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Jibananda Chakkabarty Vs. Kalidas Malik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal199,(1915)ILR42Cal164
AppellantJibananda Chakkabarty
RespondentKalidas Malik
DispositionAppeal dismissed
Cases ReferredMayor of Bradford v. Pickless
Excerpt:
easement - prescriptive right to take water by means of definite mode of access--whether owner of servient tenement may substitute some other means of access. - .....dominant owner. it is for the protection as well of the dominant as of the servient owner that the right acquired should be limited to the part of the area of the servient tenement over which it has been actually exercised: clifford v. hoare (1874) l. r. 9 c. p. 362, wood v. stourbridge ry. co. (1864) 16 c. b. n. s. 222, strick & co. v. city officers co. (1906) 22 t. i,. it.667. to put the matter briefly, the extent of a right acquired by prescription is measured by the extent of the use and enjoyment thereof during the prescriptive period: or, as lord watson slated it in macintyre brothers v. macgavin [1893] a. c. j. 268, 277, a prescriptive right to take water in a particular way and at a particular place infers no right to take the supply of water in any other way and at any other.....
Judgment:

Mookerjee and Beachcroft, JJ.

1. This is an appeal by the defendants in a suit for declaration of the prescriptive right of the plaintiffs to take water from a tank, for removal of the obstruction erected by the defendants to the exercise of such right, and for an injunction to restrain interference in future. The facts are not in controversy at this stage and may be briefly narrated. The defendants are the owners of a tank which stands on their laud. The plaintiffs are neighbours and have their residence at some distance towards the east of the tank. They and the members of their family have, for more than 20 years, peaceably and openly, as of right and without interruption used the water of the tank, and claiming title thereto as an easement. They used to obtain access to the water by a path across the east bank and down a flight of steps on the eastern slope of the bank. In 1908, the defendants re-excavated the tank, repaired the slopes on all sides and built a flight of masonry steps on the northern slope. Since then, the defendants have prevented the plaintiffs from access to the water in the accustomed manner by what has been described as the eastern ghat. The defendants, however, do not deny that the plaintiffs have acquired a right of easement in the water of the tank, and they are agreeable to the use of the water by them by means of the new flight of steps built on the northern slope. But the plaintiffs are not satisfied with this and insist on their right to reach the water by what formed the eastern ghat and has now been obliterated by the defendants. The question consequently arises, whether when the owner of a dominant tenement has acquired a prescriptive right to take water from a tank on the servient tenement, and has for this purpose used a particular means of access for the statutory period, he has acquired a right to reach the water by means of such definite mode of access, or, may the servient owner, at his own discretion, substitute for his use some other means of access. No authority directly in point has been placed before us by either the appellants or the respondents in support of their respective contentions. But we are of opinion that on principle the question must be answered in favour of the dominant owner.

2. It is plain, as was pointed out by Lord Campbell C. J. in Race v. Ward (1855) 4 E. & B. 702 : 99 R. R. 702, that water as it issues on excavation of a well or a tank, is not to be considered as produce of the soil, and that a right to enter on land and to take such water maybe acquired as an easement: Manning v. Wasdale (1836) 5 A. & B. 764 : 44 B. E. 576, Constable v. Nicholson (1863) 14 C. B. N. S. 230, Macnaghten v. Baird [1903] 2 I. B. 731, Gardner v. Hodgson [1931] 2 Ch. 148. This night it is obvious, may be analysed into two constituent elements, namely, a right to go on the land of the servient owner and a right to take the water which stands on his land, and so long as it stand's there, is his property. The two constituent rights are acquired simultaneously, but each must nevertheless be acquired in conformity with the statute. Now, in so far as a right of way is concerned, it is clear that to establish a private right of way by prescription it is necessary that in going across the land to any particular point or for any particular purpose a particular route must be used. As Morton J. puts it on behalf of the Full Bench in Hyot v. Kennedy (1898) '170 Moss. 54., 'to establish a way by prescription, the use must be not only open, adverse, uninterrupted, peaceable, continuous, and under a claim of right, but must be confined substantially to the same route and to substantially the same purpose for which the way was designed originally, unless the way is one for all purposes.' This is plain, for a way imports of necessity a right of passing along a particular route between certain termini: Jones v. Percival (1827) 5 Pick. 485., Holmes v. Seely (1828) 19 Wendell. 507., Rogers v. Duncan (1890) 18 Can. Sup. Ct. 710. On this principle it has been ruled that the owner of a private right of way is entitled to enter the way at one and the same place only, and not at any other; for instance, if a way to a field runs by the side of the field, the dominant owner is not entitled to alter the position of the gate through which he has been accustomed to pass from the field to the way and to make a new entrance at a Fresh place: Woodyer v. Haddon (1813) 5 Taunt. 120, 132., Beridge v. Ward (1860) 2 Fos. & Fin. 208, affirmed in (1861) 10 0. 15. N. S. 400., Marshall v. Ulles water S. N. Co. (1871) L. R. 7 Q. B. 166. The rule is based on obvious good sense, for though the servient owner may not object to a person entering his land at a particular spot, for that may not cause him any inconvenience, it may be very much against his inclination, and it may be detrimental to his property that the dominant owner should enter it at any other place. But the position is clearly mutual, and if the right of way has been acquired from one point to another in a particular direction, the servient owner cannot, at his choice, substitute another way between the same points but by a different route, which might be less convenient to the dominant owner. It is for the protection as well of the dominant as of the servient owner that the right acquired should be limited to the part of the area of the servient tenement over which it has been actually exercised: Clifford v. Hoare (1874) L. R. 9 C. P. 362, Wood v. Stourbridge Ry. Co. (1864) 16 C. B. N. S. 222, Strick & Co. v. City Officers Co. (1906) 22 T. I,. It.667. To put the matter briefly, the extent of a right acquired by prescription is measured by the extent of the use and enjoyment thereof during the prescriptive period: or, as Lord Watson slated it in Macintyre Brothers v. MacGavin [1893] A. C. J. 268, 277, a prescriptive right to take water in a particular way and at a particular place infers no right to take the supply of water in any other way and at any other place; Blackburne v. Sommers (1879) L. R. 5 Ir. 1, Hussain Rowther v. Abubakar (1909) 20 Mad. L. J. 699. We are not here concerned with the question of the alteration of the made of enjoyment of a right of easement by mutual consent of parties, nor are we called upon to examine the question of the right of the dominant owner to deviate from the way acquired by prescription, when such way has been obstructed by the servient owner himself: Selby v. Nettlefield (1873) h- R. 9 Oh. App.111, 14. Hawkins v. Carbines (1857) 27 L. J. Ex. 44. The general rule is that when a right of way by a particular track has been acquired by a dominant owner, the servient owner, cannot force upon him, in lieu thereof, a different track, any more than the dominant owner himself can, at his discretion, take recourse to a different path. Tested in the light of this principle, the claim of the plaintiffs is un-answerable. They have proved to the satisfaction of the Courts below, that, for much longer than the statutory period, they have had free access to the water of the tank of the defendants by a track across the eastern bank and by a flight of steps down the eastern slope. The prescriptive right they have acquired has become indefeasible and the defendants were not entitled to improve the tank so as to interrupt and make impossible the exercise of the right of the defendants in the particular mode they had adopted for many years. The position might have been different if the plaintiffs had merely proved that they had appropriated the water of the tank for the statutory period and had failed to show that they had used a definite means of access to reach the water; in such a contingency, while the plaintiffs would have acquired a prescriptive right to use the water, they could not have claimed access to the tank by a particular path; they would have had no ground for complaint so long as the defendants allowed them reasonable facilities of approach to the tank. In the case before us, however, the plaintiffs, as we have seen, stand in a position of much greater advantage; they have acquired a right to reach the water by a definite path and also a right to use the water. We may add that the conduct of the plaintiffs is really not quite so unreasonable as has been characterised by the defendants. The access to the water of the tank by way of the flight of new masonry steps on the northern slope involves the use of a longer and more circuitous way and what is more Important, a loss of privacy, to which so much importance is attached by females in this country. But it is immaterial what motive animates the plaintiffs, for, as Lord Halsbury L. C. said in Mayor of Bradford v. Pickless [1895] A. 0.587, no use of property which would be legal if due to a proper motive, can become illegal, because it is prompted by a motive which is improper or even malicious. We are of opinion that as the plaintiff's have acquired a right, not merely to the use of the water of the tank of the defendants but also to have access to the water in a particular mode, the Court of first instance rightly decreed the suit; and as that decree has been confirmed by the Subordinate Judge, this appeal must be dismissed with costs.


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