Bombay High Court
Shamji Ghelabhai vs Jamnadas Meghaji on 28 July, 1930
JUDGMENT Baker, J.
1. The facts in this appeal are simple, but it raises a disputed point of law, and the arguments have taken some time as numerous decisions of the English Courts have been cited. The facts are that an owner of a large piece of land at Ghatkopar divided it into several plots for building purposes, and sold them to different persons reserving one plot for himself. The map shows that the property had only a restricted frontage to the public road, with the result that plots to the rear of the property would have no access to the road, and in order to meet this difficulty a clause was inserted in each sale-deed by which the purchaser bound himself to keep open a passage fifteen feet wide at the edge of his plot for the use of the other plot-holders. The result is that a carriage way fifteen feet wide runs through the centre of the property, and each owner can reach the road by it. The defendant owns two plots directly fronting on the main road, and the carriage way bisects his property. Defendants have erected posts and. gates at points A and B on the map reducing the width of the road to seven feet at A and ten feet at E. The present suit is brought by the owners of plot No. 5 for a declaration that they are entitled to use the full width of the road, fifteen feet, and for removal of the gates. Defendants reply that they are entitled to have the gates there, and there is no obstruction to the plaintiffs. The first Court held the plaintiff was entitled to have the use of the full width of the road, and that the gates constituted an obstruction as they stand at present, and ordered the defendants to leave a clear space of fifteen feet between the gate posts. On appeal by the defendants the Assistant Judge, Thana, varied the decree by directing the defendants to widen the distance between the gates to ten feet, which he considered to be sufficient for the passage of wheeled traffic. He treated the case as one of an easement of right of way. The plaintiffs make this second appeal.
2. There is no dispute as to the stipulations in the sale deed, which are common to the sale-deeds of all the owners of the various plots. These are translated in the judgment of the first Court.
3. The material portion runs as follows:-
You should build on this land after reserving the strip of land on the north measuring fifteen feet broad north to south and ninety feet east to west for the purpose of passage. It is agreed by consent of all persons that the whole passage fifteen feet wide north to south and 653 feet long east to west should be reserved for convenience of all the persons residing in the houses that will be built. Hence, you should not have any obstruction of any sort on this land reserved for passage. You should not obstruct the passage of my carts, horses, cattle and servants.
4. In the case of one of the plots, the sale was by the original owner Devraj Tokeraey to the defendants' father, and in the case of the other the plot was originally sold by Devraj to one Khimji, and sold by him to defendants' father two months later. But this makes no difference, as the purchase from Khimji was subject to the same conditions. The land occupied by the lane or passage is included in the sale-deeds, but it is admitted that each owner has purchased the plot subject to the condition that he would keep the passage of the aforesaid dimensions open for the convenience of the other residents. It seems to me surprising that in View of the clear provisions in the sale-deed which were meant for the benefit of all, any plot-holder should claim to have the right to narrow the width of the passage by erecting gates, and thereby cause obstruction to the other owners, but the learned Assistant Judge held that what is claimed in this suit is an easement of way over another's land by an agreement and not by preemption, "and" is governed by 8. 22 of the Indian Easements Act, which lays down that-
The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
He further relies on the English cases of Clifford v. Hoare (1874) L.R. 9 C.P. 362, Button v. Hamhoro (1860) 2 F. & F. 218, Pettey v. Parsons [1914] 2 Ch. 653, 662, and he quotes Goddard on Easements, 8th Ed a. p. 389, Gale on Easements, 10th Edn., pp. 497-408, and holds that under Section 22 in spite of the words in the sale-deeds the plaintiffs are bound to exercise their right of way over the defendants' land set apart for the passage in the mode which is least onerous to the defendants, and the latter can, without detriment to the plaintiffs, confine that way to a determinate part of the said fifteen feet wide land reserved for that purpose, and he fixes the width at ten feet. The learned Assistant Judge appears not to have noticed Section 20 of the Act which is on the same page as the section to which he refers. The learned advocate for the appellants contends that this is not a case of easement at all, but a sale of land burdened with a covenant. There is no grant by the defendant to the plaintiff The plaintiff got this right under an arrangement with the vendor. This is a case where before purchase each vendee entered into an agreement not to do a particular thing. The cases quoted by defendant are all cases where the owner allows something to be done on his land, and have no application to the facts of the present case. He relies on Tulk v. Moxhay (1848) 2 Phill. 774, Renal s v. Cowlishaw (1878) 9 Ch. D. 125, Doherty v. Allman (1878) 3 App. Gas. 709, 719, Craig v. Greer [1900] 2 Ch. 388, 399, Rogers v. Hosegoodu Elliston v. Reacher [1908] 2 Ch. 374, which he argues is on all fours with the present case, and Venkiah v, Krishnamoorthy (1913) I.L.R. 38 Mad. 141. He also relies on Dart on Vendors and Purchasers, p. 644 None of these eases, however, refer to a right of way. The covenant in Tulle v. Moxhay was to keep up the Leicester Square gardens. In Renals v, Cowlishaw there was a restriction on building on the demised property. The covenant in Doherty v. Allman was to keep the premises in good order while in Craig v. Greer no house was to be erected on the demised premises. In Rogers v. Hosegood only one house was to be erected on a plot, and Elliston v. Reacher deals with the erection of a hotel which was forbidden by the covenant. If, therefore, the present claim refers to an easement, as I think it does, then the fact that the claim to a right of way through the land of another rests on a mutual agreement between adjoining owners does not seem to me to make any difference. None of these cases will apply.
5. The learned counsel for the respondents has relied on the same authorities as those quoted by the lower Court, and argues that Clifford v. Hoare is on all fours with the present case. In Clifford v. Hoare there was a covenant to construct a forty feet wide carriage way through the estate, which was done, and the plaintiff claimed that the defendant by building a carriage porch extending a few feet into this way had obstructed him, and he was entitled to have it removed. The Court held that he was not so entitled. The case of Hutton v. Hamboro lays down that a private right of way over waste land or a line between two points is not necessarily a right over every part of the land, and the owner of the soil may enclose on each side of it leaving a convenient way. This does not seem to me to have any application to the facts of the present case, where the right of way is defined both as to dimensions and direction. It would apply if the covenant was only to allow the plaintiff to pass over the land of the defendant on his way to the main road, and if that were the terms of the grant the view of the lower appellate .Court would be perfectly sound. Similarly, the case of Pettey v. Parsons does not apply as only a right of way was given without specifying dimensions, and the case principally deals with the right of the defendant to erect a gate at the entrance to a private road over which the right of way was granted. There was no question of restricting the width of the road. It is true that in Clifford v. Hoare it was laid down that when the road is of a particular width and the easement can conveniently and reasonably be exercised within the leaser width, the servient owner is at liberty to restrict the extent of the user accordingly. The facts of that case were peculiar. The carriage way was forty feet wide, and it could not reasonably be contended that the narrowing of the road by a few feet, at one point or the erection of a carriage porch caused any obstruction to the plaintiff in driving along the road. The facts in the present case are entirely different. The original width of the road is only fifteen feet, and it has been narrowed at point A to seven feet, which is barely sufficient to permit the passage of a loaded cart and would certainly be insufficient for a motor lorry. The matter is, however, very simple, and in spite of the learning and ingenuity displayed in the arguments, Section 20 of the Indian Easements Act, which governs the case, has not been referred to. Section 22 of the Indian Easements Act, on which the lower appellate Court has relied, is in Chapter III of the Indian Easements Act, and Section 20 clearly lays down that the rules contained in this chapter are controlled by any? contract between the dominant and servient owner. It is not contended that the defendant is not ground by the covenant entered into between the original owner and his Father with regard to the one plot and his father's vendor and the original owner in the case of the other. Taking this to be the case of a grant, as defendant contends, the grant must be controlled Section 20 by the contract between the dominant and servient owners. The rule is that a grant must be strictly construed against the grantor. Peacock on Easements, 3rd Edn., p, 487, says:-
Where, however, there is nothing in the circumstances of the case, or in the situation of the parties, or in the situation of the land, to restrict the extent and mode of enjoyment of the right granted, the words of the deed or act granting the right should have their full operation.
There is really nothing in the circumstances of the present case to restrain the extent and nature of the enjoyment of the right granied,_ On the contrary, it is, in my opinion, eminently a case where, in view of the inconvenience caused to the holders of the back plots by any restriction in the width of the road, which being only fifteen feet, is barely sufficient for two carts or carriages to pass, full effect should be given to the grant I hold, therefore, that full effect should be given to the grant, and that defendant should be compelled to leave a passage fifteen feet wide through out this land as he has contracted to do. Consequently, the decree of the lower appellate Court will be set aside, and the decree of the first Court restored, with costs throughout.