ARTHUR BARBER Vs. BADRI NARAIN RAI

JUDGEMENT

(1.) IN my judgment the decision, of the lower Appellate Court cannot be supported. The suit was one for the removal of a ridge (khain) built by the defendant to the north of an osara built by the plaintiffs some years ago. To the north of the plaintiffs house lies a plot of land No. 412 of old measurement; now corresponding to No. 497. The defendant is the mortgagee of this land. He brought a suit against the present plaintiffs claiming possession of a portion of plot No. 412 and for the demolition of the osara built by the present plaintiffs to the north of their house. It was alleged in that suit that the site of the osara was a part of plot No. 412 of which the defendant is the mortgagee. The defence to that suit was that the pre sent plaintiffs, who were then defendants, were in adverse possession of the land claim et and that the osara had been built with the consent and acquiescence of the then plaintiff. The Court found that the land belonged to the mortgagor of the present defendant and not to the present plaintiffs, that the latter had not been in adverse possession for more than twelve years and that they had wrongfully trespassed on a part of plot No. 412 of which the present defend ant is the mortgagee. The Court, however, refused to decree demolition of the osara built by the present plaintiffs on the ground that the present plaintiffs had built it under the, erroneous belief that the site of it belonged to them and that at the time of the construction of the osara the then plaintiff or his agent had stood by and had not objected to the construction of the osara. The Court held that under the equitable rule of acquiescence the then plaintiff was estopped from claiming demolition of the osara. A decree, however, for possession of the land lying to the north of the osara was granted to the present defendant and did not impose any limitation or restriction on his right to remain in possession. Subsequently to the passing of this decree, the defendant built the ridge or khain complained of by the plaintiffs immediately to the north of the osara. The plaintiffs assert in their plaint that they have a right of way for themselves and their cattle over the land lying to the north of the osara, that this right has been enjoyed by them for a long time and that the defendant by building the ridge has obstructed it. They, accordingly, claimed demolition of the ridge. The right of easement claimed was denied by the defendant. The Court of first instance dismissed this part of the claim first on the ground that no right of easement was established, and also on the ground that in the previous suit between the parties the right now claimed was not asserted, that it ought to have been made a ground of defence and that as it was not put forward as an answer to the claim and as an unconditional decree was -passed in favour of the plaintiff to that suit for possession of the land, the present plaintiffs are precluded from claiming a right of way over the said land. This decree of the Court of first instance was reversed by the lower Appellate Court, not on the ground that the plaintiffs had a right of way over the land, but for reasons which it is not very easy to understand. The learned Judge says in his judgment that the matter is not res judicata in consequence of the decision in the former suit, that the effect of the decree in that suit was to transfer the osara to the present plaintiffs and that under the provisions of Section 1.1 of the Basements Act the plaintiffs have acquired an "easement of necessity, for passing out of the osara on defendant s land." As regards this view of the learned Judge, 1 may observe, in the first place, that there was no transfer of the osara by the defendant to the plaintiffs either by act of parties or by operation of law. The osara had been built by the plaintiffs themselves. The defendant sued for its demolition on the ground that it had been built on his land. The effect of the decree was that the plaintiffs were allowed to keep their osara on the defendant s land. If there was a transfer of anything it was the transfer of the land and not of the osara. Section 13 of the Easements Act provides that "where one person transfers or bequeaths immoveable property to another, if an easement in other immoveable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement." If it be assumed that the land, the site of the osara, was by operation of law transferred to the plaintiffs, it was not necessary for the enjoyment of the land that the plaintiffs should have a right of way over the land of the defendant lying to the north of the osara. Even for the enjoyment of the osara, it was not necessary that the plaintiffs should have a right to pass over the defendant s land, for the learned Judge him self finds that the plaintiffs house has a door to the north opening into the osara. The osara was built apparently as an addition to the house of the plaintiffs. If there is a door from that house opening into the osara there is means of egress form the osara into the house. The fact that the osara has six doors towards the north does not render it necessary for the enjoyment of the osara that the plaintiffs should pass over the defendant s land. The easement of necessity which the learned Judge holds was created by the operation of the decree in the former suit was never set up by the plaintiffs. It is manifest that no such easement was acquired by them either by reason of the decree in the previous suit or in any other way." The only easement which the plaintiffs claimed was a right of way for themselves and their cattle to the temple, which lies to the west of the defendant s land. As to this they did not in the previous suit assert that they had such right of way. IN answer to the claim put forward in that suit they might and ought to have contended that not only were they owners of the land then in suit, but that even if they were not owners they had a right of easement over the land claimed and the plaintiff to that suit was not entitled to a decree for possession without any restriction. If the plaintiffs had a right of way they ought to have asserted that right] and if they established it the only decree which could have been passed in the plaintiffs favour in that suit, would have been a decree for possession subject to the present plaintiffs right of way. It would not have been a decree for absolute and unrestricted possession. A decree for possession, not subject to any burden, having been passed, it is not open to the plaintiffs now to claim that they have a right to impose a burden on the land decreed to the defendant. IN this view the decree of the Court of first instance is right. I allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts.