A. Misra, J.
1. This appeal has been preferred by plaintiffs Nos. 13, 14, 17 and daughter of Plaintiff No. 18 against concurrent judgments of the Courts below. The subject-matter of litigation is about 31 decimals of land appertaining to plots Nos. 171, 718, 721, 723 and 727. The suit was instituted in all by 18 plaintiffs including the appellants. As per the genealogy given in the plaint, one Sk. Garibulla had two sons Sk. Bhikan and Sk. Mahihulla. Plaintiffs Nos. 1 to 12 are descendants of Ehikan's branch. Mahibulla according to the genealogy was married to Taffai through whom he had four daughters Kasida, Nasiman, Ajiman and Basiran. Plaintiffs Nos. 13 to 18 are descendants of these four daughters. Mahibulla had a concubine Sunai Bibi through whom he had a son Sk. Minazuddin and a daughter Kariman Bibi. This daughter died without any heirs. Minazuddin died before conclusion of the current settlement leaving his widow Johuran Bibi.
The five plots in suit measuring 0.31 acre were recorded in the name of Johuran, though they were joint properties of Mahibulla and others. Johuran by two sale deeds dated 18-12-37 and 3-3-38 purported to sell the suit lands to one Sk. Doman, father of defendants Nos. 3 to 5 for a consideration of Rs. 200/-. Defendants Nos. 3 and 4, in their turn, sold a portion of these lands in favour of defendants Nos. 1 and 2 on 3-2-53 and on 23-6-53, defendant No. 5 executed a deed of relinquishment so far as his interest was concerned in favour of defendants Nos. 1 and 2. According to plaintiffs, the lands in suit belonged to and was possessed by Mahibulla and other members of the family jointly and that Johuran had no right to convey any valid title in favour of Sk. Doman and necessarily defendants Nos. 1 and 2 did not acquire any right by their subsequent purchase.
They allege that they have been in possession of plot No. 717 by growing vegetables, etc., and have all along been using plot No. 718 as of right to have access to the public road from their house on plot No. 719. The sale by Johuran is alleged to be collusive and without consideration and defendants Nos. 1 to 5 never came into possession of these lands. On these allegations plaintiffs pray for a declaration of their title to and confirmation of possession or in the alternative recovery of possession of the suit lands. In the alternative, in case Johuran is found to have any share in the properties, they pray for being allowed to re-purchase the same, or declare their right of way on plot No. 718 and injunct defendants Nos. 1 to 5 restraining them from obstructing such right.
The contesting defendants Nos. 1 to 5 resisted the claim alleging that the suit properties did not constitute the ancestral or joint properties of plaintiff's family; that the suit properties exclusively belonged to Sk. Minazuddin who made a gift of the same to his wife Johuran in lieu of her dower; that Johuran and after her the purchasers defendants Nos. 3 to 5 and defendants Nos. 1 and 2 have been in continuous and exclusive possession of the same in their own right; that plaintiffs were never in possession of any portion of the suit lands and that they had no right of way over the never used plot No. 718 to have access to the public road. They also deny the correctness of the genealogy.
2. The trial Court on a consideration of the evidence, oral and documentary, found; (1) that the genealogy given in the plaint is partly incorrect; (2) that plaintiffs have no title to or possession of the suit lands and defendants Nos. 1 to 5 have acquired an indefeasible right therein and (3) that plaintiffs have acquired a prescriptive right of way over plot No. 718 to have access from their house to the public road for which purpose it allowed a passage of 5 feet width lying across the left boundary line of C. S. plot No. 718. On these findings, plaintiffs' suit was decreed in part only in respect of their right of way over C. S. Plot No. 718. The rest of the claim of plaintiffs was disallowed. The plaintiffs preferred an appeal against the judgment and decree of the trial Court and defendants filed cross-objection against the finding of the trial Court allowing a right of way over C. S. Plot No. 718.
The lower appellate court dismissed both the appeal and cross-objection, though it reversed the finding of the trial court regarding the correctness of the genealogy by holding that the four daughters were of Mahibulla. It found that the suit properties belonged to Johuran Bibi exclusively and did not constitute joint properties of Mahibulla's family. It also concurred in the finding of the trial court that Johuran and after her, defendants have been in exclusive and continuous possession of the properties all along. The lower appellate Court relying on the report (Ex. 2) and the testimony of pleader Commissioner who had been deputed for local inspection held that plaintiffs Nos. 1 to 4 are entitled to a right of way, as decreed by the trial court as an easement of necessity and accordingly dismissed the cross-objection.
3. Four of the plaintiffs have preferred this second appeal challenging the findings regarding their title to and possession of the suit lands, while defendants have filed cross-objection against the finding that plaintiffs Nos. 1 to 4 are entitled to a right of way over plot No. 718 as an easement of necessity.
4. Learned counsel for appellants assails the findings of the Court below on the following grounds; (1) that the findings are based on errors of record; (2) that once plaintiffs are found to have been in possession of plots Nos. 717 and 718, they will be deemed to be in possession as co-sharers, and therefore, possession of the rest by Johuran and after her by the defendants will be nothing better than possession of co-sharers which in the eye of law will enure to the benefit or all; (3) that when the Courts below have found that plaintiffs are using plot No. 718 as a passage from their house to the public road, their user will be traceable to ownership and not easement, and as such, it cannot be said that they have been excluded from possession of the suit properties. For respondents, on the other hand, it is urged that in view of the concurrent findings of the Courts below, the aforementioned contentions are not available to be raised by appellants in second appeal.
5. The finding of the lower appellate Court regarding the correctness of the genealogy is not challenged. There is no dispute that Garibulla left two sons Bhikan and Mahibulla. Plaintiffs Nos. 1 to 12 are the descendants of Bikan's branch, while the remaining plaintiffs are descendants of the four daughters of Mahibulla. Minazuddin, the deceased husband of Johuran Bibi was the son of Mahibulla. Both the Courts below have come to the concurrent finding that the five plots in dispute did not constitute the ancestral joint properties of Mahibulla. According to defendants. Minazuddin was the owner of the properties which he gifted to his wife Johuran Bibi in lieu of her dower. If it is found that Johuran did not get these properties in lieu of dower, Minazuddin would be deemed to be the owner of the properties, and on his death, under Muhammadan law 1/4th will devolve on his widow Johuran; 2/3rds on his sisters and the residue will go to the heirs of Bhikan.
On the other hand, if Johuran acquired title to these properties, none of the plaintiffs will have any right or interest therein and the alienation by her in favour of Sk. Doman, whose heirs subsequently transferred the same to defendants Nos. 1 and 2 will be valid. The trial court under issues Nos. 1, 2, 5 and 6 negatived the claim of title by plaintiffs to the suit lands as descendants of Garibulla which they tried to make out in the plaint. Though it did not accept the defendants' version that Johuran got them in lieu of dower, it found that by adverse possession Johuran and after her by the purchasers the title of plaintiffs was extinguished. The lower appellate Court, while not accepting the defendants' version that Minazuddin gifted away the suit lands after purchase to his widow Johuran Bibi came to the definite finding that Minazuddin purchased the same in the name of his wife towards her dower debt.
Admittedly, Minazuddin died shortly before completion of the current settlement operations and the suit plots have been recorded in the name of Johuran Bibi. The evidence of plaintiff No. 1 examined as P. W. 7 clearly shows that Minazuddin purchased lands in the name of his wife towards dower debt. He also admits that Sk. Kina, father of plaintiffs Nos. 1 to 4 got all his ancestral properties recorded in his name and after completion of the settlement operations plaintiffs got the records and found that Johuran was recorded in respect of the lands purchased by Minazuddin. They had also some discussion regarding it, but never took any further action. Relying on this very strong circumstance, the lower appellate Court has accepted the defendants' version that Minazuddin purchased the suit lands in the name of Johuran in lieu of her dower. So far as possession is concerned, it has also on the evidence come to a catcgorial finding that plaintiffs were never in possession of the properties, but Johuran and after her defendants Nos. 1 to 5 were in possession.
It has been argued that in Paragraph 15 of the lower appellate Court judgment an error of record has been committed by Stating that neither in the plaint nor In evidence plaintiffs claim to be in possession of three plots 721, 723 and 727 but confine their claim of possession to plot No. 717 and right of passage over: plot No. 718. No doubt, in the plaint a general assertion of possession has been made in respect of the plots, but there has been emphasis so far as possession of plots Nos. 717 and 718 is concerned by saying that in the former vegetables were grown and partly used as a threshing floor, while the latter was used as a passage from the house to the public road. Both the Courts below have discussed the oral evidence in detail in determining the question of possession and come to the definite finding that plaintiffs have failed to prove to have been in possession of these plots.
The finding of Minazuddin having purchased lands in the name of Johuran in lieu of her dower and the finding about possession are both findings of fact dependent on appreciation of evidence and not open to be agitated in second appeal. When it has been found by the lower appellate Court that Johuran acquired the suit properties as a result of purchase of the same by her husband in lieu of dower, the question of her prescribing title by adverse possession does not arise. Therefore, the lower appellate court has rightly observed that 'in this view of the matter, it is not at all necessary to consider the question whether or not Johuran Bibi had acquired title to the disputed lands by adverse possession'. On this finding, the question of plaintiffs being in possession as co-owners does not arise. Thus, the contentions advanced are not sustainable. The appeal by plaintiffs therefore must fail.
6. Respondents Nos. 1 and 2 have filed cross-objection against the finding of the lower appellate court that plaintiffs Nos. 1 to 4 have a right of way over plot No. 718. This finding is challenged on the ground that in absence of pleading that plaintiffs have got a right of way over a specific portion of plot No. 718, the courts below had no jurisdiction to grant such a right over any particular strip of land, and that the courts below have failed to notice admissions by appellants in evidence that there is no definite track or passage over plot No. 718. It is further urged that the trial court gave a finding on issue No. 3 to the effect that plaintiffs have acquired a prescriptive right of way, while the lower appellate court has granted the right of way as an easement of necessity which is not the case pleaded by plaintiffs and is based on wrong inference of facts and law. In addition, it is contended that when there is evidence that as more than one way is open to the appellants for having access to the public road, a right of passage as an easement of necessity cannot be granted,
7. It is not necessary to deal with the various grounds raised by the defendants in cross-objection, as prima facie the finding of the lower appellate court that plaintiffs are entitled to a right of way onplot No. 718 as easement of necessity is contrary to law and also not a case pleaded in the plaint. The trial court in its finding under issue No. 3 held that plaintiffs acquired a prescriptive right of way by their possession and user for more than twenty years till the obstruction was created in the year 1953. On the other hand, the lower appellate court does not appear to have accepted this finding and has referred to the report of the commissioner and his evidence and observed that 'in view of the commissioner's report that there is no other passage for going to the main road from the house of plaintiffs Nos. 1 to 4 except on plot No. 718, I think, plaintiffs Nos. 1 to 4 are entitled to a right of way as decreed by the trial court as an easement of necessity'.
As stated above, this finding cannot be maintained. Firstly in the plaint, a right of way as an easement of necessity has not been claimed by the plaintiffs. Secondly, an easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more separate and distinct tenements and any of these tenements (whether transferred or reserved) is so situated that it cannot be used at all without the enjoyment of a certain privilege on any other of such tenements. In such circumstances, law presumes the implication of a grant or reservation of such a privilege in favour of the person holding the tenement. In other words, to constitute an easement of necessity, a single tenement must have been divided into two or more separate and distinct units and the situation of one of them is such that it cannot be used or enjoyed without a certain privilege like a right of way, etc. over another.
In the present case, it is neither party's case nor is there any evidence that plot No. 719 on which plaintiffs Nos. 1 to 4 claim to have their house and plot No. 718 over which the right of way as an easement of necessity has been granted at any time constituted a single unit, and as a result of the subsequent transfer, bequest or partition, the unit constituting plot No. 719 on account of its situation was deprived of user without enjoyment of the privilege, i.e., a right of way over plot No. 718. Therefore, the finding of the lower appellate court that plaintiffs Nos. 1 to 4 are entitled to a right of way over plot No. 718 as an easement of necessity cannot be sustained and is liable to be set aside.
8. For the reasons discussed above, the appeal filed by the plaintiffs is dismissed with costs. The cross-objection filed by defendants Nos. 1 to 2 is allowed but without costs. The decree granting a right of way to plaintiffs Nos. 1 to 4 over plot No. 718 is set aside.