KARUNAIANANDA NADAR Vs. V S V SENTHIAPPA NADAR

JUDGEMENT

(1.) THE plaintiff in O. S. No. 352 of 1966 on the file of the Court of the District munsif Sattur, who lost before the Courts below, is the appellant herein. The suit was instituted by the appellant for the issue of a mandatory injunction compelling the respondent herein to remove the sun shade which he put up on his own property. The allegation of the appellant was that he was entitled to a pathway of 18 ft. wide, having purchased that right of way under Ex. A-2, dated 31-1-1960, registration copy of a sale deed and Ex. A-3 dated 18-1-1960, a registered sale deed, from the owners of the land and consequently as the disputed sun shade obstructs his right of way, he was entitled to have a mandatory injunction for the removal thereof. It is admitted that the size of the sun shade is 2 1/4 ft. in width protruding into the pathway and 8' in length. Consequently out of 18' width of the pathway, the obstructed portion is only 2 1/4'. The question was considered by the courts below as to whether the appellant would be able to enjoy his right of pathway reasonably without any inconvenience to him with the balance of 15 3/4 ft. width of the pathway. As a matter of fact, on the basis of the evidence, the courts below have gone into the question and come to the conclusion that the sun shade does not in any way interfere with the reasonable use of the pathway. as a pathway not only for the passing and re-passing of the appellant but also for taking lorries by the appellant and therefore the appellant was not entitled to the mandatory injunction asked for and accordingly dismissed the suit. Hence the present second appeal by the plaintiff in the suit.

(2.) MR. V. Sundaresan, learned counsel for the appellant does not question any of the findings of the Courts below with regard to the reasonable use of the pathway with the sun shades in existence, by the appellant. But he contends that having regard to Section 20 of the Easements Act 1882, hereinafter referred to as the act, this being a specific case of grant of easement over a pathway of 18' wide, no diminution or whittling down of that right can be permitted under any other provision of Chapter III of the Act. I may just refer to Section 20 and 22 of the Act which are the relevant sections. Section 20 states that the rules contained in chapter III in which the said section occurs, are controlled by any contract between the dominant and servient owners relating to the servient heritage, and the provisions of the instrument or decree, if any, by which the easement referred to was imposed. Section 22 states that the dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of as easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall at all request of the servient owner, be so confined. Mr. Sundaresan's simple argument is that Section 22 has no application to the present case, in view of Section 20, because the appellant had obtained a right of passage over a pathway of 18' wide by express grant and therefore the owner of the land, namely, the respondent herein had no right to diminish the width of the pathway in respect of which the appellant had obtained a right under Exs. A-2 and A-3. In support of this contention, the learned counsel for the appellant relied on Shamji Ghelabhai v. Jamnadas Meghaji, ILR 55 bom 138 = (AIR 1931 Bom 87 ). I am of the view that the decision of not of any assistance to the appellant, having regard to the facts of the present case. In that case, the covenant was as follows:--

(3.) IN view of this, I am of the opinion that no interference whatever is called for with the conclusion of the courts below. The second appeal fails and is dismissed. There will be no order as to costs. No leave.