Phillips, J.

1. In this case there are two houses, Nos. 19 and 20, adjoining one another and apparently they both originally belonged to the same family. For many years past, and certainly for 20 years, the inhabitants of No. 20 have been using a privy situated in No. 19 and for that purpose have been enjoying the right of way over portions of No. 19. The plaintiff in this case originally brought a suit in 1917 for recovery of house No. 19, but that suit was dismissed. He has now brought the present suit for a declaration that he is absolutely entitled to the latrine marked C in the plan and to the use thereof, and, in alternative, as a right of easement. Although the plaintiffs suit to recover house No. 19 has been dismissed, yet, in his plaint, he persists in asserting his right to it inclusive of the latrine marked C, and he pleads in the alternative that he is entitled to the use of the latter as an easement. The learned City Civil Judge has found that this right has been established and has given a decree accordingly, and this decision is in accordance with a decision of this Court in Konda v. Ramasami [1915] 38 Mad.1. There it was held that the mere claim of the higher ri