Acquisition of easements by prescribed.

JAGADISAN, J. :- The suit out of which this Letters Patent Appeal arises was instituted by the respondent, who will be referred to as the plaintiff in this judgment for a declaration that he has a right of way across the pathway marked A B C D in the plan attached to the plaint and described in Schedule A to the plaint, and, for a permanent injunction restraining the appellants, who will be referred to as the defendants, from interfering with his rights and for a mandatory injunction to demolish the wall marked X Y in the said plan.

2. The learned Third Assistant City Civil Judge, who tried the suit held in favour of the plaintiff. On appeal by the defendants before the Principal Judge, City Civil Court, Madras, the judgment and decree of the trial Court were reversed and the suit was dismissed. There was a second appeal to this Court by the plaintiff which was heard by Kailasam, J. The learned Judge reversed the judgment and decree of the lower appellate Court and restored that of the trial Court. He, however, granted leave and hence this appeal has been preferred under Cl. 15 of the Letters Patent by the aggrieved defendants.

3. The dispute between the parties is as regards the right of way to the premises belonging to the plaintiff called "Rushkrum" from Mount Road, Madras across the premises known as Khaleel Mansions. Khaleel Mansions buildings abut the Mount Road. But the premises Rushkrum does not adjoin Mount Road but lies in the hinterland. On the west of the buildings a road called Woods Road runs north to south and on the past there is another road called Club House road, also running north to south. That there is some access to the premises Rushkrum from both these roads is not in dispute. But the question is whether the owner of said premises is entitled as of right to use the pathway A B C D from Mount Road and get access to his building.

Shortly put, the case of the plaintiff is that he has got a right of easement, either acquired by prescription or by an implied grant, and that the defendants have no right to interfere with his enjoyment of that right. The defendants dispute this position and they contend that the plaintiff has no right of easement, and that, even if he has such a right, it has become extinguished by reason of the provisions of a Central enactment called the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954.

4. We shall now set out briefly the title to the properties known as "Rushkrum" and "Khaleel Mansions". The entire property which was known as Nawabs Gardens originally belonged to the Princess of Arcot. She leased out the property under Ex. A.4 dated 20-11-1905 in favour of Mr. and Mrs. Thomas Robert Frost. The property so leased out was called Rushkrum and it bore the number 1/35 Mount Road, in the Corporation register. One Agha Mohamed "Khaleel Shirazee purchased this property from the Princess of Arcot on 30-8-1910 under the conveyance Ex. A.5 in the case. Khaleel Shirazee, after purchasing the property, made applications to the Corporation of Madras for reconstructing and remodelling the property. The premises now known as Khaleel Mansion was put up by him during the years 1923 and 1925.

So there was a common owner owning the property "Rushkrum" and the subsequently constructed property as Khaleel Mansions. Khaleel Shirazee effected a settlement of his properties in favour of his sons under Ed. A.2 dated 1-4-1935. The plaintiff, who is one of the sons of Khaleel Shirazee, obtained under this settlement the property Rushkrum lying behind Khaleel Mansions and which constituted old Nos. 1/35-A and 1/35-3. The present numbers are 35 /1 and 35/2. The-old numbers in respect of Khaleel Mansions were 1/35 and 1/35-C and its present number is 35 Khaleel Mansions was settled in favour of another son of Khaleel Shirazee, one Abbas Khaleel. Khaleel Mansions buildings were in two blocks and the passage A B C D lies centrally in between these blocks and that was the opening throu