RAMACHARYA HUCHACHARYA PANDURANGI Vs. ANANTHACHARYA JAYACHARYA PANDURANGI

JUDGEMENT

(1.) The plaintiff-appellant and the defendant-respondents are neighbours. There is a wall 'FBCGD' belonging to the plaintiff separating the defendants properties from his. There is also a window in the portion of the wall 'FB'. In order to effect repairs and keep the said wall in good condition, it is necessary for the plaintiff to periodically enter into the defendants' vacant land and effect the required repairs. Defendants denied the plaintiff's right.

(2.) The trial Court held that the plaintiff has not proved the right of easement by way of prescription under S. 15 of the Easements Act. It further held that the plaintiff had the right to go to the defendants' hittal to effect the repairs. It further held that the plaintiff had not proved that there was any obstruction by the defendants and therefore declined to grant him any decree. But, in the operative portion of the decree passed by it, it is observed as follows:

(3.) Shri Kothavale, the learned counsel appearing for the appellant, draws my attention to the undisputed facts recorded by the lower appellate Judge. The lower appellate Judge refers to the plaintiff's statement that he has to repair the wall and for that purpose he has to enter the defendants' hittal and there is no other way for doing so, and that wall is in existence since about 30 years and according to him he has to enter the hittal of the defendant through the roof of his house with the help of a ladder to effect the necessary repairs. The learned appellate Judge also refers to the evidence of the first defendant wherein he admits the plaintiff's ownership of the wall in question and that it was built over 30 years ago. The defendants further say that if the walls are to be repaired, it can be repaired, only by entering his backyard. The Courts below while noticing these facts, refrained from granting the plaintiff any relief as he did not plead clearly the easement of necessity. It appears to me that the admission of the defendants and the evidence of the plaintiff established that there is no other way to repair the plaintiff's wall except by getting into the hittal of the defendants Though the cleanings are not clear, the parties are not prejudiced thereby as the facts construing the plea are already on record. The plaintiff relied on the provisions of Ss. 7 and 24 of the Easements Act If once it is held that the plaintiff has an easement of necessity, he has accessory right under S.24 of the Easements Act. In support of this contention, Shri Kothavale invites my attention to the decision of the Madras High Court in Damodarswami Naidu v S.T. Damodaraswami Naidu, (1965) 2 Mad. 522, wherein it is observed that: