Kuppakkal vs Mathan Chettiar and Others

Venkatasubba Rao, J.—One Rangaswami Chetty sold be the 1st defendant under Exhibit I, dated 26bh June, 1917, a strip of land about

102 feet long and 21 feet wide having a frontage on a public road out of a large block of building vacant site of which he was the owner. The

portion purchased by the 1st defendant I shall call site No. A. The laud exclusive of site No. A may, for the purposes of this appeal, be regarded

as consisting of two parts: (1) The portion 30uth of and contiguous to what was sold to the 1st defendant opening also on the public road (this I

shall call site No. B), and (2) the bulk of the property at the back of the site No. A and the site No. B to which access from the road was over the

said site No. B. (this I shall call site No. C).

Three days subsequent to the sale of she No. A, Rangaswami CheUy sold the remainder of the block, site3 Nos. B and C, to certain persons

from whom the present plaintiffs derive title. On the site No. C the plaintiffs constructed a ginning factory. The 1st defendant, to start with, built a

small house facing the roid on her own site, site No A, leaving the rest of her laud at the back of her house as an open space. She then built

another house on the vacant land and as it has no frontage on the road, she chimed a right of way over the site No. B.

The short question to be decided is, whether she is entitled to this right of way? The basis of her claim is the fact that in the sale dead executed in

her favour the southern boundary of the site conveyed to her is described to be ""Pathway 18 feet in breadth which I am going to set apart,"" The

lower Court having negatived her right, she has preferred this second appeal, lb is found that there were negotiations at the same time in regard to

the sale to the 1st defendant as well as to the plaintiff''s predecessors-in-title. Whether the 1st defendant has acquired the right she claims, depends

entirely upon the construction of the conveyance in her favour. In regard to the surrounding circumstances, two facts seem, in my opinion, to be of

outstanding importance. (1) The land sold to the 1st defendant was about 102 to 105 feet in length and it was vacant building land. It was not be

the expected that the 1st defendant would only build one house upon it. If more that one house was to be built, the access to the house at the back

of the first house would naturally be over the site No. B. (2) The sites B and C were not laid out in building plots, but on the contrary they were

regarded as forming one block to be conveyed to one purchaser. That being as, there was no significance in describing site B as an intended

pathway unless it was a pathway intended also for the use of the 1st defendant.

These two circumstances strongly support the 1st defendant''s case. On a construction of the words relied on I am of the opinion that her

contention must; prevail. In Esplay v. Wilkes (1872) L.R. 7 Ex. 298, Kelly, C.B., quotes with approval the following observations of Mansfield,

C.J., in Roberts v. Karr 1 Taunt 495;-

If you (the lessor) have told me in your lease this piece of land abuts on the road, you cannot be allowed to say that the land on which it abuts is

not a road,

In the same case the observations of Lawrence, J. are also cited:

If a man buys a piece of ground described as abutting upon a road, does he not contemplate the right of coming out into the road through any part

of the premises?"" The facts of Espley v. Wilkes (1872) L.R. 7 Ex. 298 are these: The plaintiff demised by a lease under which the defendant

claimed ""All that plot of land bounded on the east and north by the newly-made streets a plan whereof is indorsed on these presents."" On the

indorsed plan the site of the new street was shown and was marked as ""now streets."" The lease contained covenants by the lessee to build two

houses on the land. The plaintiff afterwards granted to the defendant a lease of the land comprised in the site of one of the proposed new streets

and the plaintiff inclosed the land so that the defendant was unable to reach the east side of his premises. In an action against the defendant for

pulling down this obstruction, it was held that under the defendant''s lease a right of way was granted along the site of the proposed new streets to

his premises. Kelly, C.B. observed that the grantor was estopped from denying that the strips of land, his property, were what he described them

to be, that is to sat, ""streets"" which they could not be unless there is a way through and along them. In Roberts v. Karr 1 Taunt. 495 which is

referred to in Espley v. Wilkes (1872) L.R. 7 Ex. 298, it was held that the grantor and those claiming from him were concluded from preventing

the grantee be come out into the road over the strip of land then in question.

In Furness Railway Co. v. Cumberland Co-operative Guilding Society 52 L.T. 144, the land which was conveyed was at Aha date of the

conveyance waste building land on the outskirts of a town, The plan showed C and M streets. The site of the intended streets was the property of

the vendor. It was held that the conveyance granted to the purchaser a right of way.

In Gogarty v. Horkins (1906) 1 Ir. R. 173 of the two plots demised to the lessee, plot A was described as bounded on the east by ""an intended

road to be 38 feet wide intersecting the said lot from lot B"", and lot B was described as being bounded on the west ""by the said intended road 38

feet wide intersecting the said lot from lot A."" Upon the map annexed to the lease the aforesaid intersecting passage was delineated as being 38

feet wide and was described as ""the proposed new road reserved by the lessor."" It was held that from the words of the lease there was to be

implied a grant of an easement of way across the intersecting space. Harding v. Wilson 2 B. & C. 96 is an old case which is somewhat inconsistent

with the rulings referred to above. But its authority has been doubted both in Furness Railway Co. v. Cumberland Co-operative Guilding Society

52 L.T. 144 and Gogarty v. Horkins (1906) 1 Ir. R. 173. I have therefore come to the conclusion that the 1st defendant ought to succeed. The

plaintiffs propose to construct a wall on both sides of the pathway. This they cannot do. They cannot have an injunction restraining the 1st

defendant from resisting the construction of this wall. In the plaint it is said chat the 1st defendant has been tying her cattle in the pathway and

placing tubs and pots on the way and committing several acts of nuisance. It is clear that the 1st defendant cannot use the pathway for these

purposes. Subject to this reservation the plaintiff''s suit must fail.

The Second Appeal is allowed with costs throughout.