M RATANCHAND CHORDIA Vs. KASIM KHALEELI

JUDGEMENT

(1.) THE suit out of which this Letters Patent Appeal arises was instituted by the respondent, who will be referred to as the plaintiff in this judgment for a declaration that he has a right of way across the pathway marked A B C D in the plan attached to the plaint and described in Schedule A to the plaint, and, for a permanent injunction restraining the appellants, who will be referred to as the defendants, from interfering with his rights and for a mandatory injunction to demolish the wall marked X Y in the said plan.

(2.) THE learned Third Assistant City Civil Judge, who tried the suit held in. favour of the plaintiff. On appeal by the defendants before the Principal Judge, City Civil court, Madras, the judgment and decree of the trial Court were reversed and the suit was dismissed. There was a second appeal to this Court by the plaintiff which was heard by Kailasam, J. The learned Judge reversed the judgment and decree of the lower appellate Court and restored that of the trial Court. He, however, granted leave and hence this appeal has been preferred under Cl. 15 of the Letters patentby the aggrieved defendants.

(3.) THE dispute between the parties is as regards the right of way to the premises belonging to the plaintiff called "rushkrum" from Mount Road, Madras across the premises known as "khaleel Mansions". Khaleel Mansions buildings abut the Mount road. But the premises Rushkrum docs not adjoin Mount Road but lies in the hinterland. On the west of the buildings a road called Woods Road runs north to south and on the east there is another road called Club House road, also running north to south. That there is some access to the premises Rushkrum from both these roads is not in dispute. But the question is whether the owner of said premises is entitled as of right to use the pathway A B C D from Mount Road and get access to his building. Shortly put, the case of the plaintiff is that he has got a right of easement, either acquired by prescription or by an implied grant, and that the defendants have no right to interfere with his enjoyment of that right. The defendants dispute this position and they contend that the plaintiff has no right of easement, and that, even if he has such a right, it has become extinguished by reason of the provisions of a Central enactment called the Displaced Persons (Compensation and rehabilitation) Act 44 of 1954-