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Judgment
Venkatasubba Rao, J.—One Rangaswami Chetty sold to the 1st defendant under Ex. I, dated 26th June, 1917, a strip of land about 102
feet long and 21 feet wide having a frontage on a public road out of a large block of building vacant site of which he was the owner. The portion
purchased by the 1st defendant I shall call site No. A. The land exclusive of site No. A may, for the purposes of this appeal, be regarded as
consisting of two parts : (1) The portion south of and contiguous to what was sold to the 1st defendant opening also on the public road (this 1 shall
call site No. B); and (2) the bulk of the property at the back of the site No. A and the site No. B to which access from the road was over the said
site No. B (this I shall call site No. C).
Three days subsequent to the sale of site No. A Rangaswami Chetty sold the remainder of the block, sites Nos. B and C, to certain persons
from whom the present plaintiffs de-. rive title. On the site No. C the plaintiffs constructed a ginning factory. The 1st defendant, to start with, built a
small house facing the road on her own site, site No. A, leaving the rest of her land at the back of her house as an open space. She then built
another house on the vacant land and as it has no frontage on the road, she claimed a right of way over the site No. B.
The short question to be decided is, whether she is entitled to this right of way? The basis of her claim is the fact that in the sale deed executed in
her favour the southern boundary of the site conveyed to her is described to be "" pathway 18 feet in breadth which I am going to set apart."" The
lower Courts having negatived her right, she has preferred this second appeal. It is found that there were negotiations at the same time in regard to
the sale to the 1st defendant as well as to the plaintiff''s predecessors in title. Whether the 1st defendant has acquired the right she claims depends
entirely upon the construction of the conveyance in her favour. In regard to the surrounding circumstances, two facts seem, in my opinion, to be of
outstanding importance. (1) The land sold to the 1st defendant was about 102 to 105 feet in length and it was vacant building land. It was not to be
expected that the 1st defendant would only build one house upon it. If more than one house was to be built, the access to the house at the back of
the first house would naturally be over the site No. B. (2) The sites B and C were not laid out in building plots, but on the contrary they were
regarded as forming one block to be conveyed to one purchaser. That being so, there was no significance in describing site B as an intended
pathway unless it was a pathway intended also for the use of the 1st defendant.
These two circumstances strongly support the 1st defendant''s case. On a construction of the words relied on I am of the opinion that her
contention must prevail. In Espley v. Wilkes (1872) LR 7 Ex 298, Kelly, C. B., quotes with approval the following observations of Mansfield,
C.J., in Roberts v. Karr 1 Taunt 495 (127 ER 926):
If you (the lessor) have told me in your lease this piece of land abuts on the road, you cannot be allowed to say that the land on which it abuts is
not a road.
In the same case the observations of Lawrence, J. are also cited:
If a man buys a piece of ground described as abutting upon a road, does he not contemplate the right of coming out into the road through any part
of the premises ? "" The facts of Espley v. Wilkes (1872) LR 7 Ex 298. are these : The plaintiff demised by a lease under which the defendant
claimed "" All that plot of land bounded on the east and north by the newly made streets a plan whereof is indorsed on these presents. "" On the
indorsed plan the site of the new street was shown and was marked as "" new streets."" The lease contained covenants by the lessee to build two
houses on the land. The plaintiff afterwards granted to the plaintiff a lease of the land comprised in the site of the one of the proposed new streets
and the plaintiff inclosed the land so that the defendant was unable to reach the east side of his premises. In an action against the defendant for
pulling down this obstruction, it was held that under the defendant''s lease a right of way was granted along the site of the proposed new streets to
his premises. Kelly, C. B. observed that the grantor was estopped from denying that the strips of land, his property, were what he described them
to be, that is to say, "" streets "" which they could not be unless there is a way through and along them. In Roberts v. Karr 1 Taunt 495 : 127 ER
which is referred to in Espley v. Wilkes (1872) LR 7 Ex. 298 it was held that the grantor and those claiming from him were concluded from
preventing the grantee to come out into the road over the strip of land then in question.
In Furness Railway Company v. Cumberland Co-operative Guiding Society 52 LTR 144 the land which was conveyed was at the date of the
conveyance waste building land on the outskirts of a town. The plan showed C and M streets. The site of the intended streets was the property of
the vendor. It was held that the conveyance granted to the purchaser a right of way.
In Gogarty v. Horkins ILR (1906) 173 of the two plots demised to the lessee, plot A was described as bounded on the east by "" an intended
road to be 38 feet wide intersecting the said lot from lot B, "" and lot B was described as being bounded on the west "" by the said intended road 38
feet wide intersecting the said lot from lot A. "" Upon the map annexed to the lease the aforesaid intersecting passage was delineated as being 38
feet wide and was described as "" the proposed new road reserved by "" the lessor. It was held that from the words of the lease there was to be
implied a grant of an easement of way across the intersecting space. Harding v. Wilson 2 Bar & Cress 96 : 107 ER 319 is an old case which is
somewhat inconsistent with the rulings referred to above. But its authority has been doubted both in Furness Railway Company v. Cumberland
Co-operative Guilding Society 52 LTR 144. and Gogarty v. Horkins ILR (1906) 173. I have there-fore come to the conclusion that the 1st
defendant ought to succeed. The plaintiffs propose to construct a wall on both sides of the pathway. This they cannot do. They cannot have an
injunction restraining the 1st defendant from resisting the construction of this wall. In the plaint it is said that the 1st defendant has been tying her
cattle in the pathway and placing tubs and pots on the way and committing several acts of nuisance. It is clear that the 1st defendant cannot use the
pathway for these purposes. Subject to this reservation the plaintiff''s suit must fail.
The Second Appeal is allowed with costs throughout.