed to the shops and with the destruction of the shops the right of way for that purpose came to an end. The trial Court found that on 28th June 1916 the defendants submitted a map of a proposed mosque to the Municipality for sanction and that sanction was obtained and the mosque wan built in 1917-19 and at the same time the staircase which belonged to the plaintiff was rebuilt by the defendants. The lower Appellate Court apparently accepts this finding as that Court states:
It is admitted that the staircase was reconstructed by the respondents (defendants) some time after 1916 when they filed an application with the Municipality for the reconstruction of the nix shops, the disputed staircase and the mosque. As to the circumstances under which they were allowed to rebuild the staircase the evidence is not very satisfactory; the plaintiff says that he protested against the demolition of the staircase but was told by these in charge of the work that he need not worry as the staircase would be rebuilt and improved and thereafter he states that although he objected to what was going on in several respects, he was afraid that trouble would ensue if he pressed his objections and so did nothing further.
7. Now the plan shows that the mosque is at some distance from the staircase and it does not appear from the plan to be on the top of the reconstructed shops although the Munsif in opening his judgment states that there were shops below the mosque. The point of importance is that with the reconstruction of the staircase and demolition of the upper storey of the shops the staircase has since 1916 been used by the defendants for an entirely different purpose from its use prior to that date. The purpose for which the defendants now use this staircase is for persons who desire to worship at the mosque. Previous to 1916 such persons obtained access to the mosque by a staircase on the western side of the mosque whereas the present staircase lies at some distance east of the mosque. The western staircase is on property which belongs to the mosque and the mosque has since 1916 built a shop where they formerly had that western staircase. Now one of the points against the appellants is that the right of way recognized by Mr. Vansittart, the District Judge, in 1868 and upheld by the High Court was a right of way to the upper storey of certain shops. The right of way now claimed by the defendants is a right of way up the same staircase to a different building, namely a mosque. Learned Counsel was asked if he could show any ruling which would entitle the owner of a right of way to one building to transfer that right of way to an entirely different building in a different place and he was unable to produce any ruling on this point. It appears to us that it is quite clear that the right of way could not be transferred in this manner. It is to evade this difficulty that Mr. Khwaja claimed that his right of way was something unknown to the Easements Act. The definition of a 'right of way' in the Easements Act, Section 4, clearly shows that the easement is for the benefit of the owner or occupier of certain land. The easement of right of way was held in the judgment of 1868 to exist for the benefit of the dominant tenement, the upper storey of the shops, and now it is claimed for the appellants that the right of way should by some means unknown to law be considered to exist for the benefit of a different dominant tenement, namely the mosque. We think that the case has not been made out for the appellants on this point.
8. A further argument was made for the appellants that the respondent plaintiff was beund by estoppel. Now estoppel under Section 115, Evidence Act, requires that the person estopped should by his declaration, act or omission intentionally cause or permit another person to believe a thing to be true and to act upon such belief. Learned Counsel sets out that the acts on which his estoppel was based were : (1) plaintiff allowed defendants to build a staircase without any right or reason; (2) to widen the staircase; (3) to erect certain domes or minarets; (4) to use the staircase since erection for entry to the mosque; (5) to abandon the staircase on the western side of the mosque. It does not appear to us that any estoppel can be based on any of these allegations. No case of estoppel was set up in the written statement and no issue was framed on the point. It is too late to set up a new case of this nature in second appeal and we consider that there are no findings of fact on which any estoppel could be based. The allegations in our opinion are not established by the findings of fact of the Court below. A further argument was made about limitation. On the finding of the Court below that the staircase was reconstructed some time in 1916 and the fact that the suit was brought on 17th June 1930 it is clear that the period of 20 years terminating within two years before the institution of the suit has not been completed in this case so far as the right of way to the mosque is concerned.
9. Another objection taken was in regard to the alleged admission of the plaintiff that the staircase had been made wider and the finding of the lower Appellate Court 'it is true that they made and widened it.' On this learned Counsel argued that at least as regards the addition made to the staircase on the property of the defendants the defendants had title. Now no claim was made in the written statement that there was any addition to the staircase by the defendants on their own property which gave them the right to that portion. On the contrary the written statement claimed that the staircase belonged to the defendants and not to the plaintiff at all and always had belonged to the defendants and their predecessors. It is too late for the defence to set up a new claim at this stage and a claim which would require evidence to be produced to show whether in fact there is any portion of the staircase which has beon built on the land of the defendants. The mere finding that the staircase has been widened does not show that any portion was built on the land of the defendants. The principle has been laid down in M.E. Moola Sona Ltd. V. Burjorji :
When a question of law 13 raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.
10. Now in the present case it cannot be said that the claim about the extension will come within this dictum as the facts are not admitted or proved beyond controversy and there is no finding whatever as to what the extent of such an alleged extension on the land of the defendants might be. A further argument was made in regard to the order of the learned District Judge dated 25th February 1935. The judgment of the learned District Judge was a month previous on 28th January 1935. His addition is as follows:
The omission in the final order of any reference to the domes is a clear oversight. Therefore correct this and add to the judgment that the respondents will remove the said domes within fifteen days. Failing that the appellant can have it done himself at their expense.
11. He claimed that this matter of the domes or small minarets had been overlooked by him and therefore he passed this order in regard to that part of the case. It is urged upon us that he had no jurisdiction to do so except on a review of judgment. The matter was a very small one. Some argument was made that the direction in regard to domes is not clear and learned Counsel has stated that he does not understand how many domes are affected. In the plaint relief No. 5 the plaintiff asked for the removal of the three domes on the eastern door in the wall of the staircase. These three domes are shown in an elevation plan on the record as three domes. The decree of the trial Court sets out this relief of the plaint and states that it was not granted. The appellate decree states that the relief of the domes is granted. It is perfectly clear that taking the two decrees together the domes mentioned in the decree of the Appellate Court are the three domes mentioned in relief No. 5 of the plaint. 'We do not think that it is necessary for us to interfere in this matter as the order passed appears to be in accordance with the finding of the Court below. Admittedly the domes were placed by the defendants on the staircase which belongs to the plaintiff and the plaintiff has a perfect right to ask that these domes should be removed. We dismiss this second appeal with costs.