Mahabir Bhagat and Others vs Ram Chandra Bhagat and Others

Ray, J.—This is defendant 1''s second appeal in a suit instituted by the plaintiffs-respondents for a declaration of (1) their right of easement of way for a sweeper''s passage necessary for cleansing their latrines situate at the north-eastern corner of their house, (2) for restraining the defendants from obstructing the passage, and (3) enjoining upon them to remove the obstruction created by putting up a door at the northern end of the lane in question. The learned lower appellate Court by his judgment of affirmance has granted the plaintiffs a decree in terms as prayed for.

The plaintiffs based their cause of action on the following assertions of fact and law. That the plaintiffs and defendants constituted a joint Hindu family till the year 1931 when they separated and the properties were divided by metes and bounds as per a registered partition deed Ex. H, dated 18-2-1981. The family while in joint enjoyment of their dwelling houses had their privies to the north of the house block. There was and still is adjoining to the south of the parties'' houses a municipal road running east to west. Almost parallel to the southern road there runs a narrow strip of land to the north of the houses also running east to west. There is no doubt that this northern strip of open and parti land is used as a passage and has been referred to, very freely, by the parties in their evidence as "a passage." It is common ground that this passage on the north running east west touches the privies both old and new and furnishes an unobstructed way for the sweepers. The disputed lane has been existing in the very same condition and in the same site from before the partition and this lane running north-south, as it does, is the connecting road joining the southern municipal road and the northern passage of common parti land referred to above. By the partition of the year 1981 the block of ancestral residential houses of the parties was divided into two blocks east and west. The western block fell to the share of the plaintiffs of which they are still in enjoyment and the eastern block including the lane in dispute which was to the eastern-most side of the entire block of houses fell to the share of the defendants. The facts stated so far are not in dispute as between the parties. The plaintiffs'' case was that by severance of the joint ownership and by inclusion of the disputed lane as a part of the homestead block allotted to the defendants in lieu of their share, they did not lose the right of user of the lane as a passage for sweepers having had, as a matter of utter necessity, to clean their privies on the north of their part of the houses or rather to the north-east corner thereof. This was a way of necessity they urged, and should be taken to have been impliedly granted to them as a result of the severance of ownership of the joint property, and as a result of their having been given the western block of the houses, and the lands underneath, which contain no way connecting the northern and southern passages lying respectively to the north and south of their block, so as to enable the sweeper to come from the southern road to the northern one for the purpose of cleansing their latrine. They, therefore, claimed that this is an easement of necessity which must be taken to have been impliedly granted to them in the partition in the absence of any covenant or disposition to the contrary. The defendants having obstructed this way they have the cause of action for the suit and they are entitled to the reliefs prayed for as mentioned above.

The defendants resisted the suit on the allegations (1) that the disputed lane was never used as a sweeper''s passage for the purpose of cleansing the latrines of the parties either before or after the partition, (2) that sweepers used to come from the southern road to the northern passage by a lane to the further east of the disputed lane intervened by the houses of Muneshwar Bhagat, and that of several others lying in a row to the east of the disputed lane, the house of Muneshwar being to adjacent east thereof and (3) that, at any rate, the plaintiffs have got a lane to the adjoining west of their houses which is the way for their sweepers. They further assert, as a proposition of law, that on account of the collapse of the old houses including the privies of the parties by the earthquake of 1934, the dominant tenement, for beneficial enjoyment whereof the alleged right of easement could have been claimed, has ceased to exist, and as the plaintiff could well rebuild their houses, which they have done, leaving open a passage either to the east or to the west of their newly built houses connecting the northern and southern passages, so as to afford a sweeper''s passage for their conservancy services, they cannot be allowed to claim right of way in the disputed lane as a matter of necessity.

It has been concurrently found by both the Courts below, that prior to partition the disputed lane was the sweeper''s passage for the privies of the joint family and that the same continued to be used, in the same manner, and the same purpose, for a considerable number of years even after the partition. It has also been found that the lane to the adjoining west of the plaintiffs'' houses does not belong to them but to one Aklu Sah and that the said lane of Aklu is separated at its north from the common passage of parti land by a piece of hari land which belongs to Aklu Sah and that thus there is no outlet from the northern passage to the southern municipal road through the western lane. It has also been found that the defendants'' allegation that all the while the connecting passage between the southern municipal road and the northern passage of parti land lay to further east of the houses of Muneshwar and others is ill-founded. In short, the concurrent finding of both the Courts below is that the disputed lane is the only way by which the passage to the north of the parties'' house can be reached from the southern municipal road passing in front of their houses; It has also been found as a fact that the present privies for the clearance whereof the right of way is being claimed in the suit is to the further north of the site of the old privy that fell to the share of the plaintiffs, the old one having collapsed in the meanwhile by the earthquake, and the plaintiffs, as a result of the previous suit between the parties, not having been allowed to rebuild their new privy on the site of the old one. They have built the new privy on a site newly acquired which is thus it is claimed not a part of the dominant tenement for the enjoyment whereof easement in question is said to have existed, if at all.

The defendants, in second appeal, urged that notwithstanding the aforesaid findings the plaintiffs cannot be granted the reliefs prayed for inasmuch as their present privies are on a new site. Their argument is that assuming that the way from the disputed lane once constituted an easement of necessity and as such was impliedly granted to the plaintiffs for enjoyment of their block of houses, the right can no longer be exercised for the beneficial enjoyment of the new privies, inasmuch as, by locating the new privies on a freshly acquired piece of land they have made the dominant tenement cease to exist. The contention of the defendants is thus two fold: (1) that the deed of partition does not contain any terms that can be construed as granting a right of easement of way over the disputed land in favour of the plaintiffs for the beneficial enjoyment of the lands and the buildings that were allotted to their share at the partition, and (2) that in any view of the matter, the old house and the old privies having collapsed by the earthquake of 1934 and the new privy having been built on a site to the further north of the lands that constituted the dominant tenement, the right of easement of way, if any, must be taken as extinct. There was also a faint attempt to attack the correctness of the'' findings of the learned lower appellate Court, but this was not adhered to till last. The question, therefore, that falls to be determined is pure question of law as formulated by the learned Counsel for the defendants-appellants in his arguments set forth above.

The learned Counsel for the respondents urges in reply that the right of easement claimed is an easement of necessity, and should, therefore, be presumed in favour of the plaintiffs as inherent in severance of tenements consequent on cessation of common ownership on partition, and that the change in the dominant tenement, if any, is not of a substantial character and does not involve an increase of burden on the servient tenement and is not sufficient to extinguish the right.

I shall now proceed to set out a brief summary of the law on the subject. The law makes a clear distinction between an implied'' grant and a presumed grant. The former arises out of intention as expressed in words used by the grantor and considered with reference to the state of circumstances existing at the time of the grant, whereas in the latter case, the grant operates not by virtue of any words used by the grantor but by virtue of a legal presumption-arising out of necessity whether absolute or of the qualified character. In the latter case, easement emerges as a necessity from the severance of the dominant tenement from the servient one, both of which erstwhile were the subject of common ownership. This presumption of law is made in favour of easements of necessity. At any rate, such easements are the most ordinary instances of the kind. It is futile, therefore, to argue that the terms of the partition deed which constituted a grant, as it were, of the dominant tenement in favour of the plaintiffs by the defendants did not contain words that would either by expression or by implication make out a grant of any easement. In fact, there was no pre-existing easement at the time of partition. The land that was being used for the purpose of way for a sweeper''s passage was subject to the ownership of the parties. In this state of things, existence of easement was out of the question. The origin of these easements is described in the following terms in Peacock''s Law relating to Easements in British India, Edn. 8, p. 389:

These easements arise on a severance of tenements,'' whether by partition, or otherwise, on the principle that the law will presume an additional grant in favour of the grantee or a reservation in favour of the grantor of everything absolutely necessary for the enjoyment of the dominant tenement.

This principle has been consistently recognised from the earliest times.

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This principle seems to be the foundation of that species of way which is usually called a way of necessity.

Coming to the facts of the present case, it will appear quite plainly that but for the presumed grant of way of necessity over the disputed land, the dominant tenements allotted to the plaintiffs on partition would be incapable of enjoyment. It has been found that not only this way was ever used as a sweeper''s passage but also on partition the plaintiffs'' western block of houses and the privy appertaining thereto were not accessible to a sweeper through any other passage whatsoever. This disputed way of necessity has, therefore, to be presumed to have been granted as a matter of necessity to the plaintiffs by the defendants. This is a grant which takes place by operation of law, not by any act of parties except severance of tenements. In my judgment, therefore, the finding of the Court below that the claimed right of way enured to the plaintiffs at the time of partition is a correct finding and must be upheld.

The next question that I proceed to deal with is whether the easement of way acquired at the partition has, under the circumstances of the present case, become extinct. There are four different modes of extinction of easements howsoever acquired. They are, (1) extinction of unity of absolute ownership, that is, when one of the tenements merges in the other so as to result in the common ownership of both; (2) extinction through the authorised act of the servient owner, that is, when the dominant owner authorises the owner of the servient tenement to do an act of a permanent nature to be done on the servient tenement the necessary consequence of which is to prevent the future enjoyment of the easement: (3) extinction by abandonment, that is, when the owner of the dominant tenement either expressly or by implication releases the servient tenement from the burden of an easement; and (4) extinction by forfeiture. In the present case, having in view the findings recorded by the learned Court below, and the arguments advanced in second appeal the first three cases of extinction do not call for any treatment as they are irrelevant to the case in hand. The case of extinction by forfeiture is dealt with in Peacock on Easements, Edn. 3, p. 561, et. seq. The general principles of extinction are expressed by the learned author in the following terms:

This method of extinction is founded on the general principle that the burthen on the servient tenement may not be increased by anything done by the owner of the dominant tenement.

The question here is not one so much of cessation of enjoyment, as in the case of an abandonment, as one of additional, or otherwise changed, user and its effect upon the existence of the easement.

With regard to affirmative or discontinuous easements, such as, for example, easements of way and easements to take water, an excessive user, being easily ascertainable, does not of itself affect the pre-existing easement.

Thus, where a man having a right of foot-way along a road uses it as a carriage-way, such excessive user does not destroy the right of foot-way, as the two kinds of user are distinguishable and separable, and whilst it renders the owner of the right of foot-way liable in trespass, it does not prevent him from maintaining an action for the disturbance of his right. So, too, the user of a right of way for the purpose of giving access to land to which the easement is not appurtenant does not of itself destroy the easement, but gives the servient owner a right by declaration or otherwise to have the exercise of the easement confined within its legal limits Harris v. Flower & Son. (1905) 91 L.T. 816.

These general principles, however, are subject to variation according to variation in Certain known circumstances. With regard to extinction of easement:of necessity in particular, it is stated by the same learned author at p. 589:

An easement of necessity is extinguished neither by alteration of the dominant tenement nor by non-user, but only by the disappearance of the necessity.

This is almost a self-evident proposition and scarcely needs authority to support it. The question was raised and determined in Homes v. Goring. (1824) 2 Bing. 76 in which it was held that though a way of necessity may be acquired at the time of the purchase of particular land, yet if the purchaser subsequently becomes possessed of other ground over which he can pass, the necessity, and therefore the reason for the existence of the right of way, is at an end, and the right itself also ceases (Goddard''s Law of Easements, Edn. 8, p. 509). In support of this decision, a passage from a note of Mr. Serjt. Williams to the case of Pom-fret v. Ricroft (1669) 1 Sau 321 was cited by Best C.J., where it is said that a way of necessity, when the nature of it is considered, will be found to be nothing else than a way by grant: but added the Judge, a grant of no more than the circumstances which raise the implication of the grant require.

In this particular case, according to the findings, it has been negatived in the clearest possible terms by the learned Courts below that it is not possible, nor has it become possible for the dominant owner, that is, the plaintiffs, to reach the same point in the northern passage by another way over his own land.

The contention that the lane to the west of the plaintiffs'' house was a subsequent acquisition, or, at any rate, could afford the necessary way for the sweeper''s passage, as I have shown above, fully collapsed. In short, the circumstances of this case which raise the implication of the grant are still in existence in their full vigour and force. The other branch of the appellants'' learned Counsel''s argument is that as the privy which the plaintiffs now require to be served by the sweeper is to the further north of the old privy the site of which is now vacant, the easement claimed is either different in nature or in extent from the one that the law presumes in favour of the plaintiffs. In other words, there is an additional burden of a right of way on the disputed land, and, therefore, the plaintiffs should not be allowed to have it. This argument at first sight sounds attractive and is in consonance with the well-known principle of law laid down in some English cases the substance of which has been summarised in the following terms in Goddard''s Law of Easements (Edn. 8, p. 387) and is in the following terms:

The dominant owner, having only this limited right of using his way, is not entitled to use it for going to the dominant tenement (in this case for going to the old privy on its old site) and thence to some other place beyond (to the new privy in the present case), if the going to the latter spot was in reality the purpose of his journey, for he would then in effect be using the way for passing to some other place than the dominant tenement, and he would be imposing a greater burden on the servient estate than was intended by the grantor of the easement, He may not, therefore, make a mere colourable use of the dominant tenement to make it appear that the object of using the way was to go there, when, in fact, his intention was afterwards to go to a different place. Thus, in Skull v. Glenister. (1864) 16 OB 81 an owner of land was entitled to a right of way through a lane from a highway, and he was possessed of ground adjoining the dominant tenement, on which he was building a number of cottages. In order to get benefit of the lane for carrying the building materials to the ground on which the cottages were being built, he carried them first to the land to which the right of way was appurtenant, and having deposited them there, subsequently moved them to the land on which he was building. In the action it was held that he was not entitled, by making this mere colourable use of the dominant tenement, to carry the building materials over the way; and that it was for the jury to say, from the character of the defendant''s acts, what was the intention with which those acts were done. A case which at first sight appears to conflict with this rule is Finch v. G.W. Ry. Co. (1880) 5 Ex. D. 254. The way in question had been an agricultural way to certain fields allotted by an inclosure award. In course of time the Great Western Railway Company constructed their line across the fields and made a cattle pen thereon, to which the way gave access. One question was whether the user of the way to the pen for cattle, which were to be carried thence on the railway, was not a user in excess of the right. Distinction, however, was drawn between the cases of a right of way created by an express grant and one created by the inclosure award in question, which allotted to the defendant''s predecessors the piece of land (then used for the pen) which the defendants were entitled to enjoy without restriction or limitation; and a further distinction was drawn between user to a close and thence to an adjoining close and user to a close and thence to a public highway. The user by the railway company was held to be lawful.

If a way leads to a highway, and not merely to private ground, a somewhat different rule of law prevails, for, when a person is on a highway, he has full right, as one of the public, to go to any place to which the highway leads; if, therefore, a highway is one of the termini of a private way, and the dominant owner has a right of way to the highway, he may use his easement for the purpose of going to the highway, and then he may proceed elsewhere at his pleasure not by virtue of his easement, but under his right as one of the public.

The principles enunciated in Finch v. G.W. Ry. Co. (1880) 5 Ex. D. 254 do in substance govern the present case in view of the circumstances to be stated very shortly. The disputed passage had all along terminated both on the north and south in public ways. To the south is the southern municipal road running in front of the plaintiffs'' and defendants'' houses and that of others who live to the further east and on the north is a public passage consisting in strip of open parti land lying to the north of the houses of the parties, of Muneshwar Bhagat and others who have their residences to the further east of the parties'' houses in a row running east to west. This passage led to the old privy as then existed at the partition, and this passage either directly touches the new privy or is separated from the new privy by the lands belonging to the plaintiffs themselves. It is not a case, therefore, where the disputed way is to be used for the purpose of passing to the new dominant tenement through old dominant tenement, but is a case of using the way for passing from one highway (the southern municipal road) to another highway (the northern passage of the parti land). The owner of the dominant tenement after going through the disputed passage to, a highway is entitled to go therefrom in any direction or to any destination he likes. When he does this, he does it not by virtue of his right of easement but under his right as one of the public to pass and repass over a public way.

A right of way is limited by certain incidents, such as, (1) purpose, (2) time, (3) width of the way, (4) as to persons who can pass, (5) the place from and to which they can pass and (6) the direction of way. In this case there is no change in the purpose, nor in time, nor the width of the way, nor as to persons who can pass, nor the place from and to which they can pass, nor as to the direction of way, inasmuch as the two termini of the claimed passage are still remaining unaffected by any change, if any, in the dominant tenement. A different consideration would certainly arise if the northern most termini of the disputed way was not the northern passage but the site of the old privy. The plaintiffs'' claimed right would then have been clearly hit by the rule of prohibition which prevents colourable use of an easement of necessity for going to a new dominant tenement through the old one; but as I have shown above, the present case does not fall within the mischief of this rule.

All pleas, therefore, advanced by the appellants'' learned advocate in favour of extinction of the presumed grant of the easement of way of necessity must fail. In the result, for the reasons stated above, the appeal must be dismissed with costs.

Manohar Lall Ag. C.J.

I agree.