T CHINNAMMAL Vs. DEVANASAMMAL

JUDGEMENT

(1.) IN this case two houses abutting on a public street and separated from each other by a lane belonged as also the lane to the same owner until 1883 when the plaint house was sold to the plaintiff s predecessor. Unfortunately the sale-deed of 1883 which might have assisted us in determining what rights over the lane passed to the purchaser of the plaint-house has not been exhibited and we have to decide the case without it.

(2.) BOTH houses have backyards behind the second compartments abutting in the lane, and in both are gates opening into the lane and admitting the passage of horses and carriages. The evidence for the defence as to how this gate came into existence has not been acted on by the learned Judge, and is manifestly false. The evidence for the plaintiff is that the gate has always been here as long as can be remembered and at least one of the witnesses goes back to 1883 the date of the severance. We think the proper inference of fact is that the gate was opened before this date when the houses and the lane ceased to belong to the same owner. The plaint house was purchased by the plaintiff in 1903 more than twenty years after the severance and we think that the effect of the evidence is that occupiers enjoyed a right of way from the street over the lane to the gate for horses and carriages, etc., as well as foot passengers without obstruction as there is no reliable evidence, if any, for more than twenty years before the present plaintiff s purchase in 1903. As observed by the learned Judge, the plaintiff, one of the Mistresses in the Training School for Teachers, is a Christian and the obstruction which she has suffered is one of a series of annoyances to which she has been subjected by her Hindu neighbours with a view to making her go and live elsewhere. Differing from the learned Judge we think that the evidence is sufficient to prove the; acquisitions of the full easement claimed by the plaintiff by prescription owing to its having been enjoyed peaceably and as of right for a period of twenty years ending within two years before suit. It is, therefore, unnecessary to decide whether the finding of the learned Judge that the easement in question passed as an easement of necessity under Section 13 of the Indian Easements Act can be supported. Seeing that there were other means of access to the house it would be necessary to put a wider construction upon the term of necessity than is put in the English cases, although the observations of Bowen, L.J., and Fry, L.J., in Bayley v. Great Western Railway Co. 26 Ch. D. 434 : 51 L.T. 337 may go to show that such an easement would arise in the like circumstances in England. This question was not expressly decided in Wuteler v. Sharpe 15 A. 270 and in the absence of the sale-deed by which severance was effected and of fuller argument than we have had in this case, we reserve our opinion in regard to it. The appeal is dismissed with costs.