1. This is a second appeal by the original defendants against the judgment and decree of the learned District Judge of Panchmahals decreeing in appeal the plaintiffs' suit for a declaration that the Khadki land adjoining their house to the south is of their exclusive ownership, that the defendants have a limited right of way to go to their house through the Khadki, that they had no right to use the Khadki site as passage for their sweepers to carry night soil and for a permanent injunction to restrain the defendants from using the Khadki as way for their scavengers carrying night soil. The defendants contested the suit and contended that the plaintiffs were not the owners of the Khadki in question and that the Khadki was a public street and that in the alternative the defendants had a general right of passage or the right of way through the Khadki. The trial court found that the plaintiffs had failed to prove that the Khadki was of their exclusive ownership and therefore it held that the plaintiffs were not entitled to the declaration and injunction prayed for. It held that the suit Khadki was a part of the public street and that all the people irrespective of the owners of the houses situated inside the Khadki including the Bhangis had every right to pass through the Khadki without any objection. It therefore dismissed the plaintiffs' suit.
2. In first appeal, the learned District Judge held that the plaintiffs had proved their ownership of the Khadki land, that the defendants had failed to prove that they had a right to use the disputed land as the passage for their scavengers carrying night soil from their latrines. He therefore decreed the plaintiffs' suit. Against this judgment and decree the original defendants have now come in appeal.
3. The points for determination in this second appeal are : (1) Whether the plaintiffs have proved their title to the Khadki, and (2) Whether the defendants have the right to use the disputed Khadki as a passage for themselves and their scavengers carrying night soil from their latrines.
4. Admittedly, the defendants own houses in the Khadki. This is conceded by the learned counsel for both sides. On the first question I agree with the finding of the learned District Judge. To prove their title the plaintiffs relied on two documents, namely, Ex. 43, which is a sale certificate issued in favour of the father of the plaintiffs, who purchased the suit property at an auction by the Court, and Ex. 44, which is a Sanad issued by the Ruler of the Lunawada State in 1928. The sale certificate cannot prove title. So we have to refer only to the Sanad, Ex. 44. (His Lordship after referring to the Sanad proceeded). I therefore agree with the finding of the learned District Judge that the plaintiffs have succeeded in proving their ownership over the Khadki in question. But, it is clear from the Sanad on which the plaintiffs rely that there is a right of way for all the owners of the houses in the Khadki, because reference is made in the Sanad to the right of way of all the owners of the houses in the Khadki for going and coming. It is contended by the learned counsel for the respondents that the latrines in question were built by defendant No. 1 in 1953 that before that year there were no latrines, and that therefore the right of way referred to in the Sanad is a right of way of persons other than scavengers. The use by scavengers is no doubt an additional burden imposed over the survient tenement. It is conceded that a latrine was built for the first time in 1953 by defendant No. 1 and that before 1953, scavengers of defendant No. 1 were not using the Khadki. But, the right of way given in the Sanad is a right of persons to go to and return from the houses of the owners in the Khadki. The right is in no way restricted to persons of a particular type, although it may be that in those days, scavengers were not using the Khadki, because the houses in the Khadki had no latrines. But, there is no reason to restrict the right of way in any way, as in the case decided by their Lordships of the Privy Council in Jadulal Mullick v. Gopalchandra Mu-kerji, ILR 13 Cal 136. In that case their Lordships took into account that the Bengal Legislature had passed an Act for the more efficient Municipal Government of Calcutta and bye-laws were made to regulate the removal of refuse. It was provided that the servants of the Municipality were to cleanse daily the privies of every house, on account of which a night-soil fee was levied, and for that purpose every occupier of a house WHS to give free access to his privy. Their Lordships held that there should be no material aggravation of a servitude. They also affirmed the principles that a servitude gained for one purpose cannot lawfully be used for another. They observed that there was no agreement specifying times or occasions of access and that the servants of the plaintiffs came and went at their own discretion or at the discretion of their employers. They therefore held that there was nothing in the proved facts to indicate a limit to the user of the passage, except the limit that it must be a reasonable user. They therefore held that access should be given to the servants of the Municipality at reasonable and convenient times, and that by doing so the servitude is not aggravated. In the instant case also there is nothing in the Sanad to show that the right of passage was limited in any way. It is true that in those days there were no latrines and the passage was not used by scavengers. The latrines came to be constructed after 1953, and in view of the changed circumstances it should be held that the right of passage through the Khadki was also available to scavengers.
5. The learned counsel for the respondents, however, relies on Chintamani Hargovan v. Ratanji Bhimbhai, 22 Bom LR 1131: (AIR 1920 Bom 233), where it was observed that the right of way for municipal sweepers carrying night-soil is not generally incidental to a right of way, as such a person is not one of the normal class of servants of a household in this country. But that case was dealing with the easement by prescription. In fact, the disputed way was not used by the sweepers although there was a privy which stood elsewhere and which was approached by a different way altogether. That old privy was removed and a new one was built at a different place. The sweepers were therefore using a different way before the old privy was substituted by a new one. When the sweepers were using a different, way, the defendants cannot say that another route which was used by persons other than the sweepers should also be allowed to be used by the sweepers. In these circumstances, it was held that the right of prescription did not include the right of passage tor the sweepers, who were in tact using a different route. The Bombay case can, therefore, be distinguished from the present case, because in the present case there was no privy before 1953 and the privy came to be constructed for the first time by defendant No. 1 in 1953.
6. Reliance was also placed on Annapurna Dutta v. Santosh Kumar, ILR (1937) 2 Cal 727: (AIR 1937 Gal 661), where the Calcutta High Court adopted the view is 22 Bom LR 1131 : (AIR 1920 Bom 233), that it is not generally incidental to a right of way that a sweeper carrying night-soil should use it, for such a person is not one of the normal class of servants of a household in this country. Even in the Calcutta case, it was observed :
'No evidence has been adduced to show that the strip was ever used as a passage for methars, and I don't think that the defendant can use it for that purpose, unless jt were absolutely necessary for him to do so, and for which there is no proof in the present case.'
in the instant case, the fact that the right of way in the Sanad is mentioned as belonging to all the owners of all the houses in the Khadki would go to show that the origin of the easement was by way of necessity. The whole of the Khadki must have belonged to one person at one time. The plaintiff in his evidence has stated that formerly the Khadki belonged to one man. In the Calcutta case, a reference has also been made to the case of Maneldal Harilal v. Maneklal Gordhan ILR 57 Bom 186: (AIR 1932 Bom 574), where it is held that when the grant of a right of way is in general terms the grantee is not confined to the user which existed at the tune of the grant but may use the way for all purposes, that the grantee is therefore entitled to use the way for scavengers to cleanse his new privy erected on his land subsequent to the grant and that such a right may also be claimed as an easement of necessity. The principles of this case would apply to the instant case, and in particular the following observations :
'Where there is an express grant of a private right of way to a particular place to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for the purpose for which the access would be required at the time of the grant. See Finch v. Great Western Rly. cP., (1879) 5 Ex D. 254 and Purshottam v. Kasturbhai. 32 Bom LR 1001 at p. 1004. I may also in this connection refer to Goddard's Law of Easements, 8th Edition, page 402, where it is stated:
'If a right of way be granted for a particular purpose, the purpose is to be regarded in construing the grant, in order to ascertain the nature and extent of the easement, and the grantee may be entitled to vary his mode of enjoying the easement, and from time to time to avail himself of modern inventions, if, by so doing, he can more fully exercise and enjoy the1 object Or carry out the purpose for which the easement was granted'.
This seems to be consistent with Section 21 of the Indian Easements Act.
'I think that the right of way which was granted by the award was a general right of way, and cannot be fettered by implied restrictions, and I agree with the view of the lower Court that it included the right of way for scavengers to cleanse the new privy in the house of the defendant'.
7. It is next contended by the learned counsel for the respondents that defendant No. 1 could have constructed a latrine on the north of his house. The learned District Judge has referred to this point in para 16 of his judgment. He observed that defendant No. 1 could have constructed his latrine in such a manner that it would abut the public road and the scavengers could have direct access without going through the suit Khadki. He refers to the order (Ex. 45) of the appellate authority of the State of Lunawada. It is doubtful whether this document can be referred to. In any case, it does not show that the Municipality was willing to grant a permission to construct a latrine on the north, In fact, on the north side there were a public street and a well. The question of bona fides of defendant No. 1 is not in issue and cannot be in issue. Similarly, the question whether he could have constructed a latrine on the north cannot be in issue. The only question is whether the admitted right of easement is a general right of easement and whether it includes the rights of scavengers going to defendants house to use the passage. For the reasons already given, I hold that the right of way mentioned In the Sanad is a general right of way and unrestricted in any way.
8. The plaintiffs are therefore not entitled to the injunction sought for by them although they are entitled to the declaration that they are the owners of the Khadki. I therefore order that the plaintiffs should be given only a declaration that they are the owners of the Khadki, and the rest of the plaintiffs' suit is dismissed. In view of the facts and circumstances of this litigation, there will be no order as to costs throughout.