CHINTAMANI HARGOVAN Vs. RATANJI BHIMBHAI

JUDGEMENT

(1.) The plaintiffs sued for an injunction against defendant Nos. 1 to 3 restraining them from using the way in question as a way for Bhangis and other persons of an untouchable class to clean the privy intended to be erected by them. The plaintiff s claim has been rejected in both Courts, The defendants 1 to 3 are the owners of a house which is marked on the left aide of the plan, and they instituted Suit No. 623 of 1912 against the present plaintiffs and defendant 4 to establish their right of passage for persons, cattle, carts etc., over the open ground in front of the houses of the then defendant. The then plaintiffs right of easement was held to be proved to a passage of six feet in width, and a decree was passed in their favour, together with an injunction for the removal of the obstruction placed by the then defendant. At that time the privy in the defendants house was situated at the opposite end of their premises, and there was no suggestion during the proceedings in that suit that the defendants had over used the road, or the ground over which they claimed the right of way for the purpose of removing night-soil from their privy. They now wish to alter the position of the privy, and claim that they are entitled to a passage for the Municipal sweepers carrying night-soil from their privy over the passage which is referred to in the decree in Suit 623 of 1912.

(2.) Under Section 28 of the Indian Easements Act, the extent of any easement, (other than an easement of necessity), and the mode of its enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose, a right of way of any one kind does not include a right of way of any other kind. Therefore when this fight of way was fixed by the decree in Suit No 623 of 1912, it is quite clear it was never intended by the Court to hold that the then plaintiffs had acquired a right of way over this ground for the Municipal sweepers removing night-soil from their privy.

(3.) Taking into consideration the conditions in this country, it seems to me that if a party is able to prove that he has used a certain way for himself and his servants during the time required by the Indian Easements Act, the Court holding that he has a right of way is bound to consider the evidence in the ease, and decide in what way exactly the right of way claimed has been used.