G.K. Misra, C.J.
1. Plaintiff's case may be stated in short. Plaintiff is the owner of plot No. 1162. Defendants 1 and 2 are the owners of plot No. 1170/1623. Both the plots adjoin. Plot No. 1172 is Anabadi land and is undisputedly used as a lane. Plaintiff has his latrine in plot No. 1162. Defendants have their latrine in plot No. 1170/1623. Plaintiff's latrine is being cleaned by municipal sweepers since time immemorial. They come from Ranihat-Manglabag road through plot No. 1172 and enter plot No. 1162 through plot No. 1170/1623. Plaintiff claims right of way on the disputed passage over plot No. 1170/1623 by way of easement. The disputed passage is claimed to have been used peaceably and openly as of right without interruption for much more than twenty years. The suit was filed in 1957.
Defendants 1 and 2 who contested the suit denied the existence of the right of way.
The trial court dismissed the suit holding that plaintiff has acquired no right of way by easement. An appeal by the plaintiff against the trial court decree was dismissed. In second appeal No. 232 of 1964 filed by the plaintiff the case was remanded. The lower appellate court had found that the compromise petition dated 27-9-52 (Ext. 12) was genuine. In remanding the case the High Court directed that the lower appellate court should go through the entire evidence and record a finding wheteher plaintiff had acquired a right of way by easement. After remand, the lower appellate court held that Ext. 12 is genuine and had been acted upon and as it merely recognised a pre-existing right it required no registration. On thorough discussion of the materials on record it came to the conclusion that plaintiff had established acquisition of right of way by easement. The suit was accordingly decreed. Against the appellate decree defendants 1 and 2 filed Second Appeal No. 96 of 1969. Our learned brother B.C. Das, J. agreed with the lower appellate court that plaintiff had exercised the right of way for morethan the prescriptive period of twenty years openly and peaceably as of right. He, however, dismissed the suit holding that user of the disputed passage by the municipal sweepers cannot create a right of way in favour of the plaintiff. It is on this ground alone that he allowed the second appeal and dismissed the suit. On his granting leave, the A.H.O. has been filed by the plaintiff. This is how the matter has come before us.
Before the learned Single Judge the findings of fact recorded by the lower appellate court were attacked. The learned Single Judge on careful examination found no merit in those contentions. Before us also Mr. Rao made a faint attempt in saying that the lower appellate court and the learned Single Judge did not examine the question whether the user of the way for more than twenty years was peaceably or not. On perusing the judgments we are of opinion that the contention is merely an attempt to get over the findings of fact which are binding on this Court in Second Appeal under Section 100, C.P.C.
2. The sole question for consideration is whether plaintiff's acquisition of the right of way by easement over the disputed passage is to be negatived on the ground that the user of the way is by the sweepers of the municipality and not by the plaintiff himself.
3. There is no dispute that theright of way is claimed only for the limited purpose of the municipal sweepers coming by the disputed passage to clean plaintiff's latrine. Before we examine the relevant authorities it would be useful to analyse the question on first principles.
4. Sections 221. 224, 230 and 233 of the Orissa Municipal Act, 1950 show that the municipality is under a statutory obligation to arrange for the removal of rubbish and filth over private premises. The owner has also an obligation to keep his latrine clean and it is not permissible for him to accumulate the filth in his privy. To discharge the obligation, latrine tax is levied by the municipality under Section 134. It would be apparent from these provisions that the obligation for cleaning the latrine is cast both on the owner as well as the municipality. Accordingly, when the plants for construction of buildings are approved by the municipality, it must see that there is provision for latrine and there is a passage for access to the latrine by municipal scavengers. Even if the owner provides a latrine the municipality is under no obligation to clean the same unless access to the latrine is provided by theowner. It is, therefore, the paramountduty of the owner to provide access tohis latrine unless the access is otherwiseavailable through public roads or lanesover which the municipality would havethe right of user without leave or permission.
5. By way of illustrative example, let us take a case where to a privy in a newly constructed house within the municipal area there is no access except through the land of another on which no right of way by easement has been acquired. In such a case the municipality cannot discharge its obligation to cleanse the latrine without having the necessary access. Suppose, the municipality at the behest of the owner of the privy directs its sweepers to pass openly on the land of adjacent owner without any obstruction from the latter and in this process the prescriptive period of twenty years elapses. Can it be said that the owner of the privy has not acquired the right of way by easement? When the sweepers of the municipality use the passage at the behest of tha owner of the privy, the right is clearly exercised by the owner of the privy though it is through the normal agency of municipal sweepers who alone cleanse the privy.
The legal position is not in any way altered if factually the sweepers cleanse the latrine without express behest from the owner of the privy. Owner's assertion of the right of way is to be implied from the factum of user by the sweepers without obstruction for the benefit of the owner.
6. (1885-86) 13 Ind App 77(PC) (Judoo Lall v. Gopaul Chunder) clearly brings out the aforesaid principle. The facts of that case may be stated in short. Plaintiff's claim to use the passage in dispute for more than twenty years before 1876 was accepted as a fact. In 1876 the Calcutta Municipal Act was passed. The suit was filed in 1881. From 1876 till 1881 the privy was cleansed through the sweepers employed by the municipality and not by plaintiff's sweepers as was being done before 1876. It was contended that the use of the disputed passage by the sweepers of the municipality cannot enure to the benefit of the plaintiffs for acquisition of the right of way by easement. This contention was negatived by their Lordships who made the following observation:
'Mr. Doyne has argued for the defendant that the change of system thus brought about operates as a breach of the user by the plaintiffs, and so destroys their title by prescription. But their Lord-ships cannot see that the change of system works any discontinuance of the prior user. In point of frequency the user is much more active than before. The purpose is still the purpose of cleansing the privy. The mode of access from Jorabagan to the privy is not altered, except that the scavengers, instead of walking in the drain, walk on the surface of the earth that fills it. And it cannot make any difference that the plaintiffs no longer use the passage to admit their own scavengers, but use it to admit those of the municipality, to whom they are bound to afford free access.'
The aforesaid passage clearly brings out the principle that user of the disputed way by the sweepers of the municipality amounts to user of the owner of the privy. The sweepers of the municipality use the passage for the beneficial enjoyment of the owner's privy. If this view had not been taken, then plaintiffs' suit before their Lordships would have been dismissed on the ground that there would have been a breach of the user and acquisition of title by prescription would have been destroyed.
As would appear from Section 26 of the Indian Limitation Act. 1908, each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Thus, though in the case reported in 13 Ind App 77 (PC) prior to 1876 plaintiffs had acquired the prescriptive right, non-user of that right from 1876 to 1881 would have destroyed the right. The user by the sweepers of the municipality was construed to be the user by the plaintiffs themselves and that is why the period from 1876 to 1881 was considered to enure to the benefit of the plaintiffs.
7. The same view has been taken in AIR 1926 Bom 282 (Ramchandra Vasudeo Vijapure v. Anant Laxman). A Division Bench of that Court observed thus :
'Existence of a privy necessitates some agency for its being cleaned. That agency in this country generally is employed from outside. We do not think the fact that the sweeper is a servant of the Municipality would prevent the plaintiffs acquiring a right of way over the defendant's land provided it was used by the sweeper for the purpose connected with the proper enjoyment of the plaintiffs premises. It seems to us from the illustration (b) to Section 21 (Easements Act) that plaintiffs certainly would be entitled to establish an easement in their favour, provided they could prove that the pas-sage belonging to the defendants hadbeen used as of right by the Municipal sweeper for the necessary period.'
8. Reliance has been placed by Mr. Rao on AIR 1929 Cal 350 (Raman Chandra Das v. Bhola Nath Hati) and AIR 1939 Rang 34 (Murugappa Chettyar v. Firm K.S.A.K. Chettyar) in support of the proposition that the user of the way by the sweepers of the municipality for cleansing the latrine of the plaintiff cannot enure to the benefit of the plaintiff.
The Calcutta case does not analyse the reasons. The entire discussion in the case is to be found in the following passage:
'The learned Judge says that sweepers come to clean the drain and therefore their right of passage could not be obstructed. In the first place, it is difficult to say that the right to allow sweepers to pass is a right of easement which attaches itself to a tenement and in the second place according to the evidence and the finding of the Munsif it appears that sweepers passed since when the privy was erected by the plaintiff in 1329.'
As there is no discussion in this case it cannot be treated as an authority for the proposition it lays down contrary to what we have said.
9. AIR 1939 Rang 34 is a direct decision in support of the contrary view. 13 Ind App 77 (PC) and AIR 1926 Bom 282 were noticed in this case. The Bombay case was distinguished as being obiter. We do not subscribe to such a view. In the Bombay case the appeal was dismissed on several grounds. That does not mean that the expression of view of their Lordships on the point in issue is obiter and is to be ignored merely because the appeal was dismissed also on other ground.
Moreover, certain observations made in that case do not appear to be correct in law. Their Lordships distinguished (1885-86) 13 Ind App 77 (PC) by saying that before 1876 the right of easement had already been acquired when the plaintiffs were using their own sweepers. The significant feature was, however, missed. Their Lordships of the Privy Council are not expected to waste words when they analysed the position and observed that the period from 1876 to 1881 would enure to the benefit of the plaintiffs even though the municipal scavengers were cleansing the privy and that otherwise the right acquired by the plaintiffs would be destroyed. We find no support in the Privy Council decision for the following observation in the Rangoon case:
'..... therefore their Lordshipsheld that the easement already acquired was not lost by reason of a supposed discontinuance of user by the substitution of the sweepers hired by the plaintiffs by municipal scavengers.'
In fact, the Privy Council did not take such a view. It held that there was no difference in the nature of right exercised by the plaintiffs before and after 1876. The fact that prior to 1876 plaintiffs got the privy cleansed through their hired sweepers and subsequent thereto the municipal scavengers cleansed it made no difference to the nature of animus exercised by the plaintiffs. We are unable to subscribe to the view expressed in the Rangoon case. With respect we say that it was not correctly decided.
10. On the aforesaid analysis, we are clearly of opinion that plaintiff acquired a right of way by easement. The learned Single Judge acted contrary to law in dismissing the plaintiff's suit after coming to the conclusion that the disputed passage was used for cleansing the plaintiff's privy openly and peaceably as of right for more than the prescriptive period.
11. In the result, the judgment of the learned Single Judge is set aside and the plaintiff's suit is decreed. The appeal is allowed with casts throughout.
12. I agree.