also douosed to the defendant being Radha Kishen. Tne Hig i Court has
commented unfavorably uron their evidenoe, and at the best it is of a
description which in the Courts in India is regarded with mush distrust.
Four of the ulainud's witnesses, Rtm B larose Singh. Ntgeshar Parshad
Singh, Mihadeo Singh, and Sendeo Singh, deposed thao the defendant
bad a stamp on his arm ; two said on nis right arm. Tna defen laot and
Rukmani Se-vak wera called as withesses by the Courn. T iay both
denied that the defendant had any mark o i his arm, and the laiter said
that the memners of his family had sSimos on the left and rignt arms.
It is remaikvble that upon this the defendant was not required to show
his arms, especially as the Subordina e Ju ige appears from his julgrn-mt
to have txamined his annpi&s. Only one of tt^se witnasses, Sandeo
Singh, is among the nine relied upon before the H gh Court, wh ch may
account for no notice being taken there of tha evideuce of the maik. The
omission to have the arms examined weakens the appellant's case. Tae
defendant gave evidence of the death of Radha Kishen at Allahabad, which
A VII 113
15 All. 270 INDIAN DBOISIONS, NEW SBBIES [Vol.
1892 if satisfactorily proved would have been decisive. It is remarkable that
Dao. 10. none of the witnesses who were examined by the Deputy Collector were
called to prove the death.
PRIVY Their Lordships do not think it necessary to discuss this evidence.
COUNCIL Saving regard to the previous proceedings, they are of opinion that the
appellant has not satisfactorily proved that he was entitled to recover
15 A. 2B1 possession of the property and that his suit should be dismissed.
(P. C.) = They will humbly advise Her Majesty to affirm the decree of the
Sar. P.C.J. High Court, reversing the decree of the Subordinate Judge and 
178=17 Ind. dismissing the suit, and to dismiss this appeal. The appellant will pay
Jur. 161. the costs of it.
Solicitors for the appellant : Messrs. Ranken Ford, Ford, and
For the respondent : The Solicitor, India Office.
ISA 270 = 13 A.W.N. (1893) 151.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Aikman.
WUTZLER AND ANOTHER (Plaintiffs) v. SHARPB (Defendant)*
[27th June, 1693.)
Easement Right of wiy Ea<emem of necessity Act XVoj 1877, s. 26 Act IV of 1882,
8- E laments "annex* d" Act V of 18^2, ss. 2, 5, 13, 19-44 and 45 Viet ,
Chan 4 1 . s. fi Aot I ot 1H72, s i 14, II ustra'.ion (g) Presumption against plaintiff
frcm refits il to ptoduce title deeds.
Tho plaintiffs were owners of an hotel and the defendant of certain adjacent
property. Tbe two properties bad at one time been united, and at that time the
manager of the hotel on behalf cf tbe owner used to obtain water for the purposes
of the hotel from a certain spring by means of a road which ran over land wbioh
subsequently became the defendant's. There was another, but smaller and much
less oonvenisnt path from tbe hotel to the spring. The plaintiffs became owners
of their portion of the property in 1886, and tbe defendant of bis portion in 1888.
Tbe plaintiffs continued to use tbe above-mentionel road through tbe defendant's
property for the purpose of getting water from the hotel until 1889, when the
defendant refused to permit tbem any longer to use the road. Toe plaintiffs
accordingly sued tho defendant for a declaration of their right of w*y over the
said road ; but refused to put in evidence the deed under wbioh they became
owners of the hotel property.
Held upon these facts that the plaintiffs were not entitled to any right cf way
over tbe laud in question. Owing to tbe non-production by the plaintiffs of their
title deeds, it must be prtsum?d as against them that the evidence afforded
thereby w>uld be unfavourable to their claim, and no right of way in favour of
tbe plaintiffs could be shown to arise otherwise either as an easement of necessity
or a* n easement the intenHon to grant which might be inferred. Chartl
SvrwJt'ir v. Dok >uri Ch>md>r Thnlt^nr (1), considered. Miharani R"j o>p
Euir v. Sye.d Ab'd ffossm '<! ; K iy [27 1] v. Ox>ey '3) ; Poldv.n v B s a d 4j ;
W .rth ; ngtnn v Gimson i5>; Hinchdiffe v. Earl ol K>n* out 6) ; Morris v Edging-
ton (7) ; Ba>kshire v. Grutb \8) ', and Baylyy v. G W. ti. Co. (9), relerred to.
[P., 28 M. 495 <497)= 15 M.L.J. 25 ; R , 18 B, 616 "630) ; 16 O.P.L.R. 156 (160); 9
I id. G, 8.764 = 9 M.L.T 274=^MW.N. (1911) 274 (275) ; 17 lad. Cas. 966
(967)= b L J. 4.7 ; P.L R 1900 p. 177 ]
* Second Appeal No. 66 of 189 1 from a decree o( H. B. Punne't, E q., Offijiating
District Judge of Sabaranpur, dated the 1st of September 1H90, confirming a decree of
G. Steel, Esq., Subordinate Judge of Debra Dun, dated the lltb of February, 1890.
(1.80.956. (2) 7 I.A. 240.
(3) L.R 10 Q B. 360. (4) L.R. 1 Q.B. 156.
(5) 2 E. and E. 618 = 29 L.J.Q.B. 116. (6) 5 Bing. N. 0. 25.
(7l STaunton 24. (8) 18 Ch. D. 616. (9) 26 Oh. D. 434.
WDTZLEB V. SHARPS 18 All. 272
THE facts of this case are very fully stated in the judgment of the 1898
Court. JUNE 2Tr
Mr. C. Boss- Alston, for the appellants.
Babu Parbati Charan Ohatterji, for the respondent. APPEL-
EDGE, C.J., and AIRMAN, J. The suit out of which this second
appeal has arisen was brought by H. Wutzler and J. Guibert, who describe IS * 270=
themselves in their plaint as proprietors of the Charleville Hotel, Mussoorie. 13 I.W.H.
The defendant, who is appellant here, is described in the plaint as " Major (1893) 151.
Sharpe, owner of the Vicarage." The plaint was presented to the Court
of the Subordinate Judge of Dehra Dun on the 7th of October 1889.
Omitting the formal beading and the verification, the plaint was as
" Plaintiffs state as follows:
" 1. That plaintiffs and their predecessors-in-title have peaceably and
openly through their servants used the road marked 3.8. in annexed map,
as a road to the spring in Captain Lee's ground, for the purpose of fetching
water for the use of the Hotel, as of right and without interruption for
more than 20 years.
11 2. That the defendant closed the road from 19th to 22nd April last,
and from 27th September up to date, and denies that plaintiffs have a
right of way over it.
" 3 Plaintiffs pray for a declaration that they have a right of way
over the said road."
It is obvious from the wording of the plaint that it was framed
on s. 26 of Act No. XV of 1877 (The Indian Limitation Act.
1877). From the fact that the plaintiffs did not, under section 59
of the Code of Civil Procedure, produce any title-deed in Court
when the plaint was filed or enter any title-deed in any list added
 or annexed to the plaint, it is further obvious that the plaintiffs
did not sue upon any title-deed or intend to rely on any title-deed as
evidence in support of their claim. The plaint did not allege or claim any
right of way with ponies or mules.
Tbe defendant did not tender any written statement, nor did the
Subordinate Judge require, under 8. 112 of the Code of Civil Procedure,
any written statement from the defendant.
Tne Subordinate Judge proceeded under ss. 117, 118 and 119 of the
Code of Civil Procedure, and examined one of the plaintiffs and the
defendant, and it then appeared that the plaintiffs were claiming a way to
and fro over the defendant's land for their servants on foot and with ponies
and mules for the carriage of water from a spring known as Captain Lee's
Spring to the Gbarleville Hotel, and that they further claimed the way as
one of necessity. Tbe defendant entirely denied that the plaintiffs were
entitled to any right of way whatever over his land. The onus of proof
was upon the plaintiffs No amendment of the plaint was made. The
Subordinate Judge proceeded to try the suit on the basis of the more
extensive right of way which the plaintiff who was examined h;id in such
examination orally claimed. The defendant required the plaintiffs to
produce their title-deeds, but the plaintiffs refused to produce, and did
not produce any title-deed. The Subordinate Judge declined to order the
plaintiffs to produce any title-deed.
We think it necessary for a right understanding of the procedure in
the trial of the suit and of the findings of the Subordinate Judge to set out
15 All. 273
INDIAN DECISIONS, NEW SERIES
15 A. 270-
his judgment, That judgment, omhting the formal heading and the
signature of the Subordinate Judge, wta as follows :
" Messrs. Wutzler and Guibert, the proprietors of the Charlevilla
Hotel, Mus^oorie, claim a private right of way for tneir pikhal animals
over a piece of road (S.S. marked purple on ex-iibir, No 1, a man the
accuracy of which is admitted), running through r.he grounds of Major
Sharpe. Major Sharpe denies that tha plaintiffs have any right of way
 " After taking the statements of the parties, I framed the follow-
ing issue-* :
"i. Is Mr. Wutzler barred by any defect in his title to the Charlevilla
Hotel from bringing this suit ?
" 2. Has the proprietor of the Charlevilla enjoyed a right of way as
of right and without interruption over the disputed bit of road for 20
" 3. Has no right of way accrued as an easement by reason of the
Charleville property and the Happy Valley having been within the last
six years oue property ?
" 4. Must. Mr. Wutzler practically of necessity go this way to enjoy
the full right to get water from Captain Lee's Spring?
" It may be as well first to deaide what the facts of the case are.
" There seems to be no dispute as to the following facts The Char-
leville, Hapny Valley, Major Sharpe's, and other estates were originally all
owned by Mr. Hobson.
" The Mussoorie Bank got possession of them all in 1881.
" lu 1888 Major Sharpe got his part of the estate from the Bank by
purchase. Tbe bit of road runs through his estate.
" The defendant is much aggrieved at the action of the Mossooria
Municipality, which seems at first to have considered that Major Sharpe
was interfering with a public right of way an.i to have pr >mised
Mr. Wutzler (an offer subsequently withdrawn), when he complaioel co
the Board, to' pay half hia legal expenses in asserting the righ', but after-
wards to have discovered that the righr, was a private one. This, however,
seems to me to have no bearing whatever on the case. I have no
doubs whatever that the members of the Board who have been examin-
ed have honestly arrived at the opinion they hoH in the matter, and
they are not the men to dishonestly distort facts in any way. Wnat-
ever the Board may have done does not uffeot the private rights
existing between Mr. Wd'zleran.i Major Sharpe It is also clear that
another road down to the spring (a zigzig from B. on fcbe map
 Nos. I to X) has recently, in Januiry 1889, hen repaired by the
Municipality. I. have been over all the roa^s. Trie Charlevilla H itel is,
it seems, supplied with water from two spring-i, the one to which tbia
road goes down and one out beyond Herne Dale. Mr. Wu h z er and
Mr. Treherne, a former manager, state that neither of these springs in the
hot weather supplies (Considering that water is taken from them for many
other houses also) sufficient water by itself for the Hotel, the requirements
of which are large. This is not seriously challenge < by the other side,
which brings no evidence on the point, and Mr. Wutzler's evidence is
somewhat lot" course one can't say certainly) confirmed by wlmt I saw
when I inspected them. They seemed small spring* and the one behind
the General's is high up the hill. I have no doubt whatever that it is in
YII] WUTZLER V. SHARPE 15 All. 276
the hot weather, and even I should say all the year round, absolutely 1893
necessary for the H^.'el people to go down to Captain Lae's Spring to get JUNE 27.
sufficient water. There^ seem to be no other springs anywhere near. The
parties mer-tion rone. APPEL-
'' Down to this spring there are four roads. With one of these we LATE
have ijo.hii-g to do. Ir. runs behind Pleasure View and the Theatre at the QlVIL.
end of the Happy Valley through CUptio Murray's land. He strongly
asserts that, io is a private road, saying he made it, and no one challenges *8 *. 270=
bis s - a emesit. The other three roads are the one in disnute leading from 13 A.W.N.
a walnut, tree grove in the corner of the Happy Valley to Undercliff U893) 151.
Cottage, one running from the Deanery gate to Undercliff Cottage, and
tl e zitzag above refem d to. These three roads it has been agreed to call
A.'B. ann C resrec ively. Wuh regard to road B we need not consider
it, as Major Shan e says it runs though his prorerty. and he is as ready
to dispute Mr. Wutzler's right of way over it as he is his right over A.
The main dispute in this ease is whether the zigzag way is one
which can be used by Mr. Wutzler or not. There is evidence on
the one si'e to the effect that it is impossible for mules laden with
p tkhtils to get up it, while on the other band there is the evidence
of Captain Lee, who says be has seen mules laden with pakhals
 go up, and that of a bhishti, who says he has taken them up there,
wLile it is urged that th Municipality would not have repaired the road
nnles- animals could get ui>
" The only way to decide such a point was by an inspection of the
spot. I have wa'ktd up the road C; the ugh it has been repaired by the
Municipality, it is even now practically inaccessible. From the state of
it now, I am of opinion, that before it, was repaired it must have been
merely a ' pugdandi ' or foot-path, such as are common in the hills down
to springs and capable of beii g used only by men on foot. The money
spent, on it by the Municipality has, I think, been practically washed ; the
road must soon fall out of repair, and there does not appear to be any chance
of the Municipality repairing it again. Without going so far as to say that
a mule with very small pakhals might not struggle up, I without; the slight-
est hesitation say that it is practically imposible for Mr. Wu'zier to get
the la)ge quantify of water he wants up that bill. If I were living in the
Deanery at the top of the z'gzag and had no other way down to the st ring
and no other spring to go to, I should not send animals down them;
I should send bhishtis down. It would be cheaper, as the animals would
be k lied. Mr. Wutzler requires so much water, and to keep his hotel
goir g has to consult, ways and means so much, that it is out of the ques-
tion his getting all his water hy bhishtis. Io concluding my notice of the
facts of the case I can only draw attention to Cantaia Murray's evidence,
which is thoroughly trustworthy, as his land adjoins the spot in dispute,
and be has lived near there for over thirty years while bis bona fides is
" Having now considered the facfs, I proceed to take up the issues
" As Mr. Wutzler is shown to be in possession of the Charleville and
recently (i.e , since 1886) been in the habit of sending his pakhal animals
by the way in. dispute, it was incumbent on the defendant, who denied his
ownership (s. 90, Indian Evidence Act), to prove that Mr. Wutzler was
not the owner.
 "He accordingly called for Mr. Wu^zler's title-deeds.
Mr. Wutzler said he could get them, but would take his legal representa-
15 All. 277
INDIAN DECISIONS, NEW SERIES
ISA. 270 =
tive's advice. Mr. Melville on his behalf objected, a natural objection in this
country, where deeds are imperfectly drafted, and in Mussooree, in which
it is said you can find a legal flaw in the title-deeds of every house in the
place. He said he had not seen the deads, but he was not going to allege
that there had been any express grant of the right of way.
" Anant Narain said he did not want to contest Mr Wutzer's right
to the hotel, though he might be only the manager, but he wanted to
contest the right of way. For all he knew there might be a special clause
in the title-deeds, showing that this right of way was not granted.
"Now it has been held by the High Court in that in a case
like this, where reasonable objections exist on other grounds to the produc-
tion of documents and when the party wishing them to be produced has
no definite knowledge of what they contain, they may not be called -for
merely in the hope that somebbing favourable to the person calling for
them may be discovered. I therefore refused to insist on bheir production.
Mr. Webb has sworn be sold the Charleville to Messrs. Wutzler and
Guihert, and the other side have absolutely no evidence whatever that these
gentlemen are not the owners of the Gbaileville.
" On the first issue then I find that Mr. Wutzler is not shown to be
unable by any defect in his tible in the dominant tenement to bring this
" On the second issue I find for the defendant. Up to 1896 the two
tenements were united in the same ownership. Tne easement then can-
not be said to have existed as of right, and no easement has been acquired
'' The fourth issue I find in favour of the plaintiff. The necessity
seems to me to be clearly apparent, and it would amount to much more
than a mere inconvenience to Mr. Wutzler to have to send his mulea
down the zigzag. He would, I think, have to shut  up his hotel. As
the owner of the properties sold Mr. Wutzler the hotel, and I find that in
Mr. Hobson's time and during the time Mr. Treherne managed the Hotel
for the Bank, the pakhal ponies had always gone down by the way in
dispute, I find thao the grant of the easement is capable of being pre-
sumed by implication of law arising out of the severance of tenements,
although it must be taken that no mention of it was made in the title-
" In coming to this decision I have been much assisted by a ruling
brought to my notice by Mr. Melville that in Gharu Surnokar v. Dokouri
Chunder Thakoor (1). I have above stated that in this case I find an ease-
ment of necessity exists.
"Mr. Melville urges that, even if I did noi find that, still the principle
laid down in that case, that the right of way, though not absolutely
necessary to the enjoyment of the defendant's tenement, might be neces-
sary for its enjoyment in the state in which it was at the time of
severance and in this case if the easement were aoparent and continuous,
there would be a presumption that ic passed with the defendant's tenement,
In this I agree wuh him. See my remarks on the state of the road before
it was improved by the Municipalitv.
" It has been urged by Anant Narain that no claim of an easement
by necessity or by implied grant is claimed in the plaint, but a litigant in
this country cannot be bound too hard and fast by the pleadings. In this
case too the exact legalnature of the right only became apparent as the case
(1) 8 C. 956.
WUTZLER V. SHARPE
15 All. 279
progressed, and in tbe plaint I notice that paragraph 3 claims 'a right of
way' merely, not defining what sort of right of way.
" Tbe third issue I also decide in favour of the plaintiff.
"I find therefore that Messrs. Wutzler and Guibert have a private
right of way for their pakhal animals and bhishlis over road A, and I
order that Major Sharpe pay them their costs."
From the decree based upon that judgment the defendant appealed
to tbe Court of the District Judge. Tbe judgment of tbe  then
Officiating District Judge was, omitting merely formal parts, as follows :
" Plaintiffs and defendant in this case are now owners of different
portions of a property which was joint and united down to 1886, when
plaintiff and his partner bought tbe Charleville Hotel. Plaintiff now resides
in tbe Hotel and occupies it as manager, and be sues defendant for a
declaration of right of way for his mules loaded with pakhals (big leather
bags to hold water), to pass over a portion of defendant's property down
to and up from a well of water. Defendant denied the right of way. The
lower Court has found that; there was an easement of necessity and
decreed plaintiffs' claim, and this order is appealed here.
"Tbe first ground of appeal taken here wastbat plaintiffs could not
sue unless they produced the title-deeds to the property. Now an ease-
ment is, under s. 4 of the Easements Act, one which the owner or
occupier of the dominant tenement is entitled to enjoy. I am therefore of
opinion that plaintitf was entitled to sue without producing any title-
deeds since he was in possession of the Charleville Hotel, the more so as
no notice was duly served on him by law requiring him to produce those
" Secondly, it is urged that plaintiffs have not proved their right to
take water from Captain Lee's spring. But that has not been denied,
nor was any question put to Captain Lee on the subject, though he was a
witness in the case.
" We must come to the main point in the case, which is as to the
easement claimed being one of necessity, viz., in the words of the Calcutta
High Court in Charu Surnokar v. Dokouri Chunder Thakoor (l), whether
the easement is necessary for tbe enjoyment of the Charleville Hotel 'in
the state in which it was at the time of severance.' Now it is abundantly
evident from the evidence on the record that the Charleville Hotel requires
more water than it can get from the only other spring within a practicable
distance from it. Hence it is a necessity that it should  get water
from this spring. There are only two ways in which it can get to this
spring ; one is by tbe pathway in dispute, and the other is by a road
which is called the zipzag in the judgment of the lower Court and goes
from E. to N E. on the map.
" The evidence before the lower Court on this point produced entirely
by the defendant is somewhat conflicting, but the weight of that evidence
is certainly against the practicability of this road for mules laden with
pakhals. The lower Couro inspected the spot and has recorded its em-
phatic opinion on the point. I am therefore not inclined to go against
that opinion, backed up as it is by the weight of evidence. The learned
Counsel for the appellant has stated that his client knows nothing of any
local investigation, and it is a pity that notice was not given of that to
(1) 8 C. 956.
15 A. 270 =
15 All. 280
INDIAN DECISIONS, NEW SERIES
15 A. 270 =
the defendant. Afc the same time, since the investigation was a mere
inspection of the roads, 1 do not consider th.it notice was necessary. I
find therefore, upboldii;g the decision of the lower Court on the point,
that the ea>ern< nt in this case was one of necessity.
"Trie only oiher puinr raised in api eal was that the road stops short at
the Pavilion on tie n ap and is rot conlir ued to meet any other puhlic
road. I do not consider that this would afl< cr< the right of way. Plaintiff
may he stopped ar> any oth' r part of this rond to the path in dispute, but
that will rot affect his having ti e right of way over it
" O. e oU er point raised is that, the dtcision isagninst thec'a'm which
was one of right of way exercised for 20 years. It would have been
better had the plaint been amended, hut since the issues w re fiv-d so as
to try the n>Ti r 8 oi the case under s. 147, Civil Prniedura Code I do not
consider it necessary to return the pL-.int lor amendment. The question
was not argued fr r appellant, at d the right of way claimed in the latter
portion of the plaint is not spfcified.
" F >? thp above reasons I we uld dismiss this appeal with CO-^P."
 From the decree based upon that; judgment c f the Olfi"iating
District .Judge, this second ap. eal has b> en brought by the defendant,
who chal eoaes the correctness of the conclusions of law of the Courts
below, and in any event disputes the right of the plaintiffs to a decree on
a case not stated in their plaint and to a relief not included in the prayer
of the plaint.
Although the findings of fact of a Court m fi st anpeal must, when
there i- evidence on the record in suptort of them, be accetted as fii al
by a Court bearing an appeal from an at p- Date decree, yet the correct-
ness of the conclusion of law from the facts found can be considered
in second appeal.
The first observation to be made is that a right of way for the plain-