ABDUL RASHID Vs. BBRAHAM SARAN

JUDGEMENT

(1.) This is a second appeal by the defendants who are mutwallis under a deed of wakf of certain land in the city of Moradabad. The facts are as follows : One Nazir Khan built a house 50 years ago with the permission of Abdul Salam who was the owner of the land and Abdul Salam remained the owner of the site. It is also found by the lower Appellate Court that rent was paid by Nazir Khan to Abdul Salam. The house had a door to the north by which Nazir Khan used to visit the mosque and to say his prayers and apparently used also for general purposes of exit. On 18th August 1917 Nazir Khan got permission from the Municipal Board to open a door to the south. On 30 January 1919 Nazir Khan sold the materials of his house to the plaintiff who became the occupier of the site and owner of the materials of the house. In 1925 the plaintiff took a sale deed from Abdul Salam of the site of the plaintiff's house with no mention of the right of passage or a right to flow water on the land. On 10 February 1934 Abdul Salam and Mt. Ishrat-un-nisa made a wakf of the land remaining to them after the sale to the plaintiff, which lay to the north of the house of the plaintiff, and the defendants were constituted mutwallis of this wakf. The plaintiff claimed that he had a right of easement by right of way and also to flow water over the land to the north of his house across the land which had been made wakf, and he brought his plaint in 1934 for demolition of a wall which the defendants had constructed across the passage used by the plaintiff from his northern door, and asked also for an injunction against the defendants. The defendants denied that plaintiff had acquired any right of way because only one person was the owner of both pieces of land up till 1925.

(2.) The Courts below have both upheld the case for the plaintiff and granted the relief claimed in the plaint. The defendants appealed to the High Court in second appeal and the whole appeal has been referred to a Full Bench. The actual point of law has not been formulated very definitely by the referring Bench but it appears to be : "Can a lessee of the land which he has taken for building purposes acquire a right of way by casement over other land owned by his lesser?"

(3.) This question first came before this Court in Udit Singh V/s. Kashi Ram (1892) 14 All. 185, where the Full Bench of five Judges applied the law before the Easements Act came into force in these provinces. The Easements Act is of 1882 but it was applied to the United Provinces by Act 8 of 1891. In that Full Bench case, the plaintiff was a corn dealer who established a market upon a plot of land which he rented from the defendants. To the north of the plot was a piece of waste land belonging to the defendants and access to the market could only be obtained through this land. Such access was afforded by a wide opening between certain buildings on the west and east. The defendants built a wall across the opening and plaintiff brought a suit for demolition of the wall and declaration that he was entitled to an casement by way of prescription through the defendants waste land to the market. The learned Chief Justice Sir John Edge held at p. 187: In my opinion it is contrary to commonsense that any such right as is here alleged could possibly have been acquired. Such right could only have been acquired, if at all, in respect of the holding occupied by the plaintiff. That holding is the landlords holding, and they, the landlords, are in possession of it through their tenant, the plaintiff. The plaintiff is not an owner claiming a, right in respect of a dominant tenement over mother, servient tenement; he is not claiming this right for or on behalf of his landlords; but he is claiming it adversely to them, although for and on behalf of their own property.