JUDGMENT
S.S. Subramani, J.
1. Second Appeal is by defendant in O.S. No. 8858 of 1972, on the file of City Civil Court, Madras. The appeal was once heard, and, as per judgment dated 27.2.1996,1 set aside the concurrent judgments of both the courts below, and the second appeal was allowed. On that day, there was no appearance for the second respondent, and I heard the appellant alone. Thereafter, C.M.P. No. 9628 of 1996 was filed to re-open the case, stating that on the date when the second appeal was heard, learned Counsel for the second respondent herein could not appear, and in fact, even notice of second appeal was not served on them (respondents).
2. Since I was convinced with the reasons stated in the affidavit filed insupport of that petition, I allowed the same and restored the second appeal to file. Thereafter, I heard the second appeal on merits. Learned Counsel on both sides were heard.
3. Even though the plaintiffs claim various reliefs in the plaint, in this second appeal, we are concerned only with the right of easement. Reliefs 3 and 4 in the plaint read thus:
(3) declaring that the plaintiffs are entitled to the right of pathway marked “ZYXT” in the Schedule;
and
(4) granting a permanent injunction, restraining the defendant, her agent, servants from interfering with the easementary right of pathway on the defendant’s property marked “ZYXT” in the Schedule ‘B’.
4. Door Nos. 19 and 20 belonged to the defendant’s father. It is seen that defendant’s mother filed a suit for maintenance against her husband, and, for recovering the amount due to her, door No. 19 was attached and sold in court-auction. The same was purchased by a stranger from whom plaintiffs have purchased in the year 1958. The sale deed is dated 21.11.1958. It is the case of plaintiffs that Door Nos. 19 and 20 are both situated on the eastern side of Pillayar Koil Street, and on the northern side, is Jones Road. Even though the plaintiffs have got access to their residential house from Pillayar Koil Street, for the scavengers, the access is through Jones Road. It is averred in the plaint that passage is being used by plaintiffs and their predecessors for more than 16 years. This was obstructed by defendant by putting up a construction, it is their case that the width of the passage is 4 ft., 67 inches. But, by putting up a construction, width of the same has now been reduced to 3 ft. 6 inches. Plaintiffs wanted the defendants to be restrained by an injunction from further reducing the width of the pathway and also to declare their right of easement in respect of the entire 4 ft., 6 inches of passage. It is their case that scavengers cannot be allowed to enter through the residential portion of the building, and the passage form the northern road was being used not only by the plaintiff, but even by the sub-tenants who were occupying portions of the building. It is an easement of necessity and, therefore, the reliefs sought for have to be granted.
5. As against the said contention, in the written statement, the only contention that is taken is, in paragraph 9. The defendant only says that the plaintiffs cannot claim a right of easement, since they purchased it only in the year 1958. Defendant admitted that all these properties belonged to a common owner. Since the plaintiffs purchased the property only in the year 1958, they cannot claim easementary right. It is further said that they also cannot claim easement of necessity. It is contended that since the plaintiffs have not exercised the said right for over the statutory period without any interruption and as a matter of right, they cannot claim it as an easement of necessity.
6. Regarding easement of necessity, trial court has considered the same in paragraph 15 of the judgment. Trial court ground that even though the plaintiffs allege that the width of the pathway is 4 feet 6 inches, there is no evidence regarding the actual width, to which plaintiffs are entitled. At the time when the Commissioner visited the property, the width of the pathway was only 3 ft., 6 inches. Regarding the passage having 3 ft., 6 inches, trial court found that even though under Ex.A-4, the sale deed in favour of plaintiffs, it is not stated anything about the right of easement, plaintiffs will have a right over the same if that right was being exercised by their predecessor also. The trial court further took note of the evidence of D.W.2 that the second plaintiff and her predecessors were using the pathway. The trial court further found that scavengers cannot be permitted to go through the residential portion of the building. Therefore, it is an easement of necessity, and granted an injunction restraining the defendant from causing any obstruction to the pathway having a width of 3 ft., 6 inches.
7. Aggrieved by the judgment, defendant took the matter in appeal. The lower appellate court considered this question in paragraph 13. The lower appellate court also found that the evidence adduced by plaintiffs regarding the user of the pathway for scavengers is reasonable, and the same could be believed. The lower appellate court also found that the tenants on the rear side were also using the said passage, and there is no reason to disbelieve that part of the evidence as well. Finally, the lower appellate court said that when Door No. 19 came in the hands of the third person like plaintiff, they would also be entitled to exercise the right of easement over the passage ZYXT as an easement of necessity. The lower appellate court further found taking into consideration the evidence that they have prescribed the right of easement for over the statutory period. The trial court judgment regarding the said point was confirmed. It is against the concurrent judgments, defendant has performed this second appeal.
8. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:
(1) In the absence of specific proof of usuage for over the statutory period, whether the courts below can grant the relief of easementary right in their house property?
(2) The failure to mention about the right of easement of pathway in a registered sale deed executed within 14 years’ time, will have any bearing in deciding the enjoyment for the statutory period, or not?
(3) In the absence of proof of title to the property for which the easementary right is claimed, can the Courts presume certain things and pass decree?
and
(4) whether the assertion of easementary right of pathway by way of necessity and prescription, requires proof on the part of the plaintiffs who claim it or on the part of the defendants.?
9. All the questions could be considered together.
10. In a decision reported in Smt. Narayani Devi v. Phool Chand and Anr.
, the court considered the entire question in this regard. The learned Judge expressed the view that a right of way for scavenging should not be treated on par with absolute necessity. It was held therein that if there is an alternate right of way, an easement of necessity is not usually granted. But, in the case of right of scavenging, the court will have to consider the normal way of life of the person, who claims it, and of persons belonging to his category. Learned Judge further went on and said that the Hindu Society does not allow scavengers to enter into residential portion of the building. It is their habit to provide a separate entrance or way, and that is an easement of necessity. In that case, it has been said thus in paragraphs 8 to 10:
Under Section 13 of the Easements Act, where a person transfers or bequeaths immovable property to another and an easement in other immoveable property of the transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to such casement and where an easement in the subject of the transfer is necessary for enjoying or immovable property of the transferor, the transferor, shall be entitled to such easement. In the present case, the strip of land was transferred to the defendants on May 16, 1966 by Sita Ram. The house, which was later purchased by the plaintiffs was then owned by Sita Ram and the use of the strip of land for cleaning the latrine of the house by sweepers ostensibly was necessary for the enjoyment of the house by Sita Ram. The strip of land was, therefore, open to enjoyment as a easement of necessity by the transferor, namely, Sita Ram on May, 27, 1966 when he sold the house to the plaintiff. Illustration (f) of Section 13 reads thus:
(f) A is the owner of a house and adjoining land the house has windows overlooking the land. A retaining the house, sells the land to B without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light and B cannot build on the land so as to obstruct such light.
This Illustration elucidates that it is permissible for the owner of a property, subsequently transferred, to enjoy a right which constitutes a burden upon the adjoining property transferred earlier.
The lower appellate court, it appears from a perusal of its judgment, was under an impression that before being entitled to claim an easement by way of necessity it must be established by the plaintiff that the claimed is one of absolute necessity in the sense that there should be no other manner of such enjoyment available in any circumstances whatsoever. This, however, is not the requirement of law. Section 13 of the Easements Act contemplates that the easement, which is claimed as an easement of necessity, can be claimed as the only possible mode of enjoyment of the right claimed having regard to the normal way of life of the person who claims to the normal way of life of the person who claims it and of persons belonging to his category. The lower appellate corut seems to have been impressed by the fact that it would be open to the plaintiff to get the latrine cleaned by permitting entry to the sweepers through the courtyard inside the house itself. The plaintiff is indisputably a Hindu lady and it is well known that Hindu are generally adverse to permitting entry to sweepers inside the house for the purpose of cleaning latrines of the kind used by the plaintiff, namely, service latrines.
11. In an earlier decision of the Rangoon High Court reported in Daw Cyan v. U. Maung Maung A.I.R. 1935 Rang. 127, also, it is said that no easement of necessity can be granted unless the easement is necessary for the enjoyment of the property. Sweepers passing through residential houses would give rise to such a state of inconvenience as to make the houses for all practical purposes uninhabitable for people of ordinary decency and cleanly habits. In that case, it was held that even if it is not a case of absolute necessity, taking into consideration the Indian habits and manners, such relief has to be granted. In that case, it was further held that ‘to compel the plaintiff to have his night-soil buckets carried out through the houses would destroy as residential dwellings the houses which were the properties sold by the original owner of the whole plot of land as dwelling houses and as such it was an easement of necessity.’
12. The argument that the right of way has not been mentioned in Ex.A-4 also may not be of much importance. If the right could be recognised as an easement, by transfer of immovable property, all the rights of the transferor are also transferred. That is clear from Section 8 of the Transfer of Property Act.
13. Both the courts below have taken into consideration the evidence on record, particularly, the evidence of D.W.2, to come to the conclusion that the plaintiffs and their predecessors were also making use of the said passage for scavenging purpose. It is further seen that the residential building of plaintiffs is facing Pillayar Koil Street, on the west, and the entire portion is covered by residential buildings. Therefore, permitting scavengers also to make use of that way as access to the residential buildings for scavenging purposes will destroy the use of the same as dwelling houses.
14. Taking into consideration the hardship that might be caused to the plaintiffs, and also taking into consideration the judgments of the courts below, I do not think, anything survives in this second appeal and the same is, therefore, dismissed, but, however, without any order as to costs.