1. This is an appeal by the plaintiff against the decree of the appellate Judge dismissing his suit for a permanent injunction restraining the defendants from obstructing him in passing through their open site while coming out from his house and also from obstructing the passage of the water of his bath room through the said open site. The facts found are that the plaintiff is a purchaser in a Court-sale of a house belonging to defendant No. 1, who is the main contestant in the suit and whom I will, therefore, call the defendant. At the time when the property was purchased by the plaintiff there was a door in the southern wall of that house from which there was an access to an open piece of land belonging to the defendant through which there was a way to go towards the west. There was also an outlet; in the southern wall for passage of the water of the house into that open piece of land. The plaintiff claimed the right of way through the door and the right to discharge water from that outlet although the sale-certificate was silent about those rights. The defendant obstructed the plaintiff in the exercise of those rights and hence the present suit.
2. The plaintiff did not plead an easement of necessity in the plaint, but in a subsequent amendment application he pleaded an absolute necessity for both the rights. The learned appellate Judge held on the evidence that there was no such necessity because the suit house abutted on a public road, and there was nothing to prevent the plaintiff from opening a door in the western wall of his house. So also the bath water could be discharged by opening a mori in the western part of the house. On those grounds it was held that the plaintiff had not proved any absolute necessity to bring his case under Section 13(a) of the Indian Easements Act.
3. There is no doubt that the learned Judge was right in holding that on those facts the easement of absolute necessity was not proved. It was, however, sought to be argued on behalf of the plaintiff that he had acquired the easement as one of qualified necessity, for which reliance was placed on Clause (b) of Section 13. Under that clause--
Where one person transfers immoveable property to another, if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer took effect, the transferee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
4. The learned Judge was of the opinion that the plaintiff was not entitled to make out a new case about qualified necessity in the argument when it was not pleaded even in the amendment application. He was further of opinion that his case did not fall under Section 130k), which applied only to a private transfer by one person to another and not to an auction sale through Court. It is contended that the latter view is wrong because the last paragraph of Section 13 provides that
Where immoveable property passes by operation of law, the persons from whom and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
5. According to the respondent, a property purchased at a Court sale does not pass by operation of law, but it is not necessary to discuss this point as, in my view, the right claimed does not fall under Section 13(b) for other reasons.
6. The main point is whether the alleged right is a continuous easement. The plaintiff's case is that a formed or a paved way is a continuous easement and therefore falls under Clause (b) of Section 13. In support of this argument, reliance is placed on the decision in Chhotalal v. Devshankar (1901) 3 Bom. L.R. 601. In that case it was held that the 'necessity' contemplated in Clause (a), (c) and (d) in Section 13 of the Indian Easements Act is an absolute necessity; while in Clause (6) of the section it is a qualified necessity. It was further observed that a right of way may not be absolutely necessary and yet necessary for the purpose of enjoying the property as it was enjoyed when the transfer of it took place. The existence of this last necessity has to be determined with reference to the prior user. In discussing the question of prior user it was stated in the course of the judgment, while remanding the case to the lower Court, as follows (page 602):--
In dealing with this part of the case it will be incumbent on the Judge to determine what apparent signs there are, and by way of illustration we may indicate that a permanent doorway and a formed path would certainly answer that description. Similarly, though a right of way is in one sense not continuous, still it would be for the purpose in hand if the evidence showed a permanent adaptation for the better enjoyment of the plaintiff's houses.
7. The two issues sent down were whether a way from the door to the public street was necessary for enjoying the plaintiff's house as it was enjoyed before, and whether that was apparent and continuous within the meaning of Section 13, Clause (b), of the Indian Easements Act. It is contended on behalf of the appellant that this decision is in his favour inasmuch as it lays down that if there is a permanent doorway and a formed path, it would fall under Section 13, Clause (6), and as in the present case the way as well as the passage of water are clearly on formed lines, each of them must be regarded as an apparent and continuous easement and as having passed to the plaintiff under the sale certificate though not expressly mentioned therein. In considering this argument, it is necessary to turn to the provisions of Section 5 of the Act, which defines a continuous and a discontinuous easement. A continuous easement is defined as one whose enjoyment is, or may be, continual without the act of man, and a discontinuous easement is defined as one that needs the act of man for its enjoyment. Then ill. (b) to that section is as follows:--
A right of way annexed to A's house over B's land. This is a discontinuous easement.
8. Reading Sections 5 and 13(6) together, it would follow that a right of way, though apparent, if it is a formed way, is a discontinuous easement, and that therefore it does not fall under Section 13(b), and cannot be regarded as an easement of qualified necessity, or, as it is called, a quasi easement. The illustration speaks of a right of way and does not make any distinction between an unformed path and a formed or paved way. It does not appear from the judgment as reported in Chhotalal v. Devshankar (1901) 3 Bom. L.R. 601 that the provisions of Section 5 and the illustration were brought to the notice of the Court. But on looking to the judgment of this Court in the same case after remand, which however is not reported, it appears that the provisions of Section 5 were brought to the notice of the lower Court after remand, and the District Judge was of the opinion that the way claimed was not a formed visible path and that it was a discontinuous easement. When the appeal was argued after the findings were received, it was suggested on behalf of the appellant that in view of ill. (b) to Section 5 and of Section 13 of the Indian Easements Act, a right of way could not, if merely a quasi easement, pass without express words on a transfer of the property with which it had been enjoyed. It was observed by this Court that it was unnecessary to pronounce any decided opinion on that point having regard to the finding that there was no formed path visible. There was, however, a further observation that it was a matter for consideration whether, notwithstanding Sections 5 and 13 of the Indian Easements Act and ill. (b) to Section 5, a visible formed road, evidently intended to be permanently adapted to the better enjoyment of a house, as distinct from a mere track, may not pass on a transfer of the property with which it had been enjoyed as a quasi easement. In the end the appeal was dismissed on the ground that the way alleged was not a visible formed road but an unformed track.
9. I do not think that the decision of this Court before as well as after remand can be regarded as an authority for the proposition that a formed road must be regarded as a continuous easement under Section 13 (b). The recent English law, after the passing of the Indian Easements Act, is that a formed and metalled road was a kind of apparent and continuous easement. But Section 5 of the Indian Easements Act with ill. (b) still remains as it was before, and has not been amended so as to conform to the trend of recent decisions in England. So far as the Indian law is concerned, therefore, in those provinces of India which are governed by the Indian Easements Act, the law to be applied must be the law as embodied in the Indian Easements Act and not the recent English law. This point has been exhaustively discussed by the Madras High Court in Narayana Gajapatiraju v. Ratnayammaji (1929) I.L.R. 53 Mad. 449, and it has been held, after reviewing a number of authorities, that having regard to the provisions of the Indian Easements Act it was not open in India in those cases where the Indian Easements Act applied to follow the English decisions subsequent to the Indian Easements Act and to hold that a formed and metalled path-way would be an apparent and continuous easement for the purpose of determining the rights of parties under Section 13, Clause (f) of the Indian Easements Act, which also applies to a continuous easement. In my opinion, this decision lays down the correct law to be followed in such cases. It is difficult to regard even a paved and metalled road as an easement of qualified necessity if it is not a continuous easement. 'Section 13 of the Indian Easements Act makes a distinction between easements of necessity and other easements. The easements mentioned in Clause (a), (c) and (e) of that section are regarded as easements of necessity and those in the remaining clauses may be regarded as of qualified necessity. The necessary result, therefore, would be that even if there is a formed way, it does not pass as an easement of qualified necessity. It can only pass as an easement of absolute necessity, that is to say, where it is not possible to have any other way for passage. The same reasoning would apply to the passage of water which must be regarded as a discontinuous easement and therefore not falling under Clause (b) of the section.
10. If a paved or metalled road, over which a right of way has been exercised before the severance took place, is deemed to pass to the transferee as a case of qualified necessity, it would be for the Legislature to make a proper amendment by bringing the Indian law in conformity with the trend of the recent English decisions. But so long as Section 5 and ill. (b) stand as they are at present, it is, in my opinion, difficult to hold that such an easement would fall under Section 13(b) and pass to the transferee. I think the decree of the lower Court is, therefore, correct, and the plaintiff has not acquired the alleged right of way as well as the right of passage for water.
11. The decision of the lower appellate Court is confirmed and the appeal is dismissed with costs.