Kunjammal And Ors. v. Rathnam Pillai

1. This appeal arises out of a suit by the plaintiff for a permanent injunction restraining the defendants from obstructing the scavenger from passing through the defendants' house and passing the plaintiff's privy. The Base for the plaintiff is that the seavengers have been cleaning his privy for over 60 years by going through the defendants' doorway marked in the plan, crossing the defendants' privy and then passing by a doorway in the wall to the plaintiff's privy which is adjacent and cleaning it. The first defendant's case was that the right was never exercised. The District Munsif found that the plaintiff's privy was cleaned for over 30 to 40 years by the seaveanger passing through the defendants' house a? alleged in the plaint and that it was not obstructed before October 917. The suit was filed on the 19th of Marsh 1918. On appeal the Sutordinate Judge concurred with the findings of the district Muosif and dismissed the appeal. It is contended in second appeal that Section 15 of the Easements Act cannot apply to easements like the present one, that there was no allegation that the right claimed was exercised as a matter of right and to the knowledge of the defendant, and that there can be no right in law to a right of way through a dwelling house.

2. Section 15 of the Easements Act deals with the requisites necessary to acquire a right under the Act, but as pointed out by their Lordships of the Privy Council in Rajrup Koer v. Abul Hostein (.5) other titles and modes of acquiring easements are not excluded or interfered with.

3. It is argued that in the present case all that both the lower Courts have found is that the privy was cleaned by the scavenger entering through defendants' doorway from between 30 to 40 years, but that it has not been shown that this was done as a matter of right and that there is no presumption in sash oases that the exercise was of right.

4. The plaintiff in paragraph 4 of the plaint states "that scavengers have had access to the privy in his house through the doorway of the defendants for the past 60 years" and in paragraph 5 it is alleged "that owing to misunderstandings between the parties the defendants with a view to prevent the scavenger from cleaning the privy '"have looked up the door I) en their side and are obstructing and annoying. the plaintiff in various ways contrary to his right, and that the (sic)'Hhls have no right whatever to prevent the vent the (sic)." Paragraph 6 states that the wrongful acts of the defendants have caused a great deal of trouble and lots to the plaintiff and are also likely to give rite to various Civil and Criminal proceedings and that defendants should be restrained by an injunction, So tar, therefore, as the plaint is construed, not only is it not alleged that the user was permissive but the allegations show that plaintiff elating it as of right.

5. The defendants deny that the scavengers passed through their house in order to clean the plaintiff's privy and state that even if the user were true it could not have been as of right.

6. Four witnesses were examined for the defendants but their evidence is to the effect that the right clamed was never exercised. There is no suggestion of any license given by the defendants or their predecessors-in title to the scavenger cleaning plaintiff's privy by entering through their house.

7. In the case of long enjoyment of the right claimed, a legal origin should, p-s observed by Lord Herschell in Phillips v. Holliday (4), be presumed when there has been a long continued assertion of a right if such a legal origin were possible- and the Court will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title. The presumption of a lost grant in such cases has bean recognised in the leading case of Goosman v. Saltash Corporation (o), circumstances, however, should exist which would render the drawing of the presumption reasonable in law and probable in fact, bat, as pointed out by Farwell, J, in Mercer v. Denne (7) no! only would Courts be slow to draw an inferior of fact which would defeat a legal right which has been exercised for a very long period unless such inference is irresistible but will presume everything that is reason-ably possible to presume in favour of such a right.

8. Where user is proved, the presumption is that it is of right till the contrary is proved. Gale in his valuable treatise on Easements observes: 'The effect of the user would be destroyed if it were shown that it took place by the express permission of the owner of the sarvient tenement for in such a case the user would not have been had with the intention of acquiring or exercising a right. The presumption, however, is that a party enjoying an easement acted under a claim of right until the contrary is shown. " (Page 222, 9th Edition^. In campbell v. Wison (1803) 3 East 294 : 7 R. R. 46 : 102 . E. R.610. it was held that where there was no evidence to show that the way over another's land has been used by permission, such user over 20 years exercised adversely and under a claim of right was sufficient to enable the Jury to raise the presumption of a grant. In Samirsatha Mudaly v. Velu Mudaly (3) Wallis, 0. J" observed: ' On the other hand, the user of the plaintiffs may be presumed to be as of right and to have a lawful origin, and if a lawful origin of the plaintiff's right can be suggested such an origin Can be presumed," It has been argued for the appellant that the presumption in favour of the exercise being as of right rather than license does not apply to India and reference has been made to the cases referred to below.

9. In Shaikh Khola Buksh v, Shaikh Tajuif-din (1), Bannerjee, J,, was of opinion that it would not be safe to follow the rule of English Law without qualification. He was of opinion that, as Section 26 of the Limitation Act requires the user to be as of right, the onus will be on the plaintiff to prove it, and that having regard to the habits of the people of the country it would not be right to draw the came inference from mere user as would be proper and legitimate in a case arising in England. The learned Judge quotes with approval (ha following passage in Mitra on Limitation:

" The nature and character of the servient land, the friendship or relationship between the servient and the dominant owners and the circumstances under which the user had taken place may induce the court to hold that the user was not ' as of right' although there a no direct proof that the enjoyment was had with the permission of the servient owner."

In Meier Mullick v. Hafizuddi Mullid (i) Pigotand Rampini, JJ,, were of opinion that in questions regarding,, a right of way the Court should consider the character of the ground, the spate for which the right ii claimed, the relations between the parties and the (sic)circumestancos under which the user lock place.

10.In Saminatha Muda'p v. Yelu Mudaly (3) Phillips, J., while referring with approval to the dictum of Lord Herechell on phillips v. Halliday (4) and to the rule laid down by Gale, was disposed to draw a difference between a right of way and a right to water. difference to the observations of Banerjee, J., in Shaikh Khoda Buksh v. Shaikh Tauddin (5) the learned Judge oberves: "No doubt, as was " remarked by Baner-jee, J., in shaukh Khoda Buksh v. Shaikh Tauidm (6), that in this country it would not be right to draw the same inference from user as in England, but his remarks had reference to a right of way, in respect of which I agree that the observation has considerable force; but rights to water stand on" different footing, for in this country they are very highly valued and a license for the use of water gratis is by no means common,"

11. We do not think it can not said that rights of way into and through a private dwelling house in this country are not as highly valued as rights to water.

12.In Muthu Goundan v. Anantha Goundan (9'), which related to a right of way, it was found that the plaintiff and his predecessor-in-title ware using the path for over 20 years that though there wore objections more than 2 years before suit actual user did not cease till a fence wag put up a few days prior to suit. It was held by Sadasiva Aiyar and Bakewell, JJ" that the plaintiff was entitled to succeed both under the (sic)Easomanta Act and under the General law, Stdaiva Iyer, J., held that "when open enjoyment has taken please for a long term of years title by prescription was acquired independently of the Statute and a suit to establish that right and be brought within 12 years after the obstruction."

13. We do not think that the cases sited by the appellant's Vakil establish that no presumption should be raised by user and that in this country enjoyment of a right of way should be presumed to be by license till the contrary is proved. All that they decide is that there are conditions and circumstances "to be taken note of in this country before the Court and some to the conclusion that the exercise o± a right of way can be held to have been as of right. What the cir-cubstances are which militate against the user being exercised as of right must, like any other fact, be pleaded and it is for the Court to consider whether, having regard to the existence of all or some conditions and considerations referred to by Bannerjee, J., a reasonable presumption can be drawn as to the exercise being of right. The presumption of right from long user is not in this country a presumption de iwis et demure. It only starts a party with a presumption in his favour which can be rebutted by proof of faces which are (sic)inconsisted with, or which militate against, the inference which nah, in the evidence of evidence by the defendaut, would entitle plaintiff to a decree, It has been argued that there can be no right of way through another parson's house. No authority had been sited in support of this proposition. Having regard to the fast that in towns houses without compounds or backyards are contiguous to each other and that very often access through another house may be the only way which seavengers ¦an gain access, it is difficult to see why no right of way can be acquired, The right to a kitchen of a neighbouring house for washing has been recognised in England (Gale on Easements, page 28), It is, no doubt, true that the use should not go beyond what is reasonably required for the enjoyment of the dominant tenement, but this does not mean that the right itself cannot be acquired where its user may be irksome. All that Mr. Rajah Iyer was able to urge was the trouble his clients will be put to in having to keep the door of his house open.

14. We are of opinion that the decrees of the lower Court are right and dismiss the second appeal with costs.