Amberson Marten, Kt., C.J.
1. The parties here are two Mill Companies engaged in the cotton trade and owning adjoining properties. The dispute in the present case concerns the right of the plaintiffs (the Motilal Hirabhai Spinning and Manufacturing Company, Limited) to use a siding connecting with the railway siding of the B.B. & C.I. Railway Company.
2. [After referring to the map, His Lordship proceeded :]
3. The plaintiffs' case is that at all material dates the same persons were the agents of all these three Mill Companies, and that in the common interest the agents applied for and obtained the railway siding in question; that the expenses not borne by the railway company were subsequently divided between the three Mills; and that thereafter for many years the plaintiff company used the siding L.E.A.F. X B; and that subsequently being improperly obstructed in such user by the defendants, they have become entitled to an injunction to restrain such obstruction.
4. The defendants' case is that at most this user amounted to leave and license, and can be revoked; and that in any event the claim as put forward in the plaint was based on an alleged grant whereby the plaintiffs were the joint owners of the siding itself, and that that claim not being substantiated the suit as framed must fail.
5. In the trial Court the learned Judge accepted the last plea I have mentioned, and although he found almost all the other points both of fact and law in favour of the plaintiffs, he dismissed the suit on the technical ground as to the deficiency in the pleadings which I have mentioned.
6. On appeal, the learned District Judge reversed the decision as regards the technicality, and in substance agreeing with the trial Judge on the facts and the law subject to a variation as regards one small point, he allowed the appeal and granted the injunction asked for, This is yet another of the bitter disputes between these two Mills which we have been investigating for, 1 think, now some eight or nine days. Last week after many days'- hearing we decided three first appeals and one cross-objection between these two companies in connection with some land quite close to the siding in question, viz., plot survey No. 310 which is just to the South of plot 209.
7. [After referring to those cases above reported his Lordship proceeded:]
8. Accordingly, we bad there to go into the question what was proper to infer under the Easements Act from the conduct of the parties under the circumstances of the joint agency of these adjoining Mills. To a large degree we have the same problem to consider in the present case. We have the same joint agents: we have practically the same period of time : we have the same unbusinesslike conduct: and once more we have to infer from conduct what was the proper relationship between the parties. But there is this difference, viz., that the position of the parties is exactly the reverse of that in the former case. In other words, what the plaintiffs are contending for in the present case they were contending against in the previous case and vice versa.
9. [The judgment next dealt with the facts and negatived the defendants' objection on the pleadings. His Lordship proceeded :]
10. Now I come to the merits. I have already pointed out that in the notice given by the defendants to revoke the license, they themselves recognised that up to that date there had been a leave and license granted to the plaintiffs. Moreover, they repeat it in para. 8 of the written statement where they plead : 'Plaintiff Company and the Gujerat Spinning and Weaving Company make use of the said siding belonging to me defendant (the Gujerat Ginning Company, Ltd.) with leave and license of defendant Company'.
11. Very well, that is what the defendants themselves plead. So it would seem that not much argument is necessary to establish this at any rate that there is a license within the meaning of the Easements Act. I do not propose to go into the details of the Act again. We have already done that in our judgment in the first appeals. But Section 52 defines a license, and Section 54 provides that 'the grant of a license may be express or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license.'
12. The inference then which I would draw from the facts of this case (including the conduct of these common agents) is that it was clearly intended that the plaintiff company should have a license to use the siding for the purpose of running their own goods waggons to and from the railway siding itself. Indeed, if they were not to get that liberty, it is difficult to see why they ever allowed any rails to be constructed on their own land, and still more so why they were ever prepared to pay any part of the expenses of the siding. In my opinion their case is a strong one in this respect.
13. Then we come to the question whether under Section 60(6) of the Indian Easements Act the license is revocable, having regard to the works executed, and the expenses incurred by the plaintiff company. Now it will be noticed that the section runs: 'A license may be revoked by the grantor, unless... (6) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.' Now here it is clear to my mind that the licensee has acted upon the license. And in my judgment they have also executed work of a permanent character and incurred expenses in the execution. That work, I think, is the construction of this railway siding on their own land, and on the land of the defendant company, so far as their share is concerned. Similarly, they have incurred their share of the expenses in the execution of this work which is of a permanent character.
14. As regards the bills that they paid in 1918, they were in proportion to the whole expenses of constructing this siding. How the proportion was exactly arrived at, I do-not think is of great importance. But it would appear that eventually the parties agreed to divide according to a certain number of feet, and that the plaintiff company paid according to the proportion of the feet from A-B and H-D, So far as A-B is concerned, part of it was on their land, and part on the defendants' land, and in this respect the finding of the lower Court to the contrary must be reversed.
15. And even if the intention was that they should merely pay for the siding on their own land, viz,, H to D, I do not think it makes any substantial difference. We are asked to hold that Sub-section (b) of Section 60 must be confined to the case where the licensee has executed the work on the land of the licensor. In other words, we should make the relevant sentence of the clause run :'Unless the licensee acting upon the license has executed on the land of the licensor a work of a permanent character.' To my mind it would be wrong of us to read those words into the Act. I see no adequate reason why that should be done.
16. If the expectation has been created by the licensor, I think, it Company makes little difference in principle whether the licensee in reliance on such expectation has erected the building on his own land or on that of the licensor. In certain cases it may well be Company that the licensee would be entirely defeated in the object for which he has incurred this particular expense on the expectation held out by the licensor, if the licensor was allowed to determine the license in question. For instance, supposing here the plaintiffs had put up a large godown in connection with this siding, it would be very harsh after the expenses had been incurred to say that the license to connect this siding with the railway line should be cancelled, because the godown had been built on the licensee's own land and not just across the boundary on the land of the licensor. That, indeed, is the view taken in certain English authorities, to which I will refer.
17. I need not repeat what this Court has said in the first appeals as to the principle of equity laid down in Ramsden v. Dyson (1865) L.R. 1 H.L. 129 . But in Plimmer v. Mayor, &c;,) of Wellington (1884) 9 App. Cas. 699 . this equity was applied to a case between the Crown and the subject, where the subject had executed certain works on the faith of a representation by Government, that if those works were executed, then a certain interest of a permanent nature would devolve on the subject. Accordingly, it was held that in equity the subject having executed these works on the face of this representation was entitled to prevent the Government from acting contrary to the expectation thus created.
18. It will be seen that that was a case where the works were erected on the land of Government; but in delivering the judgment of the Privy Council, Sir Arthur Hobhouse referred to a similar case where the works were executed on the land of the licensee. Thus at p. 714 he says:-
The consequence is that Plimmer acquired an indefinite that is practically a perpetual, right to the jetty for the purposes of the original licence, and if the ground was afterwards wanted for public purposes, it could only bo taken from him by the legislature. An analogy to this process may be found in such cases as Winter v. Brockwell (1807) 8 East 308. and Liggitu v. Inge (1831) 7 Bing. 682 . These cases shew that where a landowner permits his neighbour to execute works on his (the neighbour's land), and the licence is executed, it cannot be revoked at will by the licensor. If indefinite in duration, it becomes perpetual. Their Lordships think that the same consequence must follow where the licence is to execute works on the land of the licensor, and owing to some supervening equity the licence has become irrevocable.
19. Turning to Winter v. Brockwella (1807) 8 East 308 . that was a decision by Lord Ellenborough in 1807, where a parol license had been granted to erect a sky light over the defendant's area, which impeded the light and air from coming to the plaintiff's dwelling house through a window. It was held that the license could not be recalled at pleasure after it had been executed at the defendant's expense; at least not without tendering the expenses he had been put to, and therefore no action would lie as for a private nuisance in stopping the light and air.
20. In giving judgment on the motion for a new trial, the Chief Justice said (p. 310) 'that the point was new to him when it occurred at the trial; but he then thought it very unreasonable, that after a party had been led to incur expence in consequence of having obtained a licence from another to do an act, and that the licence had been acted upon, that other should be permitted to recall his licence and treat the first as a trespasser for having done that very act. That he had afterwards looked into the books upon this point, and found himself justified by the case of Web v. Paternoster, (best reported in Palmer 71, but reported also in other books), where Haughton J. lays down the rule, that a licence executed is not countermandable; but only when it is executory. And here the licence was executed'.
21. Then in the other case, Liggina v. Inge (1831) 7 Bing. 682 the plaintiff's father, by an oral license, permitted the defendants to lower the bank of a river, and make a weir above plaintiff's mill, whereby less water than before Mowed to plaintiff's mill. It was held that the plaintiff could not sue defendants for continuing the weir. The judgment there was given by the Chief Justice Tindal, and though some of the learned Judge's observations as to the exact nature of a water flowing in a stream have not been approved of in subsequent cases, this is how the learned Judge deals with the question we have to consider, viz. (p 693) :-
Or suppose A, authorises B., by express licence, to build a house on B.'s own land, close adjoining to some of the windows of A.s house, be as to intercept part of the light; could he afterwards compel B. to pull the house down again, simply by giving notice that he countermanded the licence Still further, this is not a licence to do acts which consist in repetition, as to walk in a park, to use a carriage way, to fish in the waters of another, or the like: which licence, if countermanded, the party is but in the same situation as he was before it was granted; but this is a licence to construct a work, which is attended with expense to the party using the licence; so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss. It is a license to do something that, in its own nature, seems intended to be permanent and continuing. And it was the fault of the party himself, if he meant to reserve the power of revoking such a licence, after it was carried into effect, that he did not expressly reserve that Company right when he granted the licence, or limit it as to duration. Indeed, the person who authorizes the weir to be erected becomes, in some sense, a party to the actual erection of it; and cannot afterwards complain of the result of an act which he himself contributed to effect. Upon principle, therefore, we Compass think the licence in the present case, after it was executed, was not countermandable by the person who gave it, and consequently that the present action cannot be maintained. And, upon authority, this case appears to be already decided by that of Winter v. Brockwell, which rests on the judgment in Webb v. Paternoster. We see no reason to doubt the authority of that case, confirmed, as it since has been, by the case of Taylor v. Waters in this Court, and recognised as law in the judgment of Mr. Justice Bailey, in the case of Hewlins v. Shippam, in the Court of B.R.
22. Further the equity which was thus recognised in Plimmer v. Mayor, &e.;, of Wellington (1884) 9 App. Cas, 699,received striking confirmation in our own Court in Municipal Corporation of Bombay v. Secretary of State 7 Bom. L.R. 27 which I have dealt with in our judgment in the first appeals. There, there was no definite agreement which could be enforced in the ordinary way in a Court of law. But it was held that the equity in favour of the Municipality came into existence in 1866; that it had not been established that it had since been lost; and that under that equity the Municipality was in effect entitled to call on the Government to carry out the expectation which was created in the minds of the Municipality when it gave up certain land on the understanding that it was to receive other land with power to build stables thereon. In the result, the Court directed a lease or leases to be granted by Government, the terms of which I have alluded to in the first appeals.
23. That, again, was a case of building on another man's land. But it seems to me that in principle the equity is really the same. Therefore, so far as English law is concerned,.there is nothing which should cause us to limit Section 60, Sub-section (b), in the way which is suggested by the defendants, On the contrary, I think the correct view is to construe the clause as it stands and that doing so it applies equally to permanent works executed on the land of the licensor, or on the land of the licensee, provided the licensee has acted upon the license in executing those works. Here I may observe that in India we are governed by the relevant Codes and that accordingly we ought to decide precisely in accordance with what is there laid down.
24. English authorities may be useful when there is some doubt as to the construction of a particular provision in the Code, or where it is not exhaustive. Thus, alternatively, I think one may invoke here the principle of equity laid down in Ramsden v. Dyson, and applied in Municipal Corporation of Bombay v. Secretary of State. But I do not think it is necessary to do so in the present case as the Act is sufficient. At the same time I do not think that one is debarred from raising that particular equity merely because it is not asked for in so many terms in the pleadings in the Courts below. It is merely legal inference from certain admitted facts.
25. There is yet, one other way of putting the plaintiffs' case, and that is as an easement. The arrangement between the parties, if it had been on clearly defined lines, might have involved in effect the grant of an easement, e. g., if the defendants were entitled to use the branch running on the plaintiffs' land. But I feel considerable difficulty about that in the present case as in the first appeals, because I am unable to say that there was here such a definite agreement that one could obtain specific performance of it, or even damages for breach of contract. Limitation, however, does not apply here, because sufficient time has not elapsed, Therefore, though it is unnecessary for me to hold definitely that the plaintiffs' claim cannot be based on easement, I prefer to base my decision in their favour on that of license. In saying this I appreciate of course that under the definition of license in Section 52, the right conferred does not amount to an easement, or to an interest in the property. But the matter is put in this way, If it is an easement, cadet quaestio. If it is not an easement, then it is a license, and to arrive at the terms of the license, one may turn to Section 54, and imply them from the conduct of the alleged grantor.
26. Before passing on, I should refer to the judgment of that great lawyer Mr. Justice Stirling in Aldin v. Latimer Clark, Muirhead & Co  2 Ch. 437. That was a case where a lessee had put certain ventilators into his property with the consent of the lessor. The lessor got no consideration for it, and afterwards erected certain which obstructed the ventilators. It was there held license was revocable, and, as reasonable notice had not been given the tenant was entitled to an inquiry as to damages. Mr. Justice Stirling sets out his reasons for distinguishing that case from Winter v. Brockwell. And on the facts, I think there is a substantial difference between that case and the one we have got here; and that in any event the principle of equity laid down in Ramaden v. Dyson and Plimmer v. Mayor, &C; of Wellington, which was applied in our own Court in Municipal Company Corporation of Bombay v. Secretary of State, is the one more applicable to the facts of this particular case.
27. There were two other authorities which I should also note in passing, Bhagwan Sahai v. Narsingh Sahai I.L.R.(1908) All. 612 was cited to us to show that in India the grant of an easement does not require registration, not being a transfer of ownership as contemplated by Section 54 of the Transfer of Property Act. In another case of Sital Chandra Ghowdhury v. Mrs. A.J. Delanney (1918) 20 C.W.N. 1158. it was held that the Transfer of Property Act had no application to the creation of an easement; that no writing was necessary for the imposition of an easement before the Transfer of Property Act was passed; and that Sections 54 and 123 of that Act did not change the pre-existing law regarding the easements so as to require a writing for their creation or imposition where no writing was previously necessary. But the defendants have pointed out to us that the Easements Act has not yet been applied to Calcutta.
28. There was one other way in which the case was argued before us, viz., that there was a grant here by the defendants to the plaintiffs, but that argument does not appeal to me. If, for instance, it involves any application of the doctrine of a lost grant or anything of that sort, then, having regard to the comparatively recent dates of the material events, the present can hardly be one where any lost grant ought to be presumed.
29. Moreover, as has already been brought out, the whole trouble has arisen in this case, because these common agents chose to look upon themselves as if they were the proprietors of the three limited liability companies, and had all the powers of the directors. In the other appeals it was clear that the directors had never been formally consulted, so far as the evidence in the case went, In the present case there is nothing to show that the directors formally passed any resolution on the subject. That again is a matter one must take into consideration in weighing what one ought to infer from the conduct of the parties. One must also consider this. I think it must be taken to have been within the knowledge of the legal entity, and its directors and share-holders, that these sidings were created, and that they were in existence on its property, and that they were being actively used by all the three companies, Indeed if the agents had only gone On to provide for a reasonable agreement between the parties on definite lines we should have been saved these lengthy discussions in this case as well as in the other appeals.
30. Now this brings me to, I think, the last point in the case. The learned District Judge granted simpliciter an injunction against the defendants from obstructing the plaintiffs' user. That indeed was the only relief originally asked in (the case, barring the claim for further and other relief, But it seems to me that this form of order is not altogether fair to the defendants-a mere perpetual injunction without anything more. For one thing it is clear that there are maintenance charges payable to the railway company which hitherto the defendants have borne, and to which the plaintiffs ought to have but have not contributed, just as in the other case the defendants ought to have but in fact have not paid any rent for a large number of years. I think, therefore, that a condition for granting this injunction (which is an equitable relief) must be imposed, viz., that the plaintiffs should pay a reasonable proportion of the maintenance charges in the past and in the future; and that as regards the past charges, their proportion should be calculated down to the date of this judgment, and the precise figure should be inserted in the judgment. [His Lordship then dealt with - certain details and continued:]
31. Another point to be provided for is this. The defendants have raised the contention that they are entitled at any time to give up this siding altogether, and that in that case the plaintiffs would have no rights. I do not agree with that argument, I think the proper course is to provide that this license shall enure during the duration of the license from the railway company, and of any extension thereby granted by the railway company, and that there should be a covenant by the defendants to do all acts and things reasonably necessary to preserve that license, and that in default the plaintiffs are to be entitled to do so.
32. There may be other provisions for the reasonable protection of either party. As to the form these provisions should take, it has been suggested to us that they might be inserted as provisos or conditions attached to the injunction. But I think it is preferable that there should be a formal agreement embodying the terms of this license as between the plaintiffs and the defendants, and that there should be a condition attached to the granting of the injunction that the plaintiffs are willing to execute it. That agreement would be on the lines I have already indicated, but the precise terms will be settled by the Court in case the parties differ. If, on the other hand, the defendants decline to enter into any such agreement, then it may be that injunction will go simpliciter.
33. As regards costs, the appellants have substantially failed in this case. I think, therefore, that, subject to the above variations, the appeal should be dismissed with costs, But it will be for the consideration of the parties whether it will be necessary to send this case back to the lower Court, or to a Commissioner to determine certain points, e, g., what would be a fair and reasonable way leave rent. I may, however, express the hope, as Sir Lawrence Jenkins expressed it in Municipal Corporation of Bombay v. Secretary of State, that the parties will be reasonable enough to agree on the terms of the document in question. They already have to agree, if they can, on the terms of the lease to be executed in the other appeals, and though I recognise we have very different parties from the public bodies before the Court in Municipal Corporation of Bombay v. Secretary of State, I still have hopes that reason may eventually resume its sway, and that these parties will realise that they have occupied their full share of the time of this Court over their litigation, and that in their own interest it would be a fortunate thing if they can agree to what are after all comparatively simple matters to agree on, provided only you have reasonably-minded men to deal with.
1903 B.B, & C.I . Railway were requested by the agent of the Gujerat Ginning Mill to give that company, and two others, one of them being the plaintiffs in this case, and the third a company which is not a party to this suit, a private siding adjacent to the three Mills, which are situated close together. At this time, all three Mills were managed by the same firm of agents, and though their agent, the late Seth Mansukhbhai Bhagubhai, wrote in his character of agent to the defendant company, he stated that the siding was required for all three Mills, There was some correspondence, and in the end the scheme was accepted by the railway company and completed in 1909. It consisted of a siding made by the railway on its own land, and branches from this siding leading to convenient places in each of the three Mills. The defendants accepted the condition imposed by the railway in its Memo, Exhibit 79 in the case, but a more formal agreement, which was contemplated in that document, is not in evidence. Though this work carried out and put into use, no written agreements were executed, nor were any financial adjustments made, as between the railway and the three Mills inter se, at the time.
35. In 1913 when the three Mills still had the same agent, a demand for some sums due for the siding seems to have been made by the railway, and the common agent then determined that an apportionment of the coats of the siding and its branches Company should be made between the Mills in the ratio of the respective lengths of line in the premises of each of them. The apportionment was accepted by the other two Mills, and adjustments were made in their books. The whole of these transactions are shown in what is called the siding account, which was kept by the defendant-Mill. It was after this that there were changes in the management, and the agents of the Gujerat and Motilal Hirabhai Mills having fallen out, a dispute as to this matter, amongst others, broke out. The defendant-Mill's contention was that, since the permanent way leading from the premises of the Motilal Hirabhai Mill crossed the land of the Gujerat Ginning Mill, the latter Mill's management was entitled, if so minded, to prevent the Motilal Mill from passing its goods and obtaining its supplies across their premises, Correspondence in this sense, which is contained in Exhibits 12 to 15, passed between the two Mill agents in March 1928 and June of the same year. The defendant-Mill seems after this to have blocked up a part of the line in their premises apparently by taking up some of the permanent way.
36. In November of the same year, i.e., 1923, the plaintiff-Mill filed the suit out of which this second appeal comes. The trial in the original Court was not a particularly good one, for the pleadings were defective, and the suit was handled by three different Judges. At a late stage, after arguments, the Judge then in charge framed some fresh issues, and called for some more evidence to be taken, but did not decide the case, which was concluded by his successor, who was of opinion that the crucial issue framed by Mr. Pathak did not arise and he did not record a finding on it. He found most of the issues in favour of the plaintiff-Mill, but ultimately decided the case against it, really on a technical ground arising out of defects in the pleadings.
37. On appeal, the learned District Judge reversed this decree, and gave the plaintiff-Mill an injunction restraining the defendant Mill from interfering with plaintiffs' access to the main siding.
38. The facts are all really admitted, and the only point in dispute, viz., the length of line for which the plaintiff-Mill was billed and paid for has now been settled. In fact, the plaintiff-Mill paid for slightly more than it should have, but I think the fact is not really decisive of anything in the case. The real issue is the one not found on by the original Court, and which was subsequently issue No. 1 in the District Court. This issue was :- 'Does the appellant Mill possess the right to use that part of the siding which lies on the respondent company's land?' This issue was found affirmatively by the learned District Judge. To answer it, it is necessary to consider the facts and probabilities, so as to determine the character of the plaintiff-Mill's rights, if any.
39. As already stated, at all material times the two contending Mills had the same managing agents, The real manager, from 1903 onwards, was the late Sheth Mansukhbhai, and it is to him that the idea of obtaining this siding for the three Mills occurred, and since the question of whether a siding was worth while making or not, from a traffic point of view, arose, the number of Mills which could use it was an important one. The agent should of course have made three separate, or at least a joint application to the railway authorities, explaining that all three Mills required a siding, that each was ready to abide by the railway's conditions, and that each was prepared to give the other such facilities as were necessary for the success of the scheme. But unfortunately this was not done. The agent made a single application, and merely named the other two Mills as ones which were to use the siding; and even when the siding was built, he neither made proper financial arrangements between them nor had reciprocal agreements as to the manner in which it should be used, drawn up. The result is that, ostensibly at any rate, the application was made, and the siding given to the defendant Mill.
40. What rights then did the plaintiff-Mill acquire 1 Its name had been mentioned in the application, and most probably the fact that it was to use the siding helped to obtain it, or at least this must have been a favourable factor when the application was considered by the railway administration. The plaintiff-Mill also laid down lines to connect with those in the defendant-Mill's land, and as has been pointed out by Mr. Desai, it was probably also intended to use the plaintiff-Mill's lines to reach the other part of the defendant-Mill's premises-though whether this was ever actually done, or not, is not shown in the evidence. The plaintiff Mill also presumably made some other necessary arrangements to obtain its supplies, and to send its bulky goods over the siding. Do these facts give it any rights over the portion of the line on the defendant-Mills' land, and if so of what kind are they ?
41. Mr. Thakor's main contention has been on the pleadings. It is a fact that the plaintiff firm was so ill-advised as to base its claim, which is not very clearly stated in the plaint, in Exhibit 28, a reply to Exhibit 34, in which it was asked specifically to state its legal position, on the right of joint ownership; and it was on this ground as stated in para. 45 of the original Court's judgment that the suit was decided against it. The learned District Judge has brushed aside this technical view. He says that it is clearly stated in the plaint that the land belongs to the defendant-company, and that it was the original Court's duty to find what the correct expression or legal label for the bundle of rights the plaintiff-company had claimed was, and to give relief, if necessary, on that basis.
42. In fact this was clearly the view adopted by Mr. Pathak, when the case came into his hands, and it was the object with which he, very properly, framed issue No. 4; and re-opened the trial. It is true that it is a rule of pleading that a plaintiff must state his case, correctly, and should fail or succeed according to his own allegations. But in the mofusssil where pleadings are not always as skilfully drafted as they might be, it is also the duty of the Court to satisfy itself that the real differences between parties are properly brought out in the issues, and the Civil Procedure Code contains several provisions enabling the Courts to do this, of which Order XIV, Rule 5, the authority under which Mr. Pathak acted, is one and it was within the power of the trial Judge to have done this, instead of deciding the suit on a technical point as he did, I agree with the learned District Judge on this point.
43. The next consideration is the real character of the bundle of rights which the plaintiff-Mill claims in this connection. There is no question of a sale, or of a lease, or of the acquisition of a joint interest in the whole siding, and the point hinges on whether there was an agreement to give an easement, or to give a license. Mr. Desai for the plaintiffs has suggested that the facts fall within Section 4 of the Easements Act, and that the Transfer of Property Act is not applicable, since it does not deal with the creation of an easement, and that it is not really a case for equitable relief.
44. On a review of the facts I think that we must assume that there was an implied agreement between the two Mills, by which the defendant Mill gave the plaintiff Mill a license to use the track traversing the defendants-Mills' ground, which belonged to that Mill, for access to the main part of the siding on railway premises.
45. This conclusion, I feel, follows inevitably from the facts, When the scheme for a private siding was started, as has been insisted on by Mr. Desai, what must have been in the agents' mind was the scheme as a whole, by which all three Mills were to have the projected convenience, for any other object would have been absurd and wasteful. It follows that the necessary implications of such a scheme must be taken into account. The siding was to be used for all three Mills, and from the map it is dear that the plaintiff Mill had to have some right of way over the defendant-Mills' rails, for otherwise it could not easily reach the main siding. There must also have been some idea of permanency about the arrangement, for if the plaintiff-Mill's license was to be at the mercy of defendants' Mill, it was not worth while laying down a railway line in its premises and erecting the other necessary works. Similarly, from the railway point of view, the inclusion of the other Mills in the scheme would be a factor weighing with the administration when considering whether to give a private siding or not.
46. The subsequent conduct of the parties is also consistent with this view, though very unbusinesslike. It appears that in spite of the careful conditions in the memo of agreement) Exhibit 79, no bills were sent for some years, but ultimately, as I have already stated, they were received and apportioned between the three Mills in 1913, a separate 'Khata' of the siding account having been kept by the defendant Mill.
47. Mr. Thakor has emphasized the fact that the line his clients have obstructed was on their land, that his clients have so far paid nearly all the charges for the siding, and that the plaintiff Mill company, apart from the payment in 1913, has contributed nothing to the coat of the main siding. But it appears, here again, that no bills have been presented, why is not clear. The point might have been a good one had the plaintiff Mill refused to pay its quota, but this was not the case.
48. A license is defined in Section 52 of the Easements Act, and Section 53 provides the manner in which it may be given. The right claimed by the plaintiff firm, though of the nature of an easement, does not, in my opinion, amount to one, and falls therefore within the definition of a license. Its origin may also be traced back to an implied agreement as in this case, which is, therefore, I think, covered by these two sections.
49. There remains the question of whether, this being a license enjoyed by the plaintiff company, it is susceptible of being revoked. The relevant section is 60 (6) of the same Act, which lays down what is, in ultimate analysis, the equitable principle that, where a licensee has been allowed to put up permanent Company structures, his license cannot be revoked by the licensor. In this case the permanent structures are certain lengths of railway lines intended, as far as the evidence discloses, to be of a permanent character within the licensee's limits. I think this last fact is not a bar to the application of the section, for, it contains no saving limiting that application to the case of permanent structures erected on the strength of a license on the licensor's own property, as it would have, had it been intended to confine it to that case, and to exclude such cases as the present one.
50. I, therefore, think that the section applies, that the license in this case cannot be revoked, and that the District Court's decree is proper, except in so far as it has granted a bare and unqualified injunction. It is evident that it is only fair that the injunction should be coupled with conditions to which the plaintiff company should have an opportunity of agreeing.
51. I, therefore, agree in the order which has been proposed in His Lordship the Chief Justice's judgment.
52. Vary the order of the lower appellate Court by directing that if the appellants so desire, respondents are to enter into an agreement with the appellants conferring the right on the respondents during the continuance of the railway company's license or any extension thereof to use the suit siding in common with the appellants and all other persons, if any, having from time to time the like right, but subject to the imposition of a way leave rent and the payment of a proper proportion of the railway maintenance charges and the expenses of maintaining the siding including the railway clerk. Above proportion to be the same proportion as that paid to the defendants in 1913 by the plaintiffs. Amount to date to be fixed in the order, Defendants to do all acts and things necessary to preserve the railway license and in default the plaintiffs to be at liberty to do so. Power to the defendants to determine on non-payment of way leave rent &c;, for three months after written notice of demand, Agreement to date from completion of siding in or after July 1909. Exact date to be ascertained. Amount of way leave rent to be calculated on approximate rental value of the land thus occupied, but to be confined to the plaintiffs above proportion of same. Subject to above, appeal dismissed with costs. If the appellants do not desire above agreement then appeal to be dismissed simpliciter with costs. Set down both sets of cases on Tuesday, October 9, for consideration of the terms of the above agreement and of the lease in the other appeals.
53. [On October 12, 1928, after further argument on two items of the license a further judgment was delivered.]