SHAMJI GHELABHAI Vs. JAMNADAS MEGHAJI

JUDGEMENT

(1.) The facts in this appeal are simple, but it raises a disputed point of law, and the arguments have taken some time as numerous decisions of the English Courts have been cited. The facts are that an owner of a large piece of land at Ghatkopar divided it into several plots for building purposes, and sold them to different persons reserving one plot for himself. The map shows that the property had only a restricted frontage to the public road, with the result that plots to the rear of the property would have no access to the road, and in order to meet this difficulty a clause was inserted in each sale-deed by which the purchaser bound himself to keep open a passage fifteen feet wide at the edge of his plot for the use of the other plot-holders. The result is that a carriage way fifteen feet wide runs through the centre of the property, and each owner can reach the road by it. The defendant owns two plots directly fronting on the main road, and the carriage way bisects his property. Defendants have erected posts and. gates at points A and B on the map reducing the width of the road to seven feet at A and ten feet at E. The present suit is brought by the owners of plot No. 5 for a declaration that they are entitled to use the full width of the road, fifteen feet, and for removal of the gates. Defendants reply that they are entitled to have the gates there, and there is no obstruction to the plaintiffs. The first Court held the plaintiff was entitled to have the use of the full width of the road, and that the gates constituted an obstruction as they stand at present, and ordered the defendants to leave a clear space of fifteen feet between the gate posts. On appeal by the defendants the Assistant Judge, Thana, varied the decree by directing the defendants to widen the distance between the gates to ten feet, which he considered to be sufficient for the passage of wheeled traffic. He treated the case as one of an easement of right of way. The plaintiffs make this second appeal.

(2.) There is no dispute as to the stipulations in the sale deed, which are common to the sale- deeds of all the owners of the various plots. These are translated in the judgment of the first Court.

(3.) The material portion runs as follows:- You should build on this land after reserving the strip of land on the north measuring fifteen feet broad north to south and ninety feet east to west for the purpose of passage. It is agreed by consent of all persons that the whole passage fifteen feet wide north to south and 653 feet long east to west should be reserved for convenience of all the persons residing in the houses that will be built. Hence, you should not have any obstruction of any sort on this land reserved for passage. You should not obstruct the passage of my carts, horses, cattle and servants.