Bandi Prosad Jaiswal vs Gangamoni Chaudhurani

Harries, C.J.—This is an appeal from a judgment and decree of Clough J., dated September 1, 1948, made in favour of the Plaintiff.

The case concerned certain property facing Cornwallis Street in the city of Calcutta. In the year 1896, the property, which included Nos. 225, 225/1, 226, 227, 228 and 229, Cornwallis Street, belonged to Umesh Chandra Banerji, Satyadhan Banerji and Haridas Basak. The Banerjis held an undivided 7 annas share in the property, whereas Haridas Basak held the remaining 9 annas share. The property, which comprised land and buildings, formed a narrow strip about 312 feet in length and about 38 feet in depth, having its frontage on Cornwallis Street. At the back or the western portion of the premises there was certain land between the western boundary wall and a lane or street known as Mechuabazar Lane or Street.

In or about the year 1897, the co-sharers, who owned this property, agreed to partition the same by metes and bounds and arbitrators were appointed for that purpose. On September 20, 1897, the arbitrators made an award, which was accepted by the parties. In due course, the award was filed in Court and a decree was made in terms of it.

By their award, the arbitrators divided this narrow strip of land with buildings upon it into ten plots, which they numbered serially 1 to 10 numbering from south to north. Plots 1, 4, 7 and 10 were each of them substantial in size; plots 2, 3, 5, 6, 8 and 9 were each of them mere narrow strips approximately 38 ft. in depth and plots 2, 6 and 8 were 1 ft. 9 in in width and plots 3, 5 and 9 were 2 ft. 3 in wide. Plots 2 and 3 were adjacent and lay between plots 1 and 4. Plots 5 and 6 were adjacent and lay between plots 4 and 7 and plots 8 and 9 being adjacent lay between plots 7 and 10. Each of these pairs of narrow plots together measured 4 ft. in width facing Cornwallis Street and 38 ft. in depth going back westward. By the award, it was provided that each pair of these narrow plots should serve as a passage for the convenient user of the larger plots which lay between them. The arbitrators allotted plots 1, 2, 6, 7 and 8 to the Banerjis and plots 3, 4, 5, 9 and 10 to Haridas Basak. They however, provided that the plots 2, 6 and 8 allotted to the Banerjis and plots 3, 5 and 9 allotted to Haridas Basak were to be used only in a certain manner, that is, as passages for the more convenient enjoyment of the properties on the north and south of them which had been severally allotted to the co-sharers.

The clause in the award relating to these passages was as follows:

The above plots 2, 6, 8 of the first party and plots 3, 5 and 9 of the second party, namely, plots 2 and 3 forming the first block, plots 5 and 6 forming the second block and plots 8 and 9 forming the third block (and each of these three blocks measuring four feet north to south by thirty-eight feet east to west and covering an area of three chhataks and seventeen square feet). All these three blocks are to be kept open and used as passages for ingress and egrees of the two parties and their and each of their tenants for discharge of rain water, for erecting scaffolding to build and repair brick structures and huts for light and ventilation for laying drain and water pipes and for other similar purposes.

The subject-matter of this case were plots 5 and 6 and plots 8 and 9. The Plaintiff is the successor-in-title to Haridas Basak and held plot 4 and plot 10 as well as the small strips, plots 5 and 9. The Defendants are the successors-in-interest of the Banerjis and they held plot 7 and the two narrow strips, plots 6 and 8.

Both the Plaintiffs and Defendants or their predecessors had developed the premises facing Cornwallis Street and the Defendants had also built premises or developed the existing premises on the land between the western boundary of the partitioned property and Mechuabazar Lane. Immediately behind plot No. 7, the Defendants had erected the premises known as 83, Mechuabazar Lane and had in fact connected the upper storey of these premises with the premises existing on plot 7. The Defendants had also acquired the plot lying between plot 4 and Mechuabazar Lane. This plot was numbered as 85, Mechuabazar Lane. The complaint of the Plaintiff was that the Defendants were misusing the narrow passages made up of plots 5 and 6 and plots 8 and 9. The Plaintiff complained that the Defendants had broken down the south west corner of the boundary wall of plot 7, with the result that a lane, immediately to the south of the western boundary of plots 5 and 6, was connected with the passage formed by the latter two plots. In short, the allegation was that by knocking down the walls on the western corner of plot 7 the Defendants had made a through way from Cornwallis Street into the blind lane which led into Mechuabazar Lane.

The Plaintiff further alleged that there had been serious misuse of plots 8 and 9, a staircase had been erected on plot 7 leading to the upper storey thereof and to the upper storey of 83, Machuabazar Lane, which lay to the west of the partitioned property. In this way the Defendants had converted the passage made up of plots 8 and 9 into a way to 83, Mechuabazar Lane, which was no part of the partitioned property.

Other acts of misuser were alleged against the Defendants, such as the building of shops facing the passage represented by plots 5 and 6 and leaving a mass of scrap iron in the passageway, thus making it difficult to use it as a way. It will be unnecesary to refer to the other allegations of misuser, because the appeal is now only concerned with the misuser of these two passages by making the southern passage a through way from Cornwallis Street to Mechuabazar Lane and making the northern passage into a way leading to premises known as 83, Mechuabazar Street, which formed no part of the partitioned property.

The learned Judge, upon the evidence, came to the conclusion that the Defendants had, by knocking down the corner walls on the south-western side of plot 7, made a through way from Cornwallis Street to their premises 85 and 83, Mechuabazar Lane and to Mechuabazar Lane itself. The learned Judge was also of opinion that the Defendants, by making the stair-way, to which I have referred, opening out of the passage-way consisting of plots 8 and 9, had made a through way from Cornwallis Street to the upper portion of the premises known as 83, Mechuabazar Lane. In the view of the learned Judge this was such excessive user of the rights given to the predecessors of the Defendants by the award that it must be inferred that by such excessive user they had abandoned their rights of passage as given to them in the original award. He, therefore, made a declaration that the Defendants no longer had any right to an easement over the Defendants'' land represented by plots 5 and 9, hut he held that the Plaintiff''s easement over plots 6 and 8 still subsisted. The learned Judge also held that the Plaintiff was the owner of the whole of the wall on the western boundary of plots 4 and 5 and he gave an injunction restraining the Defendants, their servants or agents from demolishing or interfering with any portion of this wall.

The Defendants being dissatisfied with this judgment have preferred the present appeal and Mr. Sanyal, who has argued the case very fully has confind his attack to one point, namely, that the learned Judge was wrong in holding that the Defendants had lost their rights over the Plaintiff''s portion of these two narrow passages by reason of any excessive user on their part. Mr. Sanyal has contended that, even if there was any excessive user, which he did not admit, such could never amount to an abandonment of their original rights.

Mr. Sanyal, in the first place, did not admit that there had been any excessive user of this right of passage by the Defendants, but it appears to me that the evidence on this question is overwhelming. The award makes it quite clear that the two strips made up of plots 5 and 6 and plots 8 and 9 were only to be used by the parties as a way and for convenience of the premises lying north and south of these two passages. Mr. Sanyal contended that the Defendants were entitled to use the plots allotted to them, namely, plots 6 and 8, as they liked provided that they did not interfere with the right of way given to the Plaintiff over these plots. It is, I think, clear that each of these strips were far too narrow to be used as a way or for any purpose which would add to the amenities of the properties lying either north or south of them. The only way the arbitrators could ensure a way broad enough was to amalgamate as it were these strips allotted to the respective parties. Strips 5 and 6 were amalgamated to form the southernmost passage-way in dispute and plots 8 and 9 were amalgamated to form the north passage in dispute. I think it is clear from the terms of the award that neither party could use their respective strips except as a way to the premises and for certain other purposes connected with user of the premises, which are mentioned in para. 4 of the award. In any event, it would be practically impossible for either party to use these narrow strips in any way other than as a way without interfering with the right of the other party over such part of the way. I think it is clear from the award that, although these two passages were divided from north to south and a portion of each was allotted to the parties, nevertheless the intention is clear that the whole strip made up of both narrow strips were only intended to be used by both parties for purposes mentioned in para. 4 of the award. Mr. Sanyal contended that his client was entitled to connect plot with the blind lane leading into Mechuabazar Street and to connect plot 8 with the premises known as 83, Mechuabazar Lane.

In my view, the Defendants had no such right, because, as I have said, on a true construction of the award, it is clear that neither party could use these passages for any purpose other than that mentioned in para. 4 of the award; connecting plot 6 with the blind lane and Mechuabazar Lane would permit the user of that passage in an imauthorised manner and so would connecting plot 8 with 83, Mechuabazar Lane.

It is clear that when the western corner or south-western corner of plot 7 was knocked down it was done to connect the southern passage-way with the blind lane and to give all persons a through way from Cornwallis Street to 85 and 83, Mechuabazar Lane and to Mechuabazar Lane itself. It is also clear that the opening and staircase on the northern side of plot 7 was also constructed with a view to giving the residents of 83, Mechuabazar Lane a direct route to Cornwallis Street over the passage consisting of plots 8 and 9. It seems to me that this user of the passages by occupiers of the premises on the western side of the partitioned premises was user never contemplated by the award, an user which is not permissible by the award. The Defendants had, in my view, no right whatsoever to connect the southern passage with the blind lane and to connect the northern passage with the upper storey of 83, Mechuabazar Lane. This was a misuser of the rights of the Defendants in these two passages and a very gross misuser.

The learned Judge, as I have said, was of opinion that the user was so excessive that he was bound to infer from it an abandonment of the Defendants'' right of easement over plots Nos. 5 and 9. In my view, the Defendants were guilty of excessive user, but no abandonment of their rights can be inferred from such user.

Mr. Isaacs in support of the view of the learned Judge relied upon an observation in Halsbury''s Laws of England, Hailsham Edition, Vol. 11, at p. 316, which is as follows:

An intention to abandon an easement may be inferred from alterations made to the dominant tenement which render the continued user of the easement impossible or unnecessary. Thus, if the easement be attached to the particular user of a building and the owner pulls down or destroys the building with the intention of relinquishing the easement, he cannot afterwards change his mind and claim the easement. If it can be inferred from his acts that he has abandoned his right to the benefit of the easement the easement may be extinguished, even though the non-user be for a much less period than twenty years.

Mr. Isaacs stressed the latter portion of this observation and asked us to infer from the acts complained of that the Defendants had abandoned their right to the benefit of the easement given to them by the award over the Plaintiffs portion of the two passages.

In my view, however, abandonment of an original easement cannot be inferred from an excessive user unless the nature of such excessive user is such that the original user can no longer be said to be possible. In short, the illegitimate user must render any legitimate user out of the question and therefore, it can be inferred that the person guilty of the illegitimate user has abandoned any right to legitimate user. This, I think, is clear from decisions of the English Courts. In Tapling v. Jones (1865) 11 H.L.C. 290 : 11 E.R. 1344 it was held that the right to ancient lights depended on statute and so did not require and ought not to be rested on, any presumption or fiction of a license. Therefore, it was said as the statute declared it to be absolute and indefeasible it could not be lost by a temporary intermission not amounting to abandonment, nor could it be forfeited by any attempt to extend the right. The opening of a new window being in itself an innocent act could not, therefore, destroy existing rights in one party, or give new, or revive old rights in another. Their Lordship considered two earlier cases, namely, Renshaw v. Bean (1852) 18 Q.B. 112 : 118 E.R. 42 and Hutchinson v. Copestake (1861) 9 C.B. (N.S.) 863 : 142 E.R. 340. In those cases it had been held that, where an owner who was entitled to a right of light, enlarged the window through which he was entitled to such light and thus made it impossible for the owner of the servient tenement to obstruct the enlarged portions the owner of the dominant tenement must be deemed to have abandoned his original right to light. Their Lordships in the House of Lords were of opinion that where the owner of a dominant tenement enlarges a window through which he has a right of light or constructs additional windows he does not thereby abandon his right to light through the original window. The opening of new windows or the increasing in size of the original window may be restrained, but the owner of the dominant tenement cannot be said to have abandoned his original right.

A similar view was taken by the Court of appeal in England in a later case, which is very similar to the case now before us. In Harris v. Flower (1904) 74 L.J. (Ch.) 127, C.A., the Court of appeal held that the grantee of a right of way is only entitled to use bona fide for purposes of the dominant tenement and the owner of the servient tenement is entitled to relief if the acts of the grantee of the right of way necessarily involves its use for the purposes of buildings upon other land to which the right of way is not appurtenant, thereby increasing the area of the dominant tenement and consequently the burden of the servient tenement.

The facts were that the Defendant having a right of way over the Plaintiff''s land to certain land coloured pink on a plan and being also the owner of certain adjoining land coloured white, had by his own acts completely landlocked the white land so that the only access thereto was now over the pink land and had built a factory partly on the pink and partly on the white land. The factory was all one building and a substantial part of it was on the pink land. The only access to it from the highway by means of the right of way. It was held (affirming Swinfen Eady J.) that the acts of the Defendant did not amount to an abandonment or extinction of the right of way; but (reversing Swinfen Eady J.) that the proposed user for the purposes of the part of the building erected on the white land was in excess of the grant. This case of Harris v. Flower (supra) quite clear in the first place that the user of this way by the Defendants was an excessive and unauthorised user. Mr. Sanyal had contended that, as the award allowed the parties to improve their plots, the erection of a building known as 83, Mechuabazar Lane and connecting it with existing buildings on plot 7 was only an improvement of plot 7 and therefore, the passages could be used for the premises so improved. It seems to me clear from the case of Harris v. Flower that the building of the premises known as 83, Mechuabazar Lane could never be regarded as an improvement of the dominant tenement so as to give the inhabitants of 83, Mechuabazar Lane a right to pass over these passages. However, it is clear that by such misuser, it cannot be said that the Defendants abandoned their original rights and that being so, I must hold that the view of the learned Judge on this question of abandonment is clearly erroneous.

Mr. Isaacs on behalf of the Plaintiff Respondent sought to support the view of the learned Judge by relying upon the case of Milner''s Safe Co., Ltd. v. Great Northern and City Railway Co., (1907) 1 Ch. 208. In that case the dominant tenement was originally a house which had been pulled down and a railway station was erected on the site. The owner of the dominant tenement claimed to use a way which had originally been a way to the house. The claim failed and it was held that the dominant tenement had been so altered that the dominant owners could not help exceeding their right if they used it at all and the good user not being severable from an excess user their right of way was at least suspended if not altogether abandoned.

It appears to me that Milner''s case is no authority to support the conclusion of the learned Judge in this case. In Milner''s case there was a right of way to a dominant tenement, namely, a house. The dominant tenement was demolished and in place of it was built a railway station. The user of the way to a railway station would be a gross abuse and an excessive user of a right of way to private premises and the Courts were of opinion that by demolishing a house and erecting a railway station the owner of the dominant tenement either abandoned his original right or allowed it to be suspended. In the present case, however, the Defendants have not altered the nature of their premises existing on plot 7. They have improved the premises, but they were entitled so to do under the award and it appears to me that even if they have subjected these two passages to excessive user by reason of throwing them open to premises west of plot 7, nevertheless it cannot be held that they have abandoned their easement granted to them by the award. Further, it cannot, I think, be urged that excessive user of the passages as ways could involve abandonment of the Defendants'' other rights over these passages, such as drainage, etc., which are mentioned in para. 4 of the award. No inference of the abandonment of these latter rights could ever be inferred from excessive user of the passages as ways.

As the learned Judge had come to the conclusion that the Defendants had, by their acts, abandoned their rights over this passage, though the rights of the Plaintiff remained unaffected, he did not give the Plaintiff any further relief. As we hold that the Defendants had not abandoned their rights, it appears to me that we must give the Plaintiff relief to prevent this excessive user which we hold to be wholly unauthorised. I think the Plaintiff is clearly entitled to a declaration that the Defendants and their tenants are not entitled to use the common passage made up of plots 5 and 6 and plots 8 and 9 as a means of access to and from any place beyond the western boundary wall of the partitioned premises which is shown on the plan annexed to the award. The Plaintiff, I think, is also entitled to an injunction restraining the Defendants, their servants or agents from using or permitting any of their tenants from using either of the said common passages otherwise than in accordance with the declaration made above.

Mr. Sanyal contended that we should not grant this declaration or give an injunction because neither was claimed in that form. A large number of reliefs were claimed and I think it is clear that what the Plaintiff wanted was a finding by the Court that the Defendants'' user was excessive and some order confining the Defendants'' user to that contemplated in the award. The findings of the learned Judge, however, went rather beyond what the Plaintiff wanted, but I think we can make the declaration and injunction which I have suggested because that gives effect to what the Plaintiff really claimed.

Mr. Isaacs on behalf of the Plaintiff also asked us to give the Plaintiff a mandatory injunction compelling the Defendants to rebuild the walls in the south-west corner of plot 7, which had been pulled down to make a throughway between the southernmost passage and the blind lane leading to Mechuabazar Street. He also asked us to give a mandatory injunction compelling the Defendants to rebuild the wall which originally stood on the western end of plots 8 and 9.

The Plaintiff never asked for these mandatory injunctions in the plaint and were not granted them by the learned Judge and it appears to me that without filing a cross-objection or a cross-appeal the Plaintiff cannot ask for these injunctions. In asking for these two mandatory injunctions the Plaintiffs are not seeking to support the decree of the Court below but are seeking to vary it. The matter would have been bad enough if a claim had been originally made to these injunctions, but as I have said no such claim was made and it is now being made for the first time. Mr. Sanyal has contended that we cannot, in the absence of a cross-objection, accede to the Plaintiff''s contention and with that view I agree. The Plaintiff is seeking to vary the decree in his favour and that he cannot do without filing an appeal or filing a cross-objection.

Further, it seems clear that if the wall at the western end of the passage-way made up of plots 8 and 9 has been broken down by the Defendants, it was only broken down some years after this suit was filed. No application was made to amend the plaint and as I have said the learned Judge was never asked to consider the matter and make an injunction if he thought fit. That being so, we cannot accede to the contention of Mr. Isaacs that the decree should also provide for mandatory injunction compelling the Defendants to rebuild the walls at the south-west corner of plot No. 7 and on the western end of plots 8 and 9.

In the result, therefore, this appeal is allowed to this extent and this extent only that the declaration given by the learned Judge that the Defendants have lost their rights of user over plots 5 and 9 is set aside. In place of that declaration, however, we grant the declaration which I have already set out and the injunction, the terms of which I have given in support of it. To that extent and that extent only the decree of the trial Court will be varied. In the circumstances, I would make no order as to costs of this appeal.

Sinha, J.

I agree.