M. Venkatarama Ayyar vs A. Rangaswamy Ayyar

Kuppuswami Aiyar, J.—Defendant is the appellant and this second appeal arises out of a suit filed by the plaintiff for an injunction directing

the defendant to remove a motor shed and a latrine in a portion of the land belonging to the defendant set apart for use as a common road. The

property in dispute is situated in Kodaikanal. The plaintiff, the defendant''s father and four others owned six adjacent plots in that area. They are

marked as plot Nos. 1,2, 3, 4, 5 and 6 in Ex. D. plaintiff is the owner of the plot marked 2 and the defendant''s father was the owner of plot

marked 3. The plan attached to Ex ""E"" is a plan of plots Nos. 1, 2 and 3 and a portion of plot No. 4 in which the portion in dispute is marked out.

The original understanding was that all these six owners should have access to both Bear Shola Road and to Vilpatti Road to the north-east of

these plots and it was agreed that a road leaving from Bear Shola Road to Vilpatti Road should be laid through these six plots. The plaintiff''s case

was that the plot marked ""STQA"" in his plot and that marked ""AQYJ"" in plot No. 3 which belonged to the defendant''s father as shown in the plan

attached to Ex. E were to form portions of the road agreed to be laid connecting Bear Shola Road with the Vilpatti Road. The owners of plots

Nos. 4, 5 and 6 were able to get, by making other purchases, access to Vilpatti Road and therefore they did not reserve in their plots the requisite

portion of the road that was to connect Bear Shola Road with Vilpatti Road. Consequently the plaintiff also thought that his portion of the road

need not be set apart and that he could use it as part of his compound. But the defendant was not able to have access from any road to his plot

No. 3 and so he removed the obstruction placed by the plaintiff at the place marked "" AQ''. The plaintiff thereupon filed a suit, O.S. No. 3 of 1935

for an injunction restraining the defendant from using the portion of his land marked ""STQA"" for going to his plot No. 3 and for directing him to

replace the obstruction removed by him. His case was that he was not bound to allow the defendant to make use of that piece of land as a road

inasmuch as the defendant as heir of his father had not kept his part of the contract by keeping the portion marked ""AQYJ"" as a road. He had

already built thereon a motor shed and a latrine--the two buildings which are in this litigation sought to be removed. During the course of the trial in

O.S. No. 3,of 1935 the defendant stated that he had always been willing to keep the contract and that he was prepared either to remove the

motor shed and latrine or to set aside apart a sufficiently wide portion of the land to the north of the motor shed to enable the plaintiff to pass to

any road which might be opened in plots 4, 5 and 6 for the purposes of having an access to Vilpatti road. The first Court dismissed the suit, but on

appeal the learned Subordinate Judge modified the decree by adding a declaration that the defendant therein was liable to permit the southern

portion of his plot No. 3 set apart under Ex. I and D therein for the purpose of a road. Though the defendant during the course of the trial offered

to remove the motor shed and the latrine, he did not do so. Hence this suit for removal of the two buildings. The defendant contended that he was

not bound to remove them as there was no road in plots Nos. 4, 5 or 6 to which this road could lead and that therefore the plaintiff was not

entitled to the injunction claimed. He also stated that he had always been willing to allot enough space in his plot to connect the plaintiff''s plot

STQA"" with the pathway in plot No. 4 if the plaintiff succeeded in getting a common pathway open in plots Nos. 4 5 and 6. The first Court

dismissed the suit on the ground that the suit was barred by limitation as there was no fresh cause of action. On appeal the learned Subordinate

Judge of Dindigul decreed the suit with costs giving two months'' time to the defendant to remove the superstructure. He found that the suit was not

barred by limitation and that the road had been recognised in the suit of 1935 and decreed the suit. Hence this appeal.

It is not pleaded before me that the suit is barred by limitation. All that has been urged for the appellant is (1) that there has been no substantial

damage or injury caused to the plaintiff to justify the grant of a mandatory injunction and (2) that the defendant is entitled to : allot another portion

of his property adjoining the motor shed on the north to enable the plaintiff to pass through it to plot No. 4 and that consequently he is not entitled

to the injunction claimed.

So far as the second point is concerned, I do not think it is open to the defendants to ask the plaintiff to accept a substituted plot to go to plot

No. 4. This is a case of an easement by grant. As pointed out in Dhundiraj Balakrishna v. Ramachandra Gangadhar I.L.R.(1922) 46 Bom. 910

there is no provision in the Easements Act enabling the servient owner to substitute a new pathway in place of the old one. Reference was also

made there in to the decision in Deacon v. The South-Eastern Railway, Co. (1889) 61 L.T. 377 in which it was pointed out that a right of way

once defined cannot be altered and that the dominant owner was entitled to exercise his strict rights unless he can be induced to consent to a way

of deviation. The case in Selby v. Nettlefold (1873) 9 Ch. App. 111 cited for the appellant has no application to the facts of this case. There a

party who had a right of way was using a deviation over the land of the servient owner when there was an obstruction and the question for

consideration was whether the purchaser from the servient owner could obstruct the former from exercising his right to pass over the deviation. It

was observed there that it will be open to him to substitute another deviation in the place of the deviation used by the plaintiff. That case therefore

has no application to the facts of this case. The case reported in Nuddea Mills Co., Ltd. Vs. Sidheswar Chatterjee and Others, relates to the case

of a municipal highway. I therefore find that it is not open to the defendant to claim that he will be entitled to allot another pathway over another

land of equal area in the place of his one.

Then the only other question is whether any substantial damage has been caused to the plaintiff to justify the grant of a mandatory injunction. It is

common ground that this pathway was reserved to enable the owners of these various sites to have access to Bear Shola Road and to Vilpatti

Road and it is in evidence that there is now no pathway reserved or set apart in plots Nos. 4, 5 and 6. As a matter of fact the plan shows that there

is a compound wall right up to ""YJ"" to the west of plot No. 4 in Ex. "" E."" It will not hence be possible to use pathway over "" AQYJ"" to go to

Vilpatti Road. But then that cannot deprive the plaintiff of the right of way over the plot in question already acquired under the original grant. It is

only to a length of 52 links out of total length of 182 links that there has been this obstruction by the construction of the latrine and motor shed in

1925. I am unable to see how any real or substantial damage is caused to the plaintiff by allowing the motor-shed and the latrine to exist at the end

of the cul-de-sac. If the pathway at its one end, namely, ""YJ"" had not been obstructed by a wall there, it might be used for going to plot No. 4. But

when that has been blocked I am not able to see what real damage the plaintiff is likely to suffer by the presence of the shed and latrine. But if at

any time in the future the wall ""YJ"" is removed or any pathway is opened in plot No. 4 then they would be an obstruction and the plaintiff will be

entitled to have the motor-shed as well as the latrine removed. I therefore think that it will be enough if the plaintiff''s right is preserved by giving him

a right to have the motor-shed and the latrine removed as soon as a pathway is opened in plot No. 4 in continuation of the pathway ""AQYJ"" in the

plan annxed to Ex. E or as soon as the wall ""YJ"" (which it is admitted does not belong to the defendant) in the said plan is removed, and it

becomes possible for the road over ""AQYJ"" to be used to go to plot No. 4. It will be open to the plaintiff to execute this decree as soon as any of

the events mentioned above happens. Subject to this modification, the decree of the lower appellate Court is confirmed. The appellant will pay the

respondent the costs of this appeal.

Levae to appeal is refused.