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Mahammad Beari and ors. Vs. Badava Beari and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1931Mad128; (1931)61MLJ58
AppellantMahammad Beari and ors.
RespondentBadava Beari and anr.
Cases ReferredJesang v. Whittle and Mancharsha Sorabji
Excerpt:
.....of way enjoyed for agricultural purposes might be used for the purpose of a factory-provided no additional burden was thereby imposed on the servient heritage. 812, milner's safe co. 11. it seems to me that in the case before me i might as well follow not only the principle laid down by the learned judges in that case, but also the particular procedure adopted by them, though they did so with reference to the circumstances of that case. in milner's safe company ltd. i am satisfied that the true principle is the principle laid down in these cases, that you cannot, from evidence of user of a privilege connected with the enjoyment of property in its original slate, infer a right to use it, into whatsoever forms or for whatever purposes that property may be changed, that is to say, if a..........from the defendants.6. the substantial question however for decision between the parties is, what rights defendants have at present with reference to the use of passage d with reference to the building f? the learned advocate for the appellant contended that the learned subordinate judge was in error in applying section 43, easements act, which contemplated a case where permanent structural changes have been brought about in the dominant heritage, and the result was that the burden on the servient heritage was accordingly materially increased in such a way that the same could not be reduced by the servient owner without interfering with the lawful enjoyment of the easement. in such a case the section declares that the easement acquired in respect of the dominant heritage should be.....
Judgment:

Anantakrishna Ayyar, J.

1. The defendants are the appellants in this second appeal. The plaintiff and the defendants are neighbours, the plaintiff being the owner of Survey No.1565 and defendant 3 being the owner of Survey No. 1566. It is said that defendants 1 and 2 claim under defendant 3. The plaintiff's suit was for a declaration that the wall marked II in the plan, between the plaintiff's and defendant's properties, was the plaintiff's own wall, that the defendants had no right of passage through the pathway marked D and the defendants should close the doorway marked H (1) and for a mandatory injunction to give effect to the above declaration. The defendants pleaded that wall H was their wall, that it was built on a portion of Survey No. 1566 which belonged to them, and that plaintiff was not entitled to any relief in respect of wall H. With reference to the passage D they claimed a right of way through the same to the buildings F and J. There was also some dispute with reference to a small building T just to the west of F. The trial Court came to the conclusion that the plaintiff was not entitled to wall II since it was constructed wholly on defendant's land, Survey No. 1566. It also found that the defendants were not entitled to any right in respect of building J. It gave a decree in favour of the plaintiff as follows:

That the plaintiff is the absolute owner of Survey No. 1565 subject to a right of way in favour of defendants only for their men and goods along the passage D and for the beneficial enjoyment of their building;

and it restrained the defendants by an injunction from using the passage D in excess of such right of way. The learned advocate for the respondent-plaintiff suggested that the word ''building' used in the decree is with reference to the building F. Both sides were dissatisfied with the decision of the trial Court with the result that the plaintiff preferred an appeal No. 16 of 1925, while the defendants filed a memorandum of objections in the appeal, each party claiming the whole of what each wanted in the trial Court.

2. The learned Subordinate Judge noted six points for determination in appeal. He agreed with the trial Court with reference to the ownership of wall H and that the defendants were not entitled to any easement in respect of building J. As regards the small building T, agreeing with the trial Court, he held that it was not a nuisance and that the plaintiff was not entitled to any relief in respect of the same. As regards the passage D, the appellate Court found that from about 1899 or 1900 the occupant of F under the defendants, one Ali Beari, was using the passage D and the doorway H (1) in connexion with F and that, after Ali Beari vacated the premises, for a few years prior to the plaint the same was used by the defendants for the passage of men with or without goods. The learned Subordinate Judge found that during Ali Beari's time the same was being utilized for use in connexion with F as a residential building. The learned Subordinate Judge also found that the user for just a few years prior to the plaint mentioned by him in para. 18 of his judgment materially increased the burden of the servient heritage, and being of opinion that the same could not be reduced by the servient owner without interfering with the lawful enjoyment of the easement, he came to the conclusion that Section 43, Easements Act, applied and that the defendant's rights of easement, which existed, became extinguished by the permanent change of the dwelling house F into a warehouse.

3. The learned Subordinate Judge accordingly modified the decree passed by the first Court in that respect. The modification appears in his decree which is printed at p. 7 of the pleadings book. It is as follows:

That the defendants and their men be, and hereby are, permanently restrained from using the passage D and the doorway II (1) shown in the said plan, and they are likewise directed to close the said doorway.

4. The subsequent clause of the appellate decree gives the plaintiff the right to have the doorway closed through Court in case the defendants fail to do so. The plaintiff's suit in other respects was dismissed. This second appeal has been preferred by the defendants.

5. The only questions that have to be considered are: (1) whether the learned Subordinate Judge was right in his view that the right of easement which he found to have been acquired with reference to F as a residential building has been extinguished in the circumstances; and (2) whether he was right in directing the defendants to close the doorway H (1). I will take up the second point first. The doorway H (1) has admittedly been existing in the wall H which belongs to the defendants. The plaintiff has no right to ask the defendants to close H (1) any more than he has got a right to ask them to close any other portion of the defendant's wall or building. If the defendants are found not to have acquired any right of easement with reference to H (1) it would be open to the plaintiff to do what he likes in his own premises which would have the effect of rendering H (1) useless for the defendants. But the lower appellate Court's direction to the defendants to close H (1) is not warranted by law. The decree will be modified in that respect, and the said direction will be deleted from the decree, along with the consequential direction enabling plaintiff to recover cost of the same from the defendants.

6. The substantial question however for decision between the parties is, What rights defendants have at present with reference to the use of passage D with reference to the building F? The learned advocate for the appellant contended that the learned Subordinate Judge was in error in applying Section 43, Easements Act, which contemplated a case where permanent structural changes have been brought about in the dominant heritage, and the result was that the burden on the servient heritage was accordingly materially increased in such a way that the same could not be reduced by the servient owner without interfering with the lawful enjoyment of the easement. In such a case the section declares that the easement acquired in respect of the dominant heritage should be deemed to have been extinguished. He argued that in the present case there were no permanent structural changes effected with reference to F and that therefore the provision of law applicable to this case is Section 23 which enacts that the dominant owner may from time to time alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. He referred me to Jesang v. Whittle [1899] 23 Bom 595, and Mancharsha Sorabji v. Virji Vallabhdas. In Jesang v. Whittle [1899] 23 Bom 595 it was held that the right of way enjoyed for agricultural purposes might be used for the purpose of a factory-provided no additional burden was thereby imposed on the servient heritage. A similar view was taken in Mancharsha Sorabji v. Virji Vallabhdas : AIR1926Bom537 .

7. On behalf of the respondent his learned advocate referred me to several English decisions in support of his contention, that the same principle would apply both where there were permanent structural changes in respect of the dominant heritage and also where there was substantial increase of burden with reference to the user in respect of the right claimed. The English cases reported in Whimbledon and Putney Commons Conservators v. Dixon [1876] 1 Ch.D. 362, Bradburn v. Morris and Morris v. Bradbum [1876] 3 Ch.D. 812, Milner's Safe Co. Ltd. v. Great Northern and City Railway [1907] 1 Ch. 208, and Taffavale Railway v. Gorden Canning [1909] 2 Ch. 48, were quoted by the learned advocate for the respondent. He also cited Desai Bhaoorai v. Desai Chunilal [1900] 24 Bom. 188, as supporting his suggestion. In considering the question whether any particular user is materially more burdensome than the original user, the learned advocate mentioned to me the cases reported in Jama Prasad v. Gopinath [1913] 19 I.C. 984, and Gajadhar v. Kishore Lal [1926] 97 I.C. 169, both of the Allahabad High Court, where particular users were held to constitute increased burden on the servient tenement in respect of the users concerned. Having carefully considered the cases cited by the learned advocates on both sides I think that the question for decision is clear. It is not, as I understand it, the case of the parties that there was any structural change in respect of F. At any rate, I have not been shown any finding in the judgment of either of the lower Courts which would support that view. As I understand their judgments, what they have found is that while Ali Beari was in possession of F it was being used as a residential building, and in connexion with the said user the said Ali Beari was using the passage D, and also H (1) which seems to have been opened about 1900. It is also clear from the observations of the learned Subordinate Judge that just a few years prior to the present suits the defendants had been using the passage D and the doorway H (1), not simply for residential purposes connected with F but for purposes connected with the user of F as a warehouse. The question is whether the defendants are entitled to do so. That will depend on the combined effect of Section 23 relied on by the learned advocate for the appellant and Section 28, which section also was relied on by the learned advocate for the respondent. The case, In my view, is not one that comes under Section 43. The question therefore for consideration by the lower appellate Court is whether the user by the defendants of the passage in question does or does not impose any additional burden upon the servient heritage. This is essentially a question of fact. The lower appellate Court will have to consider this aspect of the case and record a finding on this 'question.

8. As remarked in Taff Vale Railway v. Gorden Canning at p. 55:

The question which arises is a question of fact, namely whether what the defendants are claiming the right to do is such as substantially to increase the burden of the easement.

9. That in fact is the decision in Jesant v. Whittle. As laid down by the learned Judges, Parsons and Ranade, JJ., at p. 597:

The test to be applied is to see whether an; additional burden has been or will be impose on the servient heritage of the plaintiff by the use made or sought to be made of the way by the defendant.

10. They further observe:

There has been no inquiry made upon this point, and an incidental remark only about it is made in the judgment of the lower Court. We ask the Judge of the lower appellate Court to find on the issue embodied in these words after taking evidence, and to certify to this Court his finding thereon.

11. It seems to me that in the case before me I might as well follow not only the principle laid down by the learned Judges in that case, but also the particular procedure adopted by them, though they did so with reference to the circumstances of that case. In Milner's Safe Company Ltd. v. Great Northern and City Railway, at p. 226, Kekewich, J., quoted a passage from the judgment of James, L. J., in Wimbledon and Putney Commons Conservators v. Dixon, at p. 368, which is as follows:

I am satisfied that the true principle is the principle laid down in these cases, that you cannot, from evidence of user of a privilege connected with the enjoyment of property in its original slate, infer a right to use it, into whatsoever forms or for whatever purposes that property may be changed, that is to say, if a right of way to a field be proved by evidence of user, however general, for whatever purpose, qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purposes of the manufactory or town so built.

12. In some of the English cases quoted by the learned advocate for the defendant, the learned Judges discuss the effect of what, in our Act, is provided for by Sections 23 and 43 together. But the cases decided by the Bombay High Court in Jesang v. Whittle and Manchersha Sorabji v. Virji Vallabhdas were cases arising under Section 23.

13. I do not think it necessary to discuss the other decision cited by the learned advocates on both sides, because I think the law on the point is not open to any serious doubt. I therefore think that the learned Subordinate Judge was in error in thinking that the easement acquired in connexion with F over the passage D and H (1) for use as residential purposes has been extinguished by the particular user referred to by him for just a few years prior to the plaint. The question to be considered is whether the new user imposes any additional burden on the servient heritage.

14. Before disposing of this appeal I call upon the lower appellate Court to record a finding on the question:

Whether the user had by the defendants which is complained of by the plaintiff imposes any additional burden on the servient heritage.

15. Fresh evidence on this point should be allowed to be adduced by both sides. Eight weeks for the finding and ten days for objections.

16. [In compliance with the order contained in the above judgment, the Subordinate Judge of South Kanara submitted the following]

17. Finding.-I therefore decide the point in the affirmative.

18. This second appeal coming on for final hearing after the receipt of the above finding upon the issue referred by this Court for trial the Court delivered the following judgment.

19. In this case I called for a finding on the question:

Whether the user had by the defendants and which is complained of by the plaintiff imposes any additional burden on the servient heritage.

20. I gave liberty to the parties to adduce additional evidence on this point. The present learned Subordinate Judge of South Kanara has returned a finding in the following terms:

The plaintiff and his witness now examined say that the defendants use bullock carts as well as hand carts for carrying goods through the passage D. Certainly if F is used as a godown for storing merchandise instead of its being used for residential purposes, it will throw additional burden on the servient tenement of the plaintiff. I therefore decide the point in the affirmative.

21. The defendants have preferred a memorandum of objections, and their learned advocate drew my attention to the case in Jarulal Mullick v. Gopal Chandra Mukerji [1886] 13 Cal. 136 a decision of the Privy Council. That was not a case decided under the Easements Act, because the Easements Act is not in force in Calcutta. Their Lordships made the following observation at p. 142 'A servitude gained for one purpose cannot lawfully be used for another' and then they proceeded to point out that the servient owner could not complain because the dominant owner who had acquired a right of way to cleanse his privy was using the way for the very same purpose though more frequently than before. They held that the servient owner was not entitled to object to what the dominant owner was doing in that case. My attention was also drawn to the cases reported in Wimbledon and Putney Commons Conservators v. Dixon, Taff Vale Railway v. Gordon Canning, Jesang v. Whittle and Mancharsha Sorabji v. Virji Vallabhdas. The learned advocate for the appellants also suggested. that the test which was laid down in. the earlier English case3 namely that the purpose for which the easement was acquired should not be different is probably not the law in England at present But whatever it is I have to decide this case in the light of the provisions contained in Section 23, Easements Act. Under that section:

a dominant owner may from time to time alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servient heritage.

22. In this case it was argued by the learned advocate for the appellants that, as the defendants would be entitled to a right of way through the passage D at all times of the day even if their property was used only for residential purposes there is really no addition of any burden by their property being used for trade purposes because the learned advocate argued the passage will have to be kept open practically at all times and there is no specific evidence as to how any additional burden is imposed upon the servient tenement. The learned Subordinate Judge has found as a matter of fact that the defendants now use bullock: carts as well as hand carts for carrying, goods through the passage D. That surely is a circumstance which would add to the burden and if I understood the argument of the learned advocate properly he did not contest that so far as the use of the bullock carts and hand carts carrying goods through the passage D is concerned the defendants are by their present user adding a further burden on the servient tenement and they would not be justified in doing so. I think that the learned Subordinate Judge was [entitled on the materials before him to come to the conclusions with reference] to the use of the passage D by the defendants for trade purposes that its use; even for purposes other than for the passage of bullock carts and handcarts but for trade purposes and not for residential purposes would add to the burden on the servient tenement. He has discussed the evidence and come to 'that conclusion that

certainly if F is used as a godown for storing merchandise instead of its being used for residential purposes it will throw additional burden on the servient tenement of the plaintiff.

23. The cases I have mentioned in my prior order calling for findings decide that the question whether additional burden is imposed or not is essentially ordinarily one of fact and I think that the learned Subordinate Judge had materials before him on which he was entitled to come to the conclusion which he arrived at, namely that the defendants were by their user throwing additional burden on the servient tenement of the plaintiff.

24. The result is, as I have already mentioned in my prior order, the defendants would be entitled to keep open their doorway H(1) and all directions given in the decree of the lower appellate Court relating to H (1) would be deleted from that decree. The decree which is to be passed in favour of the plaintiff would be that the defendants and their men be and hereby are permanently restrained from using the passage D in connexion with their premises except in connexion with use of their premises as a residential house or in respect of any other use of the same if the result of the said user would be that an additional burden would be imposed on the servient tenement. As regards costs I direct that the parties do bear their own costs in all the Courts in the circumstances each having succeeded in part and failed in part.


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