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Calcutta High Court
Hera Lal Roy Chowdhury vs Lokenath Shaha And Ors. on 18 February, 1915
Equivalent citations: 29 Ind Cas 865
Bench: A Mookerjee, Richardson


JUDGMENT

1. This is an appeal by the plaintiff in a suit for enforcement of right of easement of a novel description. The case for the plaintiff is that he, along with some of the defendants, had erected these privies on the disputed property, that they had used the latrines for many years past and that on the 5th February 1908 the latrines were wrongfully demolished by the defendants who also raised an obstruction across the path which led to them. The claim was based on prescription, on implied grant and on necessity. The Subordinate Judge has dismissed the suit on the ground that an easement of this description is unknown to the law; he has also found that no grant can be implied in the circumstances of the case, that the alleged necessity has not been established, and that if the latrines were restored, they would constitute a nuisance to the residents of the neighbourhood. In our opinion, the view taken by the Subordinate Judge is manifestly right.

2. If, as is alleged by the plaintiff, he along with the defendants erected latrines on land which did not belong to them, and used thorn for a long series of years, no question of easement arises. An easement of this description is unknown to law, and it is well settled that the Court will not create a new species of easement [keeppelly. Bailey 2. Myl. and K. 517; Coop. temp. Brough, 298 : 39 E.R. 1042 : 39 R.R. 264.; Hill v. Tupper 2 H. and C. 121 : 32 L.J. Ex. 917 : 9 Jur. (N. s). 725 : 8 L.T. 792 : 11 W.R. 784 : 133 R.R. 605.; Laws of England, edited by Halsbury, Volume XI, Section 500] In the present case, the act of the plaintiff was in the nature of trespass and it might perhaps have been open to him to contend that he had acquired a good title to the disputed property by adverse possession. No such claim, however, has been set forth at any stage of the litigation, and he cannot now be permitted to make a case inconsistent with the title alleged in the plaint. In our opinion, the relief sought cannot possibly be granted.

3. An application has finally been made to the Court for leave to withdraw the suit so that the plaintiff may have a fresh chance of litigation. We are of opinion that this application should not be granted. The Subordinate Judge has pointed out that there are Municipal latrines in the neighbourhood, and it is eminently undesirable that the plaintiff should have further opportunity to press an entirely unfounded claim.

4. The result is that the decree of the Court below is affirmed and this appeal dismissed with costs.


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