MAHABIR BHAGAT Vs. RAM CHANDRA BHAGAT

JUDGEMENT

(1.) This is defendant 1's second appeal in a suit instituted by the plaintiffs- respondents for a declaration of (1) their right of easement of way for a sweeper's passage necessary for cleansing their latrines situate at the north-eastern corner of their house, (2) for restraining the defendants from obstructing the passage, and (3) enjoining upon them to remove the obstruction created by putting up a door at the northern end of the lane in question. The learned lower appellate Court by his judgment of affirmance has granted the plaintiffs a decree in terms as prayed for.

(2.) The plaintiffs based their cause of action on the following assertions of fact and law. That the plaintiffs and defendants constituted a joint Hindu family till the year 1931 when they separated and the properties were divided by metes and bounds as per a registered partition deed Ex. H, dated 18-2-1981. The family while in joint enjoyment of their dwelling houses had their privies to the north of the house block. There was and still is adjoining to the south of the parties houses a municipal road running east to west. Almost parallel to the southern road there runs a narrow strip of land to the north of the houses also running east to west. There is no doubt that this northern strip of open and parti land is used as a passage and has been referred to, very freely, by the parties in their evidence as "a passage." It is common ground that this passage on the north running east west touches the privies both old and new and furnishes an unobstructed way for the sweepers. The disputed lane has been existing in the very same condition and in the same site from before the partition and this lane running north-south, as it does, is the connecting road joining the southern municipal road and the northern passage of common parti land referred to above. By the partition of the year 1981 the block of ancestral residential houses of the parties was divided into two blocks east and west. The western block fell to the share of the plaintiffs of which they are still in enjoyment and the eastern block including the lane in dispute which was to the eastern-most side of the entire block of houses fell to the share of the defendants. The facts stated so far are not in dispute as between the parties. The plaintiffs case was that by severance of the joint ownership and by inclusion of the disputed lane as a part of the homestead block allotted to the defendants in lieu of their share, they did not lose the right of user of the lane as a passage for sweepers having had, as a matter of utter necessity, to clean their privies on the north of their part of the houses or rather to the north-east corner thereof. This was a way of necessity they urged, and should be taken to have been impliedly granted to them as a result of the severance of ownership of the joint property, and as a result of their having been given the western block of the houses, and the lands underneath, which contain no way connecting the northern and southern passages lying respectively to the north and south of their block, so as to enable the sweeper to come from the southern road to the northern one for the purpose of cleansing their latrine. They, therefore, claimed that this is an easement of necessity which must be taken to have been impliedly granted to them in the partition in the absence of any covenant or disposition to the contrary. The defendants having obstructed this way they have the cause of action for the suit and they are entitled to the reliefs prayed for as mentioned above.

(3.) The defendants resisted the suit on the allegations (1) that the disputed lane was never used as a sweeper's passage for the purpose of cleansing the latrines of the parties either before or after the partition, (2) that sweepers used to come from the southern road to the northern passage by a lane to the further east of the disputed lane intervened by the houses of Muneshwar Bhagat, and that of several others lying in a row to the east of the disputed lane, the house of Muneshwar being to adjacent east thereof and (3) that, at any rate, the plaintiffs have got a lane to the adjoining west of their houses which is the way for their sweepers. They further assert, as a proposition of law, that on account of the collapse of the old houses including the privies of the parties by the earthquake of 1934, the dominant tenement, for beneficial enjoyment whereof the alleged right of easement could have been claimed, has ceased to exist, and as the plaintiff could well rebuild their houses, which they have done, leaving open a passage either to the east or to the west of their newly built houses connecting the northern and southern passages, so as to afford a sweeper's passage for their conservancy services, they cannot be allowed to claim right of way in the disputed lane as a matter of necessity.