( 1 ) THIS appeal by the defendants raises a short but interesting question as to the scope of the right of passage reserved to the plaintiffs under the agreement Ext. P1 dated 6th June, 1961.

( 2 ) UNDER the agreement entered into between the plaintiffs 1 to 3 and defendant-1 with some others, a pathway of 7 feet wide was exclusively reserved for the passage of ' men and cattle also' 'jama Januviru saha'. The pathway is an access to the plaintiffs' house from the near by public road. The pathway wag also meant for the flow of rain water.

( 3 ) WHEN the plaintiffs starts takingcarts and other vehicles, the defendants objected by stating that 'the passage was meant only for cattle and men and not for carts or cars. The defendants also removed one of the stone slabs over the drain causing inconvenience to the plaintiffs. The plaintiffs therefore brought a suit for permanent injunction to restrain the defendants from obstructing their right of way to vehicular traffic and also mandatory injunction to restore the slabs. The trial Court decreed the suit. The appellate Court affirmed the decree with a slight modification. Both the Courts have proceeded on the assumption that, the words " Jana Januvaru Saha" mean in addition to men and cattle, the vehicle also, as the word "saha" means "also". Hence, the defendants have appealed to this Court.

( 4 ) AT the outset, I may point out that the decision in the case does net depend much on the scope of the words "jana janavaru Saha". It turns primarily on the scope of the agreement and the purpose for which the passage was reserved. The first term in the agreement provides) that the passage was to be used* "by men and cattle" of both the parties without obstruction from the other party. The 2nd term provides that the parties should not alter or damage the path and make it unclean while using the same. The next term relates to the flow of water through a sluice to be kept by defendant-1 in the 'pagara' to be constructed by her. Defendant -1 was allowed to divert water freely to the passage The last term provides that both the parties have no other right except those mentioned in the agreement. It is clear from these terms that the parties reserved 7 feel wide passage for their common use and their cattle and also to allow the rain water. It was intended to be an access from the house to the public road. The plaintiffs have no other access to public road.

( 5 ) RELYING on these terms', it was contended for the defendants that the passage was intended to be a footway and not a driftway and it did not, confer a right on :the parties to trarisport burdens. The case of the plaintiffs, on the other hand, was that there was no warrant for such restriction asl the right of way includes every right to take carts and other vehicles in the absence of any such restriction imposed in the agreement.

( 6 ) THE principles which should govern a case of this nature have been succinctly stated by Jessel, M. R. in Cannon v. Villars ( (1878) 8 Ch. D. 415, 421):" Prima facie the grant of a right of way is the grand of a right of way having regard to the nature of the road over which it is granted and the purpose for which it is intended to be used; and both those circumstances may be legitimately called in aid in determining whether it is a general right of way, or a right of way restricted to foot-passengers, or restricted to foot-passengers and horsemen or cattle, which is generally called a drift way, or a general right of way for carts, horses, carriages' and everything else. "the learned Judge has referred to some examples by way of illustration. He has observed at page 420 :" Where you find a road constructed so as to be fit for carriages and of the requisite width, leading up to a dwelling-house, and there is a grant of a right of way to that dwelling-house, it wuld be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user

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