MAHAMMAD BEARI Vs. BADAVA BEARI

JUDGEMENT

(1.) The defendants are the appellants in this second appeal. The plaintiff and the defendants are neighbours, the plaintiff being the owner of Survey No.1565 and defendant 3 being the owner of Survey No. 1566. It is said that defendants 1 and 2 claim under defendant 3. The plaintiff's suit was for a declaration that the wall marked II in the plan, between the plaintiff's and defendant's properties, was the plaintiff's own wall, that the defendants had no right of passage through the pathway marked D and the defendants should close the doorway marked H (1) and for a mandatory injunction to give effect to the above declaration. The defendants pleaded that wall H was their wall, that it was built on a portion of Survey No. 1566 which belonged to them, and that plaintiff was not entitled to any relief in respect of wall H. With reference to the passage D they claimed a right of way through the same to the buildings F and J. There was also some dispute with reference to a small building T just to the west of F. The trial Court came to the conclusion that the plaintiff was not entitled to wall II since it was constructed wholly on defendant's land, Survey No. 1566. It also found that the defendants were not entitled to any right in respect of building J. It gave a decree in favour of the plaintiff as follows: That the plaintiff is the absolute owner of Survey No. 1565 subject to a right of way in favour of defendants only for their men and goods along the passage D and for the beneficial enjoyment of their building; and it restrained the defendants by an injunction from using the passage D in excess of such right of way. The learned advocate for the respondent-plaintiff suggested that the word building" used in the decree is with reference to the building F. Both sides were dissatisfied with the decision of the trial Court with the result that the plaintiff preferred an appeal No. 16 of 1925, while the defendants filed a memorandum of objections in the appeal, each party claiming the whole of what each wanted in the trial Court.

(2.) The learned Subordinate Judge noted six points for determination in appeal. He agreed with the trial Court with reference to the ownership of wall H and that the defendants were not entitled to any easement in respect of building J. As regards the small building T, agreeing with the trial Court, he held that it was not a nuisance and that the plaintiff was not entitled to any relief in respect of the same. As regards the passage D, the appellate Court found that from about 1899 or 1900 the occupant of F under the defendants, one Ali Beari, was using the passage D and the doorway H (1) in connexion with F and that, after Ali Beari vacated the premises, for a few years prior to the plaint the same was used by the defendants for the passage of men with or without goods. The learned Subordinate Judge found that during Ali Beari's time the same was being utilized for use in connexion with F as a residential building. The learned Subordinate Judge also found that the user for just a few years prior to the plaint mentioned by him in para. 18 of his judgment materially increased the burden of the servient heritage, and being of opinion that the same could not be reduced by the servient owner without interfering with the lawful enjoyment of the easement, he came to the conclusion that Section 43, Easements Act, applied and that the defendant's rights of easement, which existed, became extinguished by the permanent change of the dwelling house F into a warehouse.

(3.) The learned Subordinate Judge accordingly modified the decree passed by the first Court in that respect. The modification appears in his decree which is printed at p. 7 of the pleadings book. It is as follows: That the defendants and their men be, and hereby are, permanently restrained from using the passage D and the doorway II (1) shown in the said plan, and they are likewise directed to close the said doorway.