Baldeo v. Badri Nath And Another

[Banerji, J.:— But the Muhammadan Law does not lay down any fixed period for the acquisition of an easement.]

2. Yes, but the Muhammadan Law never contemplated that a man might have used a way or passage of water for say four months, and he would there by acquire an easement. Mere useris not sufficient. The user must be for a sufficient length of time to convert it into a right.

[Tudball, J.:— Under what law?]

4. Under the law of the land, which is here the Indian Easements Act.

5. Moti Lal Nehni for the respondent, was not called upon.

Banerji, J.—This appeal arises out of a suit for preemption under the Muhammadan Law which has been found to be applicable under a custom prevailing in the locality in which the property in question is situated. The plaintiff claimed pre-emption as shaft khalit, that is as a partner in the immunities and appendages of the property sold. The lower appellate court has found that the defendant vendee is also a partner in the immunities and appendages of the said property and that therefore the plaintiff has no right of pre-emption f referential to that of the vendee defendant. It has been found that the plaintiff has a rightc to discharge water on the property sold. This would give him a right of pre-emption as shafi khalit according to the ruling in Karim v. Priyo Lal Bose(1). What we have to consider is whether the vendee also is a pre-emptor of the same class. The lower appellate court has found that between the property sold and the house of the vendee there is a lane which is not a thoroughfare. Into this lane the water from the stables which comprise the property sold, and the appellant's house, is discharged. It is urged that there is nothing to show that the defendant has under the Easements Act acquired a right of easement to discharge water on the lane lying between his house and the property sold and that therefore he could not be regarded as a shafi khalit. By the term shafi khalit is understood, according to the Hidaya, a partner in the immunities and appendages of the property, such as a right to water and roads. The right to discharge water on the lane is one of the immunities and appendages of the property sold. The defendant vendee participates in the same immunities, that is, he also discharges his water on the lane in question. He must therefore be regarded as a shafi khalit within the meaning of the Muhammadan Law. That law does not prescribe any period which would give a person the right to enjoy an immunity such as that of discharging water or a right of way. In a case like this we must take into consideration the rules of the Muhammadan Law as being rules of justice, equity and good conscience. Applying those rules in this case, since the vendee is also a partner in the immunities of the property sold, he is a shafi khalit and the plaintiff has no better right than the vendee possesses. We accordingly dismiss the appeal with costs including fees on the higher scale.

6. The respondents have taken objections under order 41, rule 22, of the Code of Civil Procedure, as to costs which the court below directed the respective parties to bear. It is not shown that in the matter of costs the exercise of its discretion by the court below was unwarranted. We therefore dismiss the objection with costs.

P.DAppeal dismissed.