H B S DHALIWALL Vs. MRSPPUECH

JUDGEMENT

(1.) THIS was a suit brought by the plaintiff to have it declared that she had a right of way over the defendant's land. Mr. Dyer, a barrister who resided and practised at Mussourie, at one time owned two houses known as the "Whitehouse" and the "Chalet." He sold the Whitehouse to the plaintiff. Three years afterwards his widow sold the Chalet to the defendant. When the plaintiff bought the "Whitehouse" there was a narrow passage through which people at some inconvenience could approach its outhouses. People carrying loads, however, could not pass along the passage at all, so narrow was it. The plaintiff's contention was that because of the narrowness of the passage referred to, Mr. Dyer, who occupied the Chalet, was in the habit of allowing people to approach the Whitehouse outhouses by using a pathway that was admittedly within the Chalet boundaries. The plaintiff accordingly claimed that the defendant Dyer's successor-in-title was bound in law to allow her the same privilege. It is admitted by Dr. Tej Bahadur that the deed conveying the Whitehouse to the plaintiff does not contain an "express grant" of this right, nor does Dr. Tej Bahadur claim the user of the Chalet pathway upon the ground that it is strictly speaking a user of "necessity." The Case for the plaintiff as it has been argued in this Court is that her title deed contains an expression which amounts to an "implied grant" of the use of the Chalet pathway as an easement. THIS contention is based on the presence in the plaintiff's deed of conveyance of the word "roadways". In this deed the vendor Dyer assigned and transferred to the plaintiff all the estate called the Whitehouse with all its furniture, road ways, out-houses and compound, situated opposite the Delhi and London Bank". Now, could it be seriously argued that had the defendant read this passage before he bought the Chalet property he must have known that he was purchasing a property over which his neighbour, the plaintiff, had acquired a right of way to and from her out-houses. It will be observed that the word its "in the passage quoted clearly refers, so far as the furniture, the outhouses and the compound are concerned, to the furniture, out-houses and compound belonging to the Whitehouse. THIS is not disputed. It is contended, however, that the word "roadways" does not refer, as Mr. Nihal Chand suggests it does, to certain roadways which the first Court found within the Whitehouse boundaries, but to roadways, that is pathways, in the Chalet grounds. In other words, I am asked to construe the passage as though it read as follows "I transfer all the furniture, out- offices and compound belonging to the White-house, and I, also, transfer a right of way over the Chalet property for butchers, charcoal burners and night soil carriers going to the Whitehouse"; for strange as it may appear this is how the learned District Judge of Saharanpore has construed the clause. THIS strained and unnatural interpretation of the word "roadways", which divorces it from its context and from its relation to the word "its" which precedes it, is a construction which I am unable to place on the passage. If the vendor had intended to give and the vendee had stipulated to receive a right of way over the Chalet property such as is contended for, I cannot believe that Mr. Dyer's resources of language were so small that he could find no better way than this of expressing his intention; for it is admitted that the conveyance was drawn up by the vendor himself. The insertion of the word roadways "between the words" furniture and out-houses" would be an inapt method of expressing such an intention. In the case of Poldan V/s. Bastard (1863) L.R. 1 Q.B. 156 Chief Justice Earl said that in the case of implied easements, -that is easements which are used from time to time only such easements do not pass unless the owner "by appropriate language shows an intention that they should pass." Candour would compel any one to admit that if Mr. Dyer intended to convey the easement claimed he used anything but "appropriate language" in the deed of conveyance. The Subordinate Judge, who was living at Mussourie at the time and had every opportunity of seeing the property in question found that when the plaintiff bought the Whitehouse she could have made a way of approach to her outhouses and been independent of the favours of her neighbour. She chose instead to block up the passage mentioned in the earlier portion of this judgment by utilizing it for a bathroom, and, further, altered and extended what were servants out-houses into some sort of a cottage for the use of Europeans. Having regard to this conduct of the plaintiff the Subordinate Judge was possibly right in finding that she had deliberately and within the meaning of Section 43 of the Indian Easements Act "materially increased the burden on the servient heritage" and had, thereby, extinguished the easement, assuming for the sake of argument that it ever existed. Of this aspect of the case, however, the learned District Judge on appeal said nothing. Mr. Dyer, so long as he owned the Chalet property, might have been willing in order to oblige his vendee to put up with the inconvenience and. unpleasantness of having a miscellaneous assortment of individuals passing over his property; but one can quite understand that when it came to preparing the conveyance he would hesitate to transfer to the purchaser a right so objectionable that it would seriously depreciate the value of the Chalet property which he still retained, and would, undoubtedly, hamper him in any attempt that he might make to dispose of that property subsequently. The plaintiff was probably allowed, as an act of grace, to use the Chalet pathway while the Dyer family owned the Chalet; and as she was suffering no present inconvenience she would probably have little thought of what her position might be when some one else came into possession of the Chalet. I find, therefore, that the plaintiff has failed to prove that she is entitled to a right of way over any portion of the ground belonging to the Chalet property. I, therefore, allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellant will have his costs in all Courts.