JUDGMENT Pathak, J. - The defendants are the appellants in this appeal. The parties to this litigation own contiguous shops in the town of the Ghaziabad. The plaintiff's shop is situate towards the north of the defendant's shop. One part of the defendants' shop consists of a thatched roof which is separated from the plaintiff's shop by an intervening wall marked 'AA' in the plan: attached to the plaint. At this stage, it is necessary to mention that there was once before litigation between the parties in which the defendants to the present suit figured as plaintiffs and the plaintiff to the present suit figured as defendant. In that litigation it was decided that the wall 'AA' was owned by the defendants to the present suit who had a right to pass through the door in that wall on to the land belonging to the plaintiff of the present suit and thence from over the staircase of the plaintiff in order to reach the roof of the defendants' shop. The width of this passage was declared to be two feet nine inches. 2. It appears that prior to the institution of the suit, the defendants expressed an intention to construct a second storey over their shop and to build a yucca verandah in place of the thatched roof. The case of the plaintiff, the respondent to the present appeal, was that the wall 'AA' was exclusively owned by him and in any event, was the joint property of the parties. His case further was that the door in the wall 'AA' had been newly opened by the defendants and the latter have had no right of easement of way through the door and the plaintiff's staircase and that, in any event, the user by the defendants of the passage for the purposes of the second storey in the shop belonging to the defendants would result in an increase of burden on the servient tenement. There was one more plea in the averments of the plaintiff which was concerned with the right of flow of water from the plaintiff's roof over the defendants' roof, but it is not necessary to discuss that matter for the purposes of this appeal. Upon these allegations, the plaintiff prayed for a permanent injunction restraining the defendants from making any alteration in the wall 'AA' and from interfering with the plaintiff's possession over it. Upon these allegations, the plaintiff prayed for a permanent injunction restraining the defendants from making any alteration in the wall 'AA' and from interfering with the plaintiff's possession over it. He also claimed a permanent injunction restraining the defendants from creating any right of way through the plaintiff's shop and staircase into the second storey of the defendants and from obstructing flow of the water from the plaintiff's roof. 3. In defence, the defendants contended that they were the owners of the wall 'AA' and that the door in that wall was old. The defendants further stated that they had a right of passage over the land belonging to the plaintiff through the plaintiff's shop and staircase and that this right had been determined in the previous suit mentioned above. The defendants denied that by an addition of the second storey over their shop any additional burden would be cast upon the servient tenement. 4. The Court of first instance came to the conclusion that the defendants were the exclusive owners of the wall 'AA' and that the door in question was old. It held that the defendants had acquired, by prescription, an easement of right of way through the plaintiff's shop and staircase over a width of two feet nine inches and that the proposed constructions in the second storey of the defendant's shop would not result in an increase of burden on the servient tenement. In the result, the trial Court dismissed the suit. From this decree, the plaintiff appealed. 5. The lower appellate Court confirmed the findings of the Court of first instance on all the points except one. This point related to the question as to whether by the proposed constructions in the second storey of the defendant's house there would be an increase in the burden of the easement on the plaintiff's property. Upon this point, the lower appellate Court took the view that the contemplated constructions would result in an increase of burden on the servient tenement and granted a decree for injunction in favour of the plaintiff in the following terms: A decree for injunction restraining the defendants from throwing any additional burden over the servient tenement and from enlarging the use to which the passage through the plaintiff's shop and staircase as enunciated in previous suit No. 1582 of 1927 of the Court of the Munsif of Ghaziabad was subjected. 6. 6. Aggrieved by this decree, the defendants have come up in appeal to this Court. 7. Two questions are raised in this appeal. The first is whether the defendants had an unlimited right to the user of the passage through the plaintiff's shop and staircase and if not, what was the extent of that right. The second question, the solution of which depends, to a very great extent, upon the answer to the first question, is whether the proposed changes in the dominant tenement would involve an increase in the burden of servient tenement. Both these questions are essentially questions of fact and it is not open to me to entertain them in second appeal unless the findings arrived at by the lower appellate Court on these questions are vitiated by any error of law. Upon both the questions, the lower appellate Court; in a careful judgment has held adversely to the plaintiff. In order to examine whether any error of law has been committed by the lower appellate Court in reaching its conclusions, it is necessary to state the law upon the point. But before I do so I pause to state in a little detail the conclusions of fact reached by the lower appellate-Court. They are as follows : 8. The roof of the defendants' shop is an open roof and the only construction on that roof has been a privy which has been in the use of the tenants of the shop. The proposed buildings in the second storey are intended to be let out for residential purposes to tenants. The user of the passage has been occasional, namely, at the time when any person occupying the defendants' shop as a tenant had occasion to use the privy or the open roof for sleeping purposes in summer. The user of the passage by the defendants after the construction of the second storey in their shop would be at variance with the original object of the easement and would amount to an extension of the right of easement beyond the purpose for which it was acquired, with the result that there would a consequent increase in the burden on the servient tenement. 9 There is no dispute about the nature of the easement in this case and there can be no question that the defendants acquired the easement by prescription in accordance with S. 15, Easements Act. 9 There is no dispute about the nature of the easement in this case and there can be no question that the defendants acquired the easement by prescription in accordance with S. 15, Easements Act. The extent of the right of easement has to be determined in accordance with S. 28 of that Act. That section, so far as it is relevant, runs thus : An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed. The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose ... (a) right of way of anyone kind does not include a right of way of any other kind. 10. In the case of a right of easement acquired by prescription, the evidence regarding the probable intention of the parties and the purpose for which the right was acquired would be afforded by the accustomed user. The extent of the right must be measured by the extent of the enjoyment proved in any particular case. It has been contended before me that if it is proved that the owner of a dominant tenement has a right of way over a servient tenement there would be a presumption that that right is unlimited in its character so that the way can be used for all purposes and at all times. This proposition is not supported by any authority and runs counter to a current of decisions. The leading cast upon the point is that in (1876) 1 Ch. D. 362 : 45 L.J. Ch. 353 : 33 L.T. 679 : 24 W.R. 466, Wimbledon and Putney Common Conservatorys v. Dixon, which has been referred to by the lower appellate Court. This proposition is not supported by any authority and runs counter to a current of decisions. The leading cast upon the point is that in (1876) 1 Ch. D. 362 : 45 L.J. Ch. 353 : 33 L.T. 679 : 24 W.R. 466, Wimbledon and Putney Common Conservatorys v. Dixon, which has been referred to by the lower appellate Court. In the judgment of James, L.J., at p. 368 occurs this passage: I am satisfied that the true principle is the principle laid down in these cases, that you cannot from evidence of user of a privilege connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form or for whatever purpose that property may be changed, that is to say, if a right of way to a field be proved by evidence of user, however general, for whatever purpose, qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purposes of the manufactory or town so built. Reference may also be made to the case in ('21) 59 I.C. 426 : 7 A.I.R, 1920 Bom. 233, Chintamani Hargovan v. Ratanji Bhimbhai. In that case, the contention that a person who has got a right to use a way for himself and his servants could extend the same to include a right of passage for sweepers carrying night soil was not accepted. In that case, as in the present case, a right of way was fixed by a decree in an earlier litigation and the learned Judges held that by that decree, it was never intended by the Court to hold that the claimants to the right of way had acquired over the ground a right of way for sweepers also. Macleod C.J., took the view that the decree in the earlier litigation upholding a claim to a right of way must be strictly construed according to the facts of the case, and to hold now that the right of way could be extended to include a right of passage for sweepers would be going further than the decree intended. Macleod C.J., took the view that the decree in the earlier litigation upholding a claim to a right of way must be strictly construed according to the facts of the case, and to hold now that the right of way could be extended to include a right of passage for sweepers would be going further than the decree intended. In the present case, the decree in the earlier litigation must upon the principle of this ruling be confined to the facts and the circumstances which existed at the relevant time in that case and, in my judgment, the argument that the right of way determined by that decree should be treated as unlimited in its character is erroneous. In this Court a similar question arose before Rafique J., in ('13) 19 I.C. 984 (All.), Jamna Prasad v. Gopinath. It was held in that case that the back door of a house occasionally used by ladies or sweepress could not be converted into a main door for males. Learned counsel for the appellants has relied upon the Privy Council case reported in ('86) 13 Cal. 136 : 13 I.A. 77 : 4 Sar. 713 (P.C), Jadulal Mullick v. Gopalckandra Mukerji. In my opinion, that case is distinguishable from the facts of the present case. Upon the facts proved in that case, their Lordships inferred that there was no limit to the user of the passage. That case, which did not arise under the Easements Act, was decided on special facts. The principle deducible from the case law is that the use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place and that any expansion of the user or the purposes for which the way may have been used is not permissible. 11. I have examined the findings of the lower appellate Court in the light of the law as explained in the decided cases and I am of opinion that the findings arrived at by the lower appellate Court are not vitiated and for the reasons stated above, I dismiss this appeal with costs.