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(Yalavarthi) Ramakistnayya Vs. (Yalavarthi) Rattayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad238
Appellant(Yalavarthi) Ramakistnayya
Respondent(Yalavarthi) Rattayya
Cases Referred and Muthu Goundan v. Anantha Goundan
Excerpt:
- - 2. the case has been taken under section 15 of the easements act according to which an easement in order to be established by suit must be enjoyed for 20 years, the period terminating not more than two years before the institution of the suit. both the lower courts, while finding that the condition as to 20 years is satisfied, find also that the defendant lost his right to the easement because he had ceased to avail himself of it more than two years before suit. explanation 2 clearly relates not to the period after which the easement has ceased to be enjoyed but to any interval of non-user within the twenty years of enjoyment......does not amount to cessation or abandonment within the meaning of the clause relating to the two years' period. i confess that i am unable to see anything in the section itself which would justify such a view. explanation 2 clearly relates not to the period after which the easement has ceased to be enjoyed but to any interval of non-user within the twenty years of enjoyment. it was to a circumstance of this kind that the case of ratanlal bholaram v. ghulamhusen abdulali a. 1922 bom. 3 related and for authority for that position that mere cessation of user not less than two years before suit is enough to extinguish the claim to the easement. i may refer to muhammad maroof v. sultan ahmed [1914] 12 a. l. j. 415 which has been approved by this court in rangappa naicker v. appala raja.....
Judgment:

Curgenven, J.

1. The plaintiff sued for a permanent injunction to prevent the defendant from putting up a roof upon the wall dividing the plots belonging to the parties in such a way that the eaves overhung the plaintiff's site. The relevant facts found by the lower Courts are that many years ago there was a thatched house constructed on the defendant's site and against the wall, and this was burnt down some 15 years before suit, or say in 1905. There was then an interval without any building until about 1914, when the defendant put up a thatched cattle-shed against the wall and this in turn was demolished five years before suit. He again attempted to re-build, was interrupted and the plaintiff immediately brought the suit for the injunction.

2. The case has been taken under Section 15 of the Easements Act according to which an easement in order to be established by suit must be enjoyed for 20 years, the period terminating not more than two years before the institution of the suit. Both the lower Courts, while finding that the condition as to 20 years is satisfied, find also that the defendant lost his right to the easement because he had ceased to avail himself of it more than two years before suit. The argument which I am now asked to accept is that mere non-user, independent of any adverse act on the part of the owner of the servient heritage, does not amount to cessation or abandonment within the meaning of the clause relating to the two years' period. I confess that I am unable to see anything in the section itself which would justify such a view. Explanation 2 clearly relates not to the period after which the easement has ceased to be enjoyed but to any interval of non-user within the twenty years of enjoyment. It was to a circumstance of this kind that the case of Ratanlal Bholaram v. Ghulamhusen Abdulali A. 1922 Bom. 3 related and for authority for that position that mere cessation of user not less than two years before suit is enough to extinguish the claim to the easement. I may refer to Muhammad Maroof v. Sultan Ahmed [1914] 12 A. L. J. 415 which has been approved by this Court in Rangappa Naicker v. Appala Raja [1916] 33 I. C. 503 and Muthu Goundan v. Anantha Goundan [1916] 2 L. W. 1107 I am in agreement, therefore, with the view taken by the lower Courts that the defendant cannot successfully resist the claim to an injunction by an appeal to Section 15 of the Easements Act.

3. An endeavour was then made to put the case upon some ground independent of the Act, but as such a plea was not raised before the trial Court, I am not prepared to entertain it now. The second appeal is accordingly dismissed with costs.


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