Patkar, J.
1. In this case the plaintiffs brought a suit against the defandants for a declaration that the defendants had no right to admit scavengers into their private khadki land A for cleansing the privy marked in the plan, and also for an injunction restraining them from doing so.
2. The learned Subordinate Judge held that the khadki land below the plaintiffs' upper storey belonged exclusively to them and defendant No. 1 had only a right of way which did not include a right of admitting Municipal Bhangis into the khadki for cleaning the newly constructed privy of defendant No. 1, and that defendant No. 1 was not entitled to do be on the ground of necessity, and therefore held that the plaintiffs were entitled to the declaration and injunction.
3. On appeal, the learned First Class Subordinate Judge confirmed the finding as to the ownership of the khadki, but held that defendant No. 1 had a right to allow Bhangis to cleanse his newly constructed privy, that such right was included in the general right of way, and that defendant No. 1 was entitled to the casement on the ground, of necessity. He, therefore, reversed the decree of the lower Court and dismissed the plaintiffs' suit,
4. It appears that in 1803 there was a partition between the predecessors-in-title of the plaintiffs and the defendant by a reference to arbitration which resulted in an award, Under the award the right of way was reserved to the defendant, and a pit-privy situate near the premises belonging to the plaintiffs' predecessor-in-title was allotted to the share of Mahalaxmi, the vendor of the plaintiffs. It appears that from 1903 to 1920, Bailchha, the predecessor-in-title of the defendant, used the pit-privy. In the year 1920 Mahalaxmi conveyed the property to the plaintiffs. In the year 1922 Bai Ichha conveyed her right, title and interest in the property in suit to the defendant. The defendant after his purchase applied for permission to put up a basket privy and was allowed to do so according to the bye-laws of the Municipality which put an end to the system of pit-privies.
5. The first question, therefore, is whether under the award the defendant got a general right of way which included the right of allowing scavengers to use the passage provided by the award in order to cleanse the new privy standing in the defendant's house. It is contended on behalf of the appellants that where an easement of way is created by a deed, the mode of enjoyment must be ascertained from the terms of the document itself with reference to the circumstances existing at the date of the instrument, Itappears. however, from page 496 of Peacock's Law relating to Easements, 3rd Edition, that in the case of an easement of way created by a deed, the modern view appears to be that if the grant of the way is in general terms, it should receive a liberal construction consistently with the surrounding circumstances of the case, without restriction to the use that was made of the way at the time of the grant. At pages 500 and 501 reference is made to the cases of United Land Company v. Great Eastern Railway Company(1875) L.R. 10 Ch. App.586 Newcomen v. Coulson (1877) 5 Ch. D. 133 and Finch v. Great Western Railway Company (1879) 5 Exch. D. 254 In the case of United Land Company v. Great Eastern Railway Co. it was held as follows (p. 590):-
No doubt there are authorities that, from the description of the lands to which the right of way is annexed, and of the purposes for which it is granted, the Court may infer that the way was intended to be limited to those purposes. But if there is no limit to the grant, the way may be used for all purposes.
6. In Newcomen v. Coulson it was held that the allottees of inclosures were entitled to use a way set out in pursuance of an award under an Inclosure Act not only for agricultural purposes for, which the inclosures were being used at the time of the award, but for all purposes to which the laud might be applied thereafter. In Finch v. Great Western Railway Co. it was held that where the grant of a way is general in its terms, the grantee is not confined to the user which existed at the time of grant, but may use the way for all purposes.
7. The right of way granted under the award was a passage for ingress and egress with all its connected rights, and I think it was a grant of a general right of way. Where there is an express grant of a private right of way to a particular place to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for the purpose for which the access would be required at the time of the grant. See Finch v. Great Western Railway Co. (1879) 5 Exch. D. 254 and Purshot-tam v. Kasturbhai : (1930)32BOMLR1001
8. I may also in this connection refer to Goddard's Law of Easements, 8th Edition, page 402, where it is stated :-
If a right of way be granted for a particular purpose, the purpose is to be regarded in construing the grant, in order to ascertain the nature and extent of the easement, and the grantee may be entitled to vary his mode of enjoying the easement, and from time to time to avail himself of modern inventions, if, by so doing, he can more fully exercise and enjoy the object or carry out the purpose for which the easement was granted.
9. This seems to be consistent with Section 21 of the Indian Easements Act.
10. I think that the right of way which was granted by the award was a general right of way, and cannot be fettered by implied restrictions, and I agree with the view of the lower Court that it included the right of way for scavengers to cleanse the new privy in the house of the defendant.
11. It is contended on behalf of the respondent that even if there is no general right of way, he is entitled to the right to which he lays claim as an easement of necessity under Section 13, Clause (e), of the Indian Easements Act. That contention is supported by the decision in the case of Eaubai v. DamodarIshvardas I.L.R. (1891) Bom. 652 where it was held that a suitable enjoyment of a hut, when it was originally built, implied the use of a privy with the accompanying necessity for a way to sweepers to take away the night soil, and it was observed as follows (p. 559):-
Here the land was admittedly granted on Fazendari tenure for the express purpose of building a house to be inhabited by the grantee. The evidence shows that) there never has been a privy up to the present time, and that the occupants, as would appear to be the very general practice of occupants of houses in the courts in this locality, performed their natural functions in the court itself, or in the neigbouring courts ; and the immediate necessity for a privy has undoubtedly arisen from the plaintiffs desire to enlarge the house, and let it out: to tenants, which the Municipality refuses to allow, unless a privy is built.
12. I think that these remarks are quite apposite to the facts of the present case, and even apart from the inclusion of the right claimed by the defendant in the general right of way granted by the award, he is entitled to the right of way for sweepers as an easement of necessity. The case of Chintamani v. Ratanji : (1920)22BOMLR1131 cited on behalf of the appellants, can be distinguished on the ground that it turned upon the construction of the previous decree which secured the right for a particular purpose, and also on the ground that the easement claimed for a passage for the sweepers was not an easement of necessity as the sweepers had a different way to approach the old privy.
13. It is unnecessary, therefore, to discuss the question as to whether the defendants had a right to alter the mode of the use and enjoyment of the easement under Section 23 of the Indian Easements Act.
14. I think, therefore, that the view taken by the lower appellate Court is right and this appeal must be dismissed with costs.
Murphy, J.
1. The defendant has a house at Nadiad which opens on to a courtyard, the only ingress and egress being through a passage in the plaintiffs' building which belongs to the plaintiffs. The inhabitants of the courtyard and the defendant's building have a right of way through the passage for ordinary purposes, and the sanitary arrangements were till lately made by means of pit-privies, called datans. The Municipality has, however, now banned such arrangements in the case of new constructions, and the defendant has built a new privy which requires the attendance of Municipal sweepers periodically to remove night soil. The plaintiffs' grievance is that the sweepers pass through their khadki and that this is objectionable to them.
2. The original Court agreed in the view that the right of way did not include one for sweepers. The Court of first appeal, however, held that the passage of sweepers was necessary and reversed the decree of the first Court.
3. We have to deal with the point in second appeal and decide whether the circumstances allow of a right to the passage of sweepers of necessity. It appears that the two houses belonging to the parties were originally a single house which was divided by means of an award between Choksi Chhaganlal, a lunatic, represented by his wife and the plaintiffs' predecessors-in-intereet represented by their mother. As there was only one privy and the arbitrators thought its division, or common use would be troublesome, they awarded it to one party only, leaving the other without one, though Rs. 20 compensation was paid to Mahalaxmi. It is this division that has originated the trouble.
4. The award was in 1903. The parties to it who were deprived of the privy were relatives of those who got it, and probably continued to use the old one as heretofore, though it had been awarded to the other side only. But the present owners are strangers and not in the same position, and the defendant having no privy, had perforce to construct one on his own land in accordance with the existing Municipal regulations so as to enable him to inhabit the house at all,
5. The statute law on the point is contained in Sections 13(e) and 21 of the Indian Easements Act, and we have been referred to a number of rulings illustrating the application of these sections. The general rule is that the state of circumstances at the time of the grant determines the necessities of the case, and it was decided in Narayana Gajapatiraju v. Ratnayammaji I.L.R. (1929) Mad. 449 that one necessity is where there is no other way, in such cases as the present one. The nest adjacent case seems to be Chunder Goomar Mookerji v. Koylash Chunder Sett I.L.R. 7 (1881) Ca1. 665 where Wilson J. said (p. 674):-' It appears to me, that a right to use a passage, enjoyed as incident to a house, must in general include a right to use it for all ordinary household purposes, for the passage of mehters among the rest.' The case of Desai Bhaoorai v. Desai Chunilal I.L.R. (1899) Bom. 188 : 1 Bom. L.R. 658 which was also quoted, was one of land, ordinarily used for agriculture, having been converted into a timber-yard with the consequence that the passage through the plaintiff's land was used for a totally different purpose, and can, I think, on this ground be distinguished from the one with which we have to deal.
6. Mr. Thakor has relied especially on the case of Chintamani v. Ratanji : (1920)22BOMLR1131 , from the point of view there taken that if at the time a general right was secured, the particular right was not a part of it, the particular right cannot be included. But in that case, which is also of a privy, there had been an access to the original privy, and it was a right of access to a newly constructed one which was in question. The case of Esubai v. Damodar Ishvardas I.L.R. (1891) Bom. 553 which is more nearly parallel to this one, has been distinguished on the ground that this is not an easement of necessity, whereas that one was. But what is a necessity is really a question depending on the circumstances of each case.
7. Here the house was divided, and the single privy which it contained went to the other side It seems to me that it was implied by this arrangement that some system of allowing sweepers into the house for cleaning a new privy was to be followed as appears from the nature of the award in question. Moreover, though it may be true that a privy to each house is not necessary everywhere, for some houses in villages and towns do not have independent privies, in the present state of sanitary facilities, and in towns such as Nadiad, it seems to me that we cannot say that it is not necessary to have a privy in each house and that its inhabitants must go elsewhere. This being so, and the Municipal regulations requiring a privy which needs the attendance ofsweepers. it seems to me that the defendant has made out his case, and the judgment of the first appeal Court is correct and this appeal should be dismissed with costs.