KUNJAMMAL Vs. RATHNAM PILLAI

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiff for a permanent injunction restraining the defendants from obstructing the scavenger from passing through the defendants house and passing the plaintiff's privy. The Base for the plaintiff is that the seavengers have been cleaning his privy for over 60 years by going through the defendants doorway marked in the plan, crossing the defendants privy and then passing by a doorway in the wall to the plaintiff's privy which is adjacent and cleaning it. The first defendant's case was that the right was never exercised. The District Munsif found that the plaintiff's privy was cleaned for over 30 to 40 years by the seaveanger passing through the defendants house a? alleged in the plaint and that it was not obstructed before October 917. The suit was filed on the 19 of Marsh 1918. On appeal the Sutordinate Judge concurred with the findings of the district Muosif and dismissed the appeal. It is contended in second appeal that Section 15 of the Easements Act cannot apply to easements like the present one, that there was no allegation that the right claimed was exercised as a matter of right and to the knowledge of the defendant, and that there can be no right in law to a right of way through a dwelling house.

(2.) Section 15 of the Easements Act deals with the requisites necessary to acquire a right under the Act, but as pointed out by their Lordships of the Privy Council in Rajrup Koer V/s. Abul Hostein (.5) other titles and modes of acquiring easements are not excluded or interfered with.

(3.) It is argued that in the present case all that both the lower Courts have found is that the privy was cleaned by the scavenger entering through defendants doorway from between 30 to 40 years, but that it has not been shown that this was done as a matter of right and that there is no presumption in sash oases that the exercise was of right.