1. Mr. Narain Row took the preliminary objection that the 1st appellant could not prosecute this appeal since she had parted with her interest in the subject-matter of the suit. The appellant is still on the record as defendant in the suit. In our opinion, the preliminary objection fails.
2. The decision of this appeal turns on the effect to be given to a clause in a sale-deed, Exhibit H, executed in 1874 by certain warghdars, Krishna Naick and his wife and mother. By this document, the vendor purported to sell to one Juan Fernandez, a portion of the lands comprised in the warg, while retaining for the benefit of Krishna Naick's son, Vankatesu Naick, their warg lands, and also certain Kumaki rights over a specified area which admittedly would ordinarily attach to the warg lands, which were sold to Juan Fernandez. It is these Kumaki rights which are now the subject of dispute. The plaintiff (respondent), who claims under Venkatesu Naick, sues to enforce them, which defendants (appellants) who now represent the vendee tinder Exhibit H, claim them as inseparably attached to the warg lands, title to which has passed to them.
3. The District Munsif dismissed the suit, holding that the plaintiff had no interest in the plaint land, and that the defendants were entitled to enjoy the Kumaki rights therein as being attached to their warg lands.
4. The District Judge reversed this decision apparently holding that the Kumaki rights were transferable and were validly transferred under Exhibit H, and that the defendants were precluded from contesting the validity of the transfer. He, therefore, gave a decree in plaintiff's favour and granted a perpetual injunction restraining the defendants from interfering with the land in question.
5. It seems to us that the view of the District Munsif is correct. There is no dispute now as to the nature and extent of Kumaki privileges. ' Kumaki' land, (i e., lands over which Kumaki privileges are exercised), are waste lands adjoining warg lands on which the ryot holding the latter is allowed to collect leaves for manure and to pasture his cattle as an assistance to the cultivation the warg lands. This is in effect the definition of Kumaki found in the District Manual, as also that adopted by this Court in Secretary of State for India v. Krishnayya 28 M.K 257 : 15 M.L.J. 147. in which the exact meaning of the term is fully discussed. These Kumaki privileges are extinguishable by Government, which may assign the land over which they are exercised to another person than the holder Vide Subbaraya v. Krishnappa 12 M.K 422 .and Secretary of State for India v. Krishnaya 28 M.K 257 : 15 M.L.J. 117 and it is abundantly clear that the reason of their existence is simply to facilitate the cultivation of the warg lands which they adjoin.
6. Can such privileges be transferred apart from the lands for the benefit of which they are allowed? In our opinion, they cannot.
7. They are not rights 'in gross '--to follow the classification of English-- law but rights ' appendant ' and as such inseparable from the land to which they are appendant. Strictly speaking, of course, they are only rights ' in a limited sense inasmuch as they are exercised only by the permission of Government, and it is on this ground a Bench of this Court held in Nagappa v. Subba 16 M.K 304. that the Kumaki' right was not, strictly speaking, an easement. This decision was arrived at solely with reference to the questions of whether the claim there under adjudication was barred by Section 15 of the Easements Act, and does not, in our opinion, preclude us from holding that the Kumaki right is essentially in the nature of a right by way of easement as defined by Section 4, of the Easements Act [Vide illustration (d)] and one which should be regarded as governed by the principle of Section 6 (c) of the Transfer of Property Act.
8. The learned Vakil for the respondent has endeavoured to support the District Judge's decision on the ground that the appellants are estopped from contesting the validity of the severance of the Kumaki rights from the warg land. In our opinion, no question of estoppel arises. The respondent sues to establish a right, and, if we hold--as we do--that the right in question is not his, but passed with the warg land to Juan Fernandez and his assignee, the plaintiff's suit must fail.
9. We set aside the decree of the District Judge and dismiss the suit, but, in the circumstances of the case, direct that each side must bear its own costs throughout.