YOSEF DAVID VARULEKAR Vs. MOSES SOLOMON TALKAR

JUDGEMENT

(1.) BOTH the lower Courts have held on the evidence that the plaintiff's sweeper used the passage along the east side of the hedge inside the defendants compound to get to the privy, which curiously enough was built so that the sweeper could only have access to it from the defendants compound. That is a question of fact which it is difficult to avoid, and I see no reason myself for disturbing the decision of the lower Courts. The defendants evidently have been very remiss, because from the photograph which has been produced here, the privy must certainly be a nuisance to them as it is within a few feet of their house. But at the same time any casual observer must have noticed that it was cleaned from the defendants side of the hedge. Therefore, they must have had knowledge that the plaintiff's sweeper was using the lane. As the Judge was satisfied that the lane was used by the plaintiff's sweeper as of right for more than twenty years, a right to an easement has been established. I would advise the defendants to move the Municipality to require the plaintiff to remove the privy further away from the plaintiff's house. In that case the privy will not have to be cleaned by the sweeper using the defendants ground. The appeal must be dismissed with costs. Shah, J.

(2.) I concur. I cannot say that I am quite satisfied with the finding in this case by the lower appellate Court, but it is a finding of fact, and I do not think it is reasonably possible to interfere with the finding in second appeal, though, having regard to the situation of the house, I should have been very glad to see my way to relieve the defendants from the obligation of providing a passage for the plaintiff's sweeper over their ground.