SRI RAJAH VYRICHERLA NARAYANA GAJAPATIRAJU BAHADUR GARU Vs. SRI RAJAH VYRICHERLA NARAYANA GAJAPATIRAJU SAHEBA

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff for a declaration that she has a right of way over a road called the "Circular Road" leading to the premises known as the "Uplands House" in Waltair. The Rajah of Kuruppam, who was the owner of this property, died leaving the plaintiff, his daughter, the defendant and the Zamindar of Kuruppam, his sons. After his deatn the property was partitioned between the plaintiff, the defendant and his brother. The plaintiff got the block marked A in the plan annexed to the plaint. The property is a very extensive one. According to the plan, there is what is called a Circular Road leading from the Beach Road to the main building which, according to the evidence, was being used as a means of access to the building during the lifetime of the Rajah of Kurupipam. On the north, there is a Municipal Road and the suit property abuts that road. According to the evidence, there was a way leading from that road to this building which was used for the purpose of carrying materials, when the temple in the compound was built about the year 1902. This road, was not subsequently used except as servants entrance. It is, however, clear from the plan that so far as the plaintiff's portion is concerned, there is a mode of access to it from the northern side and it cannot be said that the right to use the road, known as the Circular Road, from the beach side is an easement of necessity in the sense that there could be no reasonable mode of access to the portion which fell to the share of the plaintiff except through the road now in dispute. The plaintiff's claim is that the road of which she claims easement is a continuous, well-formed, gravelled and metalled road leading from the Beach Road into the bungalow compound, partly through the defendant's and partly through her share, and that this road has always been the only road by which access was had from the Beach Road into the bungalow and was used and enjoyed for this purpose from the time of construction of the house by the owners of the "Uplands House", the predecessors-in-title and interest of the plaintiff and the defendant and the Zamindar of Kuruppam, and by them also until the date of partition in the year 1920.

(2.) In paragraph III (d) the plaintiff says: By virtue of the partition and even otherwise by implication of law and common sense, the plaintiff is entitled to the free and uninterrupted user of the said road by her and her representatives, servants, etc., in the same manner in which it was being enjoyed prior to the partition and the same is reasonable, necessary and essential for the proper enjoyment of the portion of the house and grounds which fell to the plaintiff's share as it was being enjoyed prior to the partition.

(3.) She says that the defendant obstructed her use of the road.