M VENKATARAMA AYYAR Vs. ARANGASWAMY AYYAR

JUDGEMENT

(1.) Defendant is the appellant and this second appeal arises out of a suit filed by the plaintiff for an injunction directing the defendant to remove a motor shed and a latrine in a portion of the land belonging to the defendant set apart for use as a common road. The property in dispute is situated in Kodaikanal. The plaintiff, the defendant's father and four others owned six adjacent plots in that area. They are marked as plot Nos. 1,2, 3, 4, 5 and 6 in Ex. D. plaintiff is the owner of the plot marked 2 and the defendant's father was the owner of plot marked 3. The plan attached to Ex "E" is a plan of plots Nos. 1, 2 and 3 and a portion of plot No. 4 in which the portion in dispute is marked out. The original understanding was that all these six owners should have access to both Bear Shola Road and to Vilpatti Road to the north-east of these plots and it was agreed that a road leaving from Bear Shola Road to Vilpatti Road should be laid through these six plots. The plaintiff's case was that the plot marked "STQA" in his plot and that marked "AQYJ" in plot No. 3 which belonged to the defendant's father as shown in the plan attached to Ex. E were to form portions of the road agreed to be laid connecting Bear Shola Road with the Vilpatti Road. The owners of plots Nos. 4, 5 and 6 were able to get, by making other purchases, access to Vilpatti Road and therefore they did not reserve in their plots the requisite portion of the road that was to connect Bear Shola Road with Vilpatti Road. Consequently the plaintiff also thought that his portion of the road need not be set apart and that he could use it as part of his compound. But the defendant was not able to have access from any road to his plot No. 3 and so he removed the obstruction placed by the plaintiff at the place marked " AQ . The plaintiff thereupon filed a suit, O.S. No. 3 of 1935 for an injunction restraining the defendant from using the portion of his land marked "STQA" for going to his plot No. 3 and for directing him to replace the obstruction removed by him. His case was that he was not bound to allow the defendant to make use of that piece of land as a road inasmuch as the defendant as heir of his father had not kept his part of the contract by keeping the portion marked "AQYJ" as a road. He had already built thereon a motor shed and a latrine--the two buildings which are in this litigation sought to be removed. During the course of the trial in O.S. No. 3,of 1935 the defendant stated that he had always been willing to keep the contract and that he was prepared either to remove the motor shed and latrine or to set aside apart a sufficiently wide portion of the land to the north of the motor shed to enable the plaintiff to pass to any road which might be opened in plots 4, 5 and 6 for the purposes of having an access to Vilpatti road. The first Court dismissed the suit, but on appeal the learned Subordinate Judge modified the decree by adding a declaration that the defendant therein was liable to permit the southern portion of his plot No. 3 set apart under Ex. I and D therein for the purpose of a road. Though the defendant during the course of the trial offered to remove the motor shed and the latrine, he did not do so. Hence this suit for removal of the two buildings. The defendant contended that he was not bound to remove them as there was no road in plots Nos. 4, 5 or 6 to which this road could lead and that therefore the plaintiff was not entitled to the injunction claimed. He also stated that he had always been willing to allot enough space in his plot to connect the plaintiff's plot "STQA" with the pathway in plot No. 4 if the plaintiff succeeded in getting a common pathway open in plots Nos. 4 5 and 6. The first Court dismissed the suit on the ground that the suit was barred by limitation as there was no fresh cause of action. On appeal the learned Subordinate Judge of Dindigul decreed the suit with costs giving two months time to the defendant to remove the superstructure. He found that the suit was not barred by limitation and that the road had been recognised in the suit of 1935 and decreed the suit. Hence this appeal.

(2.) It is not pleaded before me that the suit is barred by limitation. All that has been urged for the appellant is (1) that there has been no substantial damage or injury caused to the plaintiff to justify the grant of a mandatory injunction and (2) that the defendant is entitled to : allot another portion of his property adjoining the motor shed on the north to enable the plaintiff to pass through it to plot No. 4 and that consequently he is not entitled to the injunction claimed.

(3.) So far as the second point is concerned, I do not think it is open to the defendants to ask the plaintiff to accept a substituted plot to go to plot No. 4. This is a case of an easement by grant. As pointed out in Dhundiraj Balakrishna V/s. Ramachandra Gangadhar (1922) I.L.R. 46 Bom. 910, there is no provision in the Easements Act enabling the servient owner to substitute a new pathway in place of the old one. Reference was also made there in to the decision in Deacon V/s. The South-Eastern Railway, Co. (1889) 61 L.T. 377 in which it was pointed out that a right of way once defined cannot be altered and that the dominant owner was entitled to exercise his strict rights unless he can be induced to consent to a way of deviation. The case in Selby V/s. Nettlefold (1873) 9 Ch. App. 111 cited for the appellant has no application to the facts of this case. There a party who had a right of way was using a deviation over the land of the servient owner when there was an obstruction and the question for consideration was whether the purchaser from the servient owner could obstruct the former from exercising his right to pass over the deviation. It was observed there that it will be open to him to substitute another deviation in the place of the deviation used by the plaintiff. That case therefore has no application to the facts of this case. The case reported in Nuddea Mills Co., Ltd. V/s. Sidheswar Chatterji relates to the case of a municipal highway. I therefore find that it is not open to the defendant to claim that he will be entitled to allot another pathway over another land of equal area in the place of his one.