MALKAJAPPA CHANVIRAPPA HULLUR Vs. RACHAPPA PANCHAPPA GULEDGUD

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the decree of the appellate Judge dismissing his suit for a permanent injunction restraining the defendants from obstructing him in passing through their open site while coming out from his house and also from obstructing the passage of the water of his bath room through the said open site. The facts found are that the plaintiff is a purchaser in a Court-sale of a house belonging to defendant No.1, who is the main contestant in the suit and whom I will, therefore, call the defendant. At the time when the property was purchased by the plaintiff there was a door in the southern wall of that house from which there was an access to an open piece of land belonging to the defendant through which there was a way to go towards the west. There was also an outlet; in the southern wall for passage of the water of the house into that open piece of land. The plaintiff claimed the right of way through the door and the right to discharge water from that outlet although the sale-certificate was silent about those rights. The defendant obstructed the plaintiff in the exercise of those rights and hence the present suit.

(2.) THE plaintiff did not plead an easement of necessity in the plaint, but in a subsequent amendment application he pleaded an absolute necessity for both the rights. THE learned appellate Judge held on the evidence that there was no such necessity because the suit house abutted on a public road, and there was nothing to prevent the plaintiff from opening a door in the western wall of his house. So also the bath water could be discharged by opening a mori in the western part of the house. On those grounds it was held that the plaintiff had not proved any absolute necessity to bring his case under Section 13(a) of the Indian Easements Act.

(3.) ACCORDING to the respondent, a property purchased at a Court sale does not pass by operation of law, but it is not necessary to discuss this point as, in my view, the right claimed does not fall under Section 13(b) for other reasons.