SONI SAMARATAMAL BHURAJ Vs. P B NAGIREDDY

JUDGEMENT

(1.) Defendant in O.S. 475 of 1974 is the appellant in this appeal. Respondent-plaintiffs sued the appellant for a declaration that they have a right to use the latrine situate in Door No. 205(2) in XI Ward, Flower Street, Bellary City and for mandatory injunction directing the appellant to agree for conversion of the said latrine into a septic tank latrine at the cost of both the appellant and respondents.

(2.) It was contended by the plaintiffs that the owner of the house bearing Door No. 205(2) is the defendant plaintiff 1 is the owner of the building bearing Door No. 205(1) and plaintiff 2 is the owner of the building bearing. Door No. 206. All these buildings and another building bearing Door No. 204, belonging to Soni Jetmal, belonged to common owners by name Heerad Basamma and Rudrappa. There was an open latrine in the building bearing door No. 205(2). While alienating the buildings 204, 205(1), 205(2) and 206 the vendors specifically recited in the documents of sale that a right of user of the latrine was reserved. First plaintiff purchased the building bearing Doors Nos. 205(1) and (2) from the said Heerad Rudrappa on 20-5-1957 and subsequently he sold a portion of Door No. 205(2) to the defendant on 7-6-1960 under the sale deed dated 7-6-1960. At that time, first plaintiff specifically reserved in himself the right to use the said latrine since it fell in the portion of the building sold to the defendant. Similarly Heerad Rudrappa and Basamma sold the building bearing Door No. 206 to T. Rangappa on 8-1-1946 for Rs. 800/-. In the said document, the right to use the suit latrine h specifically reserved in the alienee. After the death of Rangappa, his elder brother and his legatee under his Will sold the said house in favour of the 2nd plaintiff on 21-12-1949. Under this sale deed also, it is specifically recited that the 2nd plaintiff has a right to use the latrine situate in Door No. 205(2). The said right of user of the latrine is a right running with the immoveable property and cannot be defeated by the subsequent purchaser.

(3.) Since 15-8-1973, the City Municipality discontinued the scavenging services that were available when the properties were sold and latrine serviced by scavengers. From Feb. 1974 this service was completely stopped. Plaintiffs wanted the defendant to get the latrine converted into a septic tank latrine and were willing to share the cost of conversion ratably. Defendant was reluctant to convert the same into a septic tank latrine or permit the plaintiffs to get it done. Lawyer's notice was issued. Defendant denied his liability to comply. This is how the suit came to be filed for these reliefs. These transfers are admitted by the defendant appellant. He only denied user of the latrine as a right running with the property. Any reservation of such right of user of latrine is contrary to law and in violation of the mandatory provisions of the Municipalities Act and Public Health Act.