Bandaru Venkayya and Another vs Lakshmi Narasayya and Another

Viswanatha sastri, J.—The Defendants are the Appellants in this second appeal. The Plaintiff and the Defendants are the owners of neighbouring field; separated by a pathway for some distance. The suit was laid by the Plaintiff for a declaration''of his easementary right to a way along ABEF and NDTV pathways shown in the plan and for/a- mandatory injunction directing the Defendants to remove the thatti wall CGRS put up by "them and also a bund for a kunta lying in their vland in so far as it had been extended. There yas also a prayer for a prohibitory injunction of the Defendants restraining them from causing obstruction to the two pathways in the future and thereby causing damage to the Plaintiff. The suit was dismissed by the trial Court but decreed on appeal by the learned Subordinate Judge.

Th(c) Defendants admitted the existence of the two pathways but alleged that the Plaintiff had agreed to the putting up of the thatti wall and that they had also left sufficient space to the east of the wall on their land for the villagers to pass through the Defendant''s land. They also pleaded that the Plaintiff had no cause of action because he had not sustained any special damage. The Courts below found that the agreement set up by the Defendants was not true. A commissioner was appointed to inspect the locality and to prepare a plan. The plan prepared by the commissioner was marked as Exhibit P-l (a) and the commissioner was examined as P. W. 2.

Admittedly the Defendants raised a thatti wall in the portion CGRS quite recently and the finding is that it caused obstruction to both the pathways referred to in the plaint. There was also a finding by the lower appellate Court that the construction of the thatti wall led to a concentration at a few points of water flowing from the Defendants'' land on to the land of the Plaintiff and an erosion of the Plaintiff''s land by the discharge of water in that manner.

It is argued by the learned Adveate for the Appellant that so long as persons entitled for use the pathway as it existed ail along could pass through another portion of the Defendants'' lai there was no injury caused by the obstruction IX-the pathway and that the pktintill'' had not sustained any special damage by reason of such obstruction so as to entitle him to sue. Tha learned Advocate also referred to S. 22 of the ''Easements Act which provides that the dominant owner moist exercise his right in tb- mode which is least onerous to the servient owner an that when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part-of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.

We have here to deal with a Uviivo pathway which connects the suit vill Onpieherla with Vepn.kampalli, an adjacent village. The pathway is not a public highway in the sense that it has been dedicated to (fie public at large. The allegation in the plaint and the hndimv oi the Court is that it is immemorial pathway set. apart for the use of the and the adjacent vi Eager and that, the pathway ran along the line ah own in the annexed to the ptaint. In the case of these gee pathways which art; not highways dedicated to the public at large but fall within the category of private pathways, it is open to a permanent resident of the village entitled to use the pathway to have a wrongful obstruction to th0 pathway removed by means of a suit for an conjunction at proving special damage unlike the ca.''-o of a public high way.

The injury is one which is individual to the Plaintiff and he can bring a suit for removal of the obstruction and for an injunction restraining the Defendants from repeating it. The fact that others might have suffered a similar injury and might have joined the plaintilf in a representative suit with the sanction or the Court under Order 1, Rule 8, CPC Code does not stand in the way of Plaintiff himself instituting a suit for redressing the wrong; Order 1, Rule 1, CPC Code, is merely permissive .and unless the Plaintiff has an individual right his own to vindicate, the mere grant of permission by the Court under Order 1, Rule 8, will not clothe him'' with a right of suit.

The contention or the learned Advocate for the Appellants that so long the persons entitled to use a pathway are allowed to through some other part of the Defendants'' lands, they have no grievance, is untenable. To establish a right of way across a land, a, is necessary to prove that the way connects one particular point with another through a specified line. The right of way whether it is claimed innriemori.nl custom or by a lost grant, as in this case, must be confined substantially to the same route. A right of way necessarily imports a right of passing along a. particular route or line between two termini.

It is on this footing that it has been held �hat a person having a private right of way should enter the way at one and the same place only and not'' at any other. The dominant owner or the owner exercising the right of way is not entitled to alter the points or the route as he pleases. Any other ''rule would mean that the entire land of the servient owner could be invaded by persons claiming to exercise their right of way over his land and the owner of the servient heritage might be practically deprived of the profitable use of the entire land through which llijj way runs, r''rom this it follows that if the right of way has been acquired from one point to another in a particular direction or according to a particular route, the servient owner cannot at his choice substitute another way between the same points by a different route which might be less convenient to the dominant owner. The right of way acquired whether it is by custom or by way of a lost grant or by way of prescription should be limited to the part of the area of the servient tenement over which it has been actually exer-1 cised. In Dhundiraj Balkrishna Phalinkar Vs. Ramchandra Gangadhar Kale, , it was held by a Bench of the Bombay High Court that a line of way when definitely set out cannot be altered without the consent of the''par-tics and that the provisions of Section 22 of the Indian Easements Act could apply only when the wray co be taken over the premises of the servient owner had not been defined.

The learned Judges held that Section 22 of the Easements Act could only apply where the exact way to be taken over the premises of the servient owner had not been ascertained did not- provido an answer to the question whether the servient owner, when once the right of way has been defined, could substitute a new way. The learned Judge;-, held that the dominant owner was entitled to his strict rights and a right of way, when once defined, cannot be altered except with the consent of the dominant and the servient owners.

The Defendants in the present ease cannot compel the Plaintiff to use a different and substituted way when the Plaintiff and the other villagers have been from time immemorial exercising their right of way from one place to another over a particular route running through the Defendant''s iand and indicated in the plaint plan. The decision in Lachmi Narain v. Ram Sarup, 13 All LJ 821; AIR 1915 All 342) (B), cited by the learned advocate for the Appellant has no bearing on the present question. All that Tudball J., held in that case was that the right of a dominant owner to pass the water flowing naturally over his land across the land of a neighbouring lower owner is not interferred with if the latter diverts the direction of the route of the water in his own land.

Once the water leaves the land of the upper owner, what the lower owner does with it, so long as the water is not penned back and thrown on the land of the upper owner is no concern of his.

For these reasons I am of the opinion that the obstruction caused by the construction of the thatee wall is an actionable wrong in respect of which the Plaintiff had a right of action. If it were necessary for the plaintilf to prove any special injury, he has done so by showing that the construction of the tha tee wall leads to a concentration of water at a few points and causes erosion of his land which would be avoided IF the water were allowed to flow naturally across the whole of the Defendant''s fields. For these reasons, I agree with the decision of the lower appellate Court and dismiss this second appeal, with costs. No leave.