Dhundiraj Balkrishna Phalinkar vs Ramchandra Gangadhar Kale

Norman Macleod, C.J.—The question in this second appeal is whether the order of the lower appellate Court restraining the defendant from obstructing the plaintiffs'' Bhangi and Bhisti from entering by the door X in the map Exhibit 20 and thence passing over the defendant''s back-yard and entering the plaintiffs'' privy at point A is right.

Defendant''s house adjoins the plaintiffs'' house to the west There is a lane to the west of the defendant''s house and it is admitted that the plaintiffs have a right of way over the defendant''s back-yard, so that the sweeper may have access to the plaintiffs'' privy. The defendant bought his house in 1915. Until then the sweeper had passed through the door X but in 1916 the defendant made certain alterations. He opened a door at the southern end of his wall and after reserving a passage of about three feet he built a wall to the north, so as to reserve for himself the rest of the back-yard. It cannot be said that it would be in any way more inconvenient for the sweeper to pass along this passage to the plaintiffs'' privy instead of going in by the door X as he used to do, but the plaintiffs contend that they are entitled to stand on their strict right, that the right of way from the door X to their privy having once been acquired, the servient owner cannot substitute any other way between the lane and the plaintiffs'' privy. The trial Judge appears to have admitted this proposition of law to be correct, but considered that the plaintiffs were agreeable to the new arrangement when he visited the spot. Because the second plaintiff had adduced no evidence to show that the defendant had made the alterations against his will or without his consent, the learned Judge appears to have held that there was acquiescence on the part of the plaintiffs, and that it was owing to other disputes having arisen between the parties relating to the ownership of the party wall and certain windows in the plaintiffs'' house that the plaintiffs began to object to the obstruction at door X. If an issue had been raised on the point of acquiescence this finding might have been entitled to consideration but the Judge seems to have thought that the plaintiffs even if the issue had been raised, ought to have called evidence to prove that they had not acquiesced, and, as the appellate Court has pointed out, the defendant never pleaded consent, no issue was raised, and the evidence was not directed to it. It would therefore, be dangerous to assume that consent had been given. I do not think that Section 22 of the Indian Easements Act can assist the defendant. Its provisions can only apply when the exact way to be taken over the premises of the servient owner has not been ascertained. Whether the servient owner, when once the right of way has been defined, can substitute a new way is a question which does not seem to have been provided for by the Indian Easements Act and therefore we must have recourse to the Common Law: Lowell v. Smith (1857) 3 C.B.N.S 120 Hulbert v. Dale [1909] 2 Ch. 570 and John Young v. Robert Kinloch [1910] A.C. 169. No doubt the general rule is that a right of way once defined cannot be altered (Deacon v. The South-Eastern Railway Company (1889) 61 L.T. 377 and the dominant owner is entitled to exert his strict rights unless he can be induced to consent to a deviation. The defendant was aware of the existing right of way when he bought his premises and unless he can prove acquiescence in the new way the plaintiffs must succeed. The appeal must be dismissed with costs.

Coyajee, J.

I concur, and would add that Courts in this country have given effect to the general rule that when once the line of way has been definitely set out, neither the dominant nor the servient owner can compel the other to give or to accept a different and a substituted way. In Hamid Hossein v. Gervain (1871) 15 W.R. 496 Norman C.J. observed: "We think it is clear that, if any person has a right of way from one place to another over a particular line, if he and his ancestors have been accustomed to use that way from a long time past, he has a right to go over it, and cannot be compelled to use a different and substituted way." Similarly, in Varajlal Parbhudas v. Moti Kuber (1893) P.J. 473 where the facts were not widely different from those in this case, this Court held that: "If the defendant''s right of way was directly from the door in plaintiff''s osri to the defendant''s osri, the plaintiff cannot obstruct that right of way and offer him another way through his chowk." In my opinion, therefore, the decision of the lower appellate Court is right.