1. The plaintiff who has lost in both the courts below in the suit filed by him for a declaration that a strip of land should be kept vacant as a common lane for repairs and for consequential relief of mandatory injunction for the removal of a staircase which had been built thereon and of a trough, some iron hooks, etc, is the appellant in this second appeal. There was also a prayer for a declaration of the plaintiff's ownership of a wall shown as A B C in the plaint plan. So far as the ownership of the wall is concerned, there was no serious contest about it and the courts below have upheld the plaintiff's claim in respect of the wall. This second appeal relates only to the other reliefs claimed by the plaintiff with reference to rights over the site A B C, C1, B1, A1 in the plaint plan.
(2) A perusal of the judgment of the courts below shows that the plaintiff has put forward a case for reliefs to a larger extent than the easements rights he may be legally entitled to and appears to have asserted more or less a claim of ownership in the site in question. This has been negatived by the courts below. The structures in question have been found to be existing for over 15 to 20 years. A wall B B1 was contended to be an encroachment and certain iron hooks and wooden releases were urged to be hindrances to the enjoyment of the site as a common lane. Relief for the removal of all these things was refused by the courts below and learned counsel for the appellant has not been able to make out a case for differing from the conclusions of the courts below in regard to these.
(3) The plaintiff had purchased the property shown as A C D E F H in the plan under Ex. A-1 on
15-9-1936. By Ex. A-2 dated 1-10-1936 he sold the eastern portion of this property demarcated as A C F H to Ponnammal, predecessor in title of the defendants. A reference to Exs. A-1 and A-2 shows that there is a provision for retaining an extent of property about 1 1/2 ft. wide on the southern side of A. C. FH of the length of 16 ft. north to south, that is, the strip marked A B C C1, B1, A1 in the plaint plan as a vacant site for purposes of carrying out repairs to the property south and west of the property conveyed under Ex. A-2. Subsequent to the sale under Ex. A-2, whereby the provision was shown for retaining this strip as a vacant site for carrying out repairs to the adjoining property, there was a suit O.S. 711 of 1937 on the file of the District Munsif, Tiruchirapalli between plaintiff and Ponnammal, the vendee under Ex. A-2. That suit was compromised and a perusal of the compromise decree shows that the rights provided for access over the site A A1 C1 C for repairs had become extinguished with reference to the suit C D E F of which the plaintiff was then owner. In view of the walls put up under the terms of the compromise, the right had become impossible of enjoyment. Subsequently the plaintiff became the purchaser of the property south of A. C. F. H, that is the property ALKJ under the sale deed Ex. A3 dated 21-5-1956. The plaintiff claims now that even though he might have lost his right for use of the strip of land A C C1 A1 with reference to the property CDEF, he could as owner of ALKJ claim to go over the said right. It is in pursuance of this to go over the strip of land for repairs to the southern property, the right has been asserted in these proceedings and a mandatory injunction claimed for removal of the structures and fixtures, which would be an obstruction to the free enjoyment of the said right.
(4) No doubt, the plaintiff may not be precluded by virtue of the decree Ex. B-4 only to assert rights appertaining to the property ALKJ. But if all the while and through the years the defendants had been putting up permanent constructions on the strip of land A.C.C1.A.1 and incurring expenditure in the constructions and the constructions are such that would make the enjoyment of any right over the strip as appertaining to ALKJ impossible, and if all the while the owner of ALKJ had stood by and acquiesced in the defendants or predecessors in title incurring expenditure, then it would be a case of an estoppel arising precluding the owner of ALKJ asserting his rights to their detriment. For the plaintiff reliance is placed upon Ex. A-22, a receipt which Ponnammal, the predecessor in title of the defendants, had executed in favour of Mohamed Baksha Sahib, the then owner of the southern property ALKJ. Under this, while there is a provision for Ponnammal seeking support for some constructions in the wall belonging to the southern owner, Ponnammal acknowledges that without any objection she would give access to the southern owner for repairs. This document comes in after the decree in O.S. 711 of 1937 above referred to between the present plaintiff and Ponnammal. This makes it clear that the right of access over the strip of land to the extent possible as far as the southern property was concerned was preserved and kept alive. But the evidence shows that the Ponnammal had several years before the plaintiff became the purchaser of the southern property put up the impugned constructions staircase, trough etc.
(5) Now the site was not shown retained as a common lane even in Ex. A-22. Only access for repairs had been provided. But subsequently structures appear to have been erected thereon. There can be no doubt that, as found by the courts below, the ownership of the strip of land was itself intended to be conveyed to Ponnammal and had been conveyed to her. What was retained and provided for was easement right of access over the strip of land for the purpose of repairs to the adjoining properties. So far as the western property retained by the plaintiff is concerned, this right had been lost and had got extinguished under the compromise in the earlier suit. The only question is whether and if so to what extent there has been extinguishment of the easement rights over this strip of land in relation to the southern property of which the plaintiff became the owner in 1956.
(6) S. 38 of the Easements Act provides for extinguishment of easement right by release, the dominant owner releasing it, expressly or impliedly, to the servient owner. Such release can be made only in the circumstances and to the extent to which the dominant owner can alienate the dominant heritage. An easement may be released as to part only of the servient heritage. It is clear therefore that with reference to the southern property of which the plaintiff was not the owner at the time of the compromise decree, there can be no extinguishment by reason of the decree. He was not then the dominant owner of the southern property. The explanation to S. 38 provides how an implied release is effected. It is released either where the dominant owner expressly authorises an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority or when any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future. The section provides that mere non-user of an easement is not an implied release within the meaning of this section. Extinction of easement by non-enjoyment is provided under S. 47 and a discontinuous easement like the present one would get extinguished when for an unbroken period of 20 years it had not been enjoyed as such.
(7) Now with reference to the property ALKJ neither of the provisions above referred to applies and extinguish the easement. Ex. A-22 while providing for the user of the site, preserves the right of access for the purpose of repairs. All the same there is another principle which can preclude the assertion of the right of easement and that is the principle of estoppel by conduct referred to at the outset. It is clear from the evidence on record that the right has never been exercised by the dominant owner all those years. Though no doubt mere non-user standing by itself will not amount to an implied release, an equitable release of easement right can be presumed in cases where the dominant owner by his omissions or acts causes a reasonable belief in the mind of the servient owner that he intends abandoning altogether the enjoyment of his easement and encourages the servient owner incurring expenses on that belief on permanent structures. This presumption gets strengthened if it is established that the non-user was the result of adverse acts of the servient owner which had been acquiesced in by the dominant owner. When a servient owner raises a permanent structure expending money, which interferes with or would interfere with the enjoyment of an easement, without protest or resistance on the part of the dominant owner, then one can presume, if the circumstances warrant it, that the dominant owner was a consenting party to the structures. In this case the finding is that the staircase, trough and pipes were in existence on the suit lane for over 15 years prior to suit. The easement rights are the subject of covenant and still, no steps had been taken by the plaintiff or by the southern owner for the removal of these constructions. The learned appellate Judge observes that the plaintiff has by his own conduct absolved the defendants' predecessor in title from keeping it as a common maramat lane and that he is estopped from claiming that right again.
(8) But the unfortunate thing with reference to the findings of the courts below is that for having access for repairs, it is not necessary that the lane should be kept as a common lane. It is the plaintiff's approach to the case as if the lane is a common lane that evidently has led to the courts treating the claim of the plaintiff as one of a right in property. The question for consideration is not whether the property could be still enjoyed as a common lane and whether a mandatory injunction should be issued at the behest of the plaintiff for maintaining it as a common lane, but whether the plaintiff, as the present owner of the southern property, can exercise any rights of easement for the purpose of repairs in respect of the southern property. As indicated in S. 38 itself, there can be release of an easement in part only of the servient heritage. If in spite of the constructions that have been put up, the plaintiff could still go over the limited space of west 11/2 ft. in width which had been provided for and carry out repairs to the southern property, I do not see what objection the defendants can raise to such a course. The suit has been filed within 20 years of Ex. A-22. Therefore, the easement right to the extent it has not been extinguished by acquiescence in constructions must be deemed to be alive. Of course, the plaintiff and his predecessor-in-title having stood by when portions of the strip of land were being built upon or fixtures were permanently put thereon cannot now object to the presence of these constructions and fixtures. If, in spite of these constructions and fixtures, repairs could be carried out to the southern property, it must be held that there has been no extinguishment of the easement to that limited extent. But the plaintiff cannot claim a right to go over the buildings which might have been put up on the property to carry on repairs to his southern property. The easement right reserved was only over the vacant site in question. If it had been built upon and the plaintiff is not entitled to a mandatory injunction for their removal the plaintiff cannot claim any right to go over the buildings for carrying on his repairs. Of course merely flooring the area will not be an obstruction. In this connection reference may be made to the decision of this court in Kamalammal v. Chakravarthi, 1964 2 MLJ 241, where it has been noticed that a house owner who may have an easement in the nature of a necessary easement to go to the other side of the wall on the land of his neighbour for repairs to his own wall on his neighbour's side cannot seek access through a staircase to the open terrace of his neighbour's house that he may effect repairs to his wall and the windows on that wall.
(9) On the materials before the court after taking time more than once counsel have not been able to come to an understanding as to the extent of access that would be available at present on the strip of land in question over which originally a right of access was reserved for repairs. There is also this fact that the wall GB had been built running north to south cutting the strip of land in the middle of the wall B B1. The courts below have on proper considerations refused mandatory injunction for the removal of the wall B B1. If that be so, I do not see how the plaintiff can claim to go further west of B B1 to effect repairs on the portion of the wall BC. The Commissioner also finds that the entire part on B1 A1 A B has been constructed. What that construction is, is not clear. If the constructions would make the enjoyment of the right of easement absolutely impossible then certainly he can have no relief whatsoever of access over the property for repairs. If despite the constructions there are accessible portions of the strip the court can grant him relief to that limited extent. In spite of the constructions it is stated for the plaintiff that it may be possible for him to limited extent to enjoy right of access for repairs. This is a matter that has to be ascertained afresh and appropriate orders passed. The right being only for purposes of repairs it can only be periodical and the right of access must be limited to the necessary period and for the specific purpose of repairs.
(10) I think that in the circumstances of this case the proper thing to do would be, while confirming the dismissal of the suit so far as the claim for mandatory injunction is concerned, to remit the matter back to the lower appellate court for ascertaining whether, and if so to what extent, the easement right has not been extinguished and could still be enjoyed. The lower appellate court may appoint a Commissioner for the said purpose, and if need be and the parties so desire, examine the Commissioner in court. If it is found that the right could still be enjoyed, the court will have to pass a decree declaring the right limiting the duration of the access. It may be required only for a day or two or three in a year, as the case may be, dependent on the extent of the repairs and during the hours when workmen need to go on the servient tenant to carry out the repairs. Suitable directions in regard to these may have to be given, the plaintiff by adequate advance notice fixing up the day and the hour in consultation with the defendant or defendants in as the case may be.
(11) In the result, while confirming the decree declaring the plaintiff's right to the wall A B C and dismissing the suit in respect of the claim for mandatory injunction, the rest of the decree dismissing the suit in its entirety is set aside and the matter remitted to the lower appellate court for disposal in the light of the observation contained herein. There will be no order as to costs in the second appeal. Leave refused.
(12) Order accordingly.