YOSEF DAVID VARULEKAR Vs. MOSES SOLOMON TALKAR

JUDGEMENT

(1.) The plaintiff in this case obtained a decree against the defendants, the decree being: "ordered that the plaintiff has the right that his sweeper shall have liberty to go through the lane described in the plaint in order to clear the latrine situated in the plaintiff's premises described in the plaint; and the defendants are ordered not to obstruct the sweeper. The plaintiff should get the obstruction caused by the defendant removed through Court." This was on February 16, 1920. On appeal this decree was confirmed by the District Judge, Thana. On second appeal to the High Court the decree was confirmed, the case being Varulekar V/s. Talkar (1921) 21 Bom. L.R. 298, in which reference is made to the Judge being satisfied that the lane was used by the plaintiff as of right for more than twenty years and that a right to an easement had been established. The High Court, however, in its judgment advised the defendants to move the Municipality to require the plaintiff to remove the privy further away from the plaintiff's house, and in that case the privy would not be cleaned by the sweeper using the defendants ground. In consequence of this, the Municipality was moved by the defendants, and the privy which formed the subject of suit and which is marked A on the plan was taken down and a new one built at the point X on the plaintiff's land When the sweeper employed by the plaintiff was going to clean this privy, he was obstructed by the defendants, and the plaintiff, therefore, sought to execute the decree in the former suit, No. 402 of 1919. The defendants contended that as the plaintiff had removed his former privy and rebuilt it, he cannot enforce his rights under the decree. The Subordinate Judge of Alibag found against him, and this finding was confirmed on appeal by the Assistant Judge of Thana. The defendants make this second appeal.

(2.) This case raises a point of law which does not seem to be directly covered by authority, although I should think it is of fairly frequent occurrence. The question is whether by pulling down the privy which formed the subject of the former suit and rebuilding it at another place, the plaintiff has thereby lost the right of easement which he had in respect of the previous privy, and secondly, whether by the removal of the privy which formed the subject-matter of the present suit the decree is no longer capable of execution. It is to be observed that the pass- age used by the sweeper for going to the new privy is precisely the same as it was before in going to the old one. The plaintiff does not seek to impose any greater burden on the servient heritage by requiring the sweeper to pass over a greater portion of the defendants land than before. The learned advocate for the appellants relies on Section 454 and 51 (c) of the indian Easements Act. Section 45 says:- An easement is extinguished when either the dominant or the servient heritage is completely destroyed.

(3.) Section 51 says (we need only refer to the last paragraph):- An easement extinguished under section forty five revives...(c) when the destroyed heritage is a dominant building, and, before twenty years have expired, such building is rebuilt upon the same Bite, and in such a manner as not to impose a greater burden on the servient heritage.