JUDGMENT

Beachcroft, J. - The litigation concerns a narrow strip of land about 3 inches wide, which runs between the backs of the houses of the plaintiff and defendant. There are windows of plaintiff's house overlooking this strip but it does not appear whether any door of his house, which has two road frontages besides, opens on to it.

2. The facts either admitted or found are that up to the year 1909 this strip was a drain. In that year the connected latrine system was introduced by the Corporation and from that time the drain began to silt up. In 1913 the defendent paved the strip with bricks, Subsequently he closed it at both ends.

3. The plaintiff brought this suit to have the obstruction removed alleging that the drain was a public drain, which had subsequently become a public passage, and asked for a declaration to that effect. In paragraph 7 of his plaint he set out the damage which he had suffered. He begins by asserting that he cannot enter on or pass over the land, and then sets out the special damage that he has been deprived of the only means of repairing the eastern wall of his premises as he is now unable to have scaffolding put on the strip of land for the purpose of repair and as a consequence his house is deteriorating in value.

4. In the alternative, in case the strip of land should be found to be the property of the defendant, he asked for a declaration that he had acquired as an easement the right of entering on the land and repairing his house by means of scaffolding erected on the land.

5. He also asked for a perpetual injunction restraining the defendant from obstructing the passage.

6. The Munsif gave a decree that the passage in dispute be declared to have been a public drain converted into a lane on which the plaintiff had a right to go for making necessary repair to his house by scaffolding, that the defendant had no right to obstruct him and that the plaintiff be further declared to have an easement of necessity. He directed the defendant to open a door in the newly erected wall and to keep it open and gave a permanent injunction restraining him from closing the passage and door.

7. This decree was not varied on appeal by the District Judge, but the learned Pleader for the respondent concedes that he cannot ask for it to be upheld in its entirety, and that the declaration that plaintiff has an easement of necessity must be expunged as also that portion which declares that the plaintiff has a right to erect scaffolding on the land.

8. The Munsif found that the land did not belong to the defendant, and this finding was upheld by the learned Judge who apparently came to the conclusion that it was Khas Mahal land.

9. As regards the question of easement, the Munsif considered that plaintiff had not established user for a sufficient period to give him the right claimed. Before the Appellate Court plaintiff did not rely on this right in view of the contention that the defendant had no title to the land.

10. As regards the public right of way, the learned Judge's findings are embodied in the following passages: "there can be no doubt that for very many years, at least since 1873, anybody who wished to pass by this land was able to do so, though as a rule it was only used by Mothers. But one witness proves that he went that way in order to repair his houses further north and another witness proves that when a boy he passed by this alley on his way to play in the field beyond.... I have no difficulty in holding that any member of the public who wished to do so could pass by this alloy between the years 1873 and 1913." As regards special damage the learned Judge said, that the plaintiff sustained special damage is obvious from the fact that his houses are bounded on the east by the obstructed land. It is idle for the defendant to say he is willing to allow the plaintiff to erect scaffolds when necessary, especially when it is found that the defendant is himself a trespasser."

11. A number of grounds have been urged in t