1. The question in this second appeal is, is the plaintiff entitled to irrigate his fields A, B and C with water from the 1st defendant's field marked F and G in the plan through slits or openings at points H and J.
2. It is contended before us that this is not a case of easement of necessity and the plaintiffs cannot claim the right to irrigate their fields with water from the 1st defendant's fields. The plots A, B, C, F and G which are Zemindari zeroyoti wet lands belonged to one Gurappiah who made a gift of plots, A, B and C to his step mother Veeramma for her maintenance. The plaintiffs claim under Veeramma. 1st defendant is the son of Gurappiah and the 2nd defendant is his lessee. It is proved that during the life time of Gurappiah and for at least 15 years from the date of the gift to Veeramma, the plots A, B and C were irrigated with water from F and G. The plaintiffs claim the right to irrigate their fields as was done till the defendants 1 and 2 obstructed them from irrigating their fields, and the defendants dirty that the plaintiffs fields were ever irrigated an alleged. The District Munsif found that water was taken for irrigating the plots A, B and C over the plots marked F, and G and through the openings marked H and J till the date of obstruction and that it could not be that A, B and C were all along irrigated with water taken direct from the irrigation Channel D; this finding was affirmed by the Lower Appellate Court. It is urged that the plaintiffs cannot claim a right to irrigate their lands with water from the plots F and G as an easement of necessity, that there is an irrigation channel marked D in the plan adjoining plot A from which the plaintiffs could water their fields and that in order to claim an easement of necessity it must be shown that it is absolutely necessary to have the easement for enjoyment of the land and if it is a question of convenience, or better enjoyment of the dominant heritage, such an easement cannot be claimed.
3. Mr. Satyanarayana for the appellants relies strongly on Krishnama Raju v. Marraju 15 M.L.J. 255 and Union Lighterage Co. v. London Graving Dock Co. (1902) 2 Ch. 557. In Krishnamaraju v. Marraju 15 M.L.J. 255 the learned Chief Justice and Davies, J., held that the word 'necessary' in Clause (e) of Section 13 of the Easements Act must be construed in its ordinary sense. They observe at page 497. 'In this case we are of opinion that Clause (e) of Section 13 of the Indian Easements Act, 1882, does not admit of the construction which has been placed upon it by the lower Courts. We think the word 'necessary' must be construed in its ordinary sense. If A has a means of access to his property without going over B's land, A cannot claim a right of way over B's land on the ground that it is the most convenient means of access. The law of England as to the cases in which a person can claim an easement of necessity so as to give him a right of way over another man's land is now well settled, and there is nothing to indicate that the Indian Legislative intended to adopt a different principle.' * * * * * * * * It is admitted that the respondent has a means of access to his property without going over the appellant's land, and we must accordingly hold that he has no easement of necessity. He is not entitled to an easement under Clause (f) of the section since the easement which he claims is not apparent and continuous. 'In Union Lighterage Co. v. London Graving Dock Co. (1902) 2 Ch. 557 Stirling, L.J., observes at page 573: 'In my opinion an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property. ' In the present case there is no finding that the plaintiff's land could not be at all irrigated except through the vents H and J. The plaintiffs attempted to irrigate their fields A, B and C from the channel D directly, but were obstructed by the defendants 5, 4 and 5, and the District Munsif dismissed the suit against them on the ground of misjoinder of parties and causes of action. Oldfield and Spencer, JJ., before whom the second appeal came on for hearing on 3-4-22 directed the appellants to make the defendants 3, 4 and 5 parties to the appeal which has been done, but they have not chosen to appear though they have been served with notice of appeal. It is not necessary in the view we take of this case, to decide whether the plaintiff can claim to irrigate their fields with water from the defendant's lands as an easement of necessity. We think the plaintiffs case falls within Clause (b) of Section 13 of the Easements Act which is in the following terms: 'If such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.' The last but one paragraph of Section 13 puts it beyond doubt that only cases covered by Clauses (a), (c) and (e) are called easements of necessity. Even if it be held that absolute necessity should be shown for claiming a right under Clauses (a), (c) and (e) we do not think such necessity should be made out to bring the plaintiffs' case within Clause (b). An easement apparent and continuous and necessary for enjoying the portions served from the unity of ownership will pass to the transferee unless a contrary intention is expressed or implied in the instrument of transfer. in Watts v. Kelson 6 Ch. Ap. 166 Sir George Mellish, L.J., in delivering the judgment of the Court observes: 'It was objected before us on the part of the defendant that on the severance of two tenements no easement will pass by an implied grant except one which is necessary for the use of the tenement conveyed, and that the easement in question was not necessary. We think that the water course was necessary for the use of the tenement conveyed. It was, at the time of the conveyance, the existing mode by which the premises conveyed were supplied with water: and we think it is no answer that if this supply was cut off possibly some other supply might have been obtained. We think it is proved on the evidence that no other supply of water equally pure could have been obtained. We are also of opinion, having regard to the general words in the conveyance that the language of the conveyance was sufficient to pass the right to the water-course even if it was not necessary but only convenient for the use of the premises.' The observations of Stirling, L.J., in Union Lighterage Co. v. London Graving Dock Co. (1902) 2 Ch. 557 are important in this connection.' on this point the governing authority is Wheeldon v. Burrowes 12 Ch. D. 31 decided by James, Baggally and Thesiger, L.Js., by the last of whom the Judgment of the Court was delivered. In it two rules are laid down in the following terms. The first of these rules is that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which of course I mean quasi easements), or in other words all those easements which are necessary to the reasonable enjoyment o the property granted and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second is that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant.' The distinction between Clauses (1), (c) and (d) of Section 13 and Clause (b) is clearly brought out in the judgment of Jenkins, C.J., and Chandavarker, J., in Chhotalal v. Devshanker 3 Bom. L.R. 601. They observe at page 602: 'It is true that the lower appellate Court has found that there was no necessity, but it is clear that the Judge in so deciding had in mind an absolute necessity such as is indicated in Section 13(1)(c) and (d), and not a qualified necessity such as is contemplated in Section 13 (b). This distinction is obvious; thus, the right of way may not be absolutely necessary and yet necessary for the purpose of enjoying the property as it was enjoyed when a transfer of it took place. The existence of this last necessity has to be determined by reference to the prior user. Besides the condition of this qualified necessity, an easement must, for the purpose of coming within Section 13(b) possess the qualities of being apparent and continuous.' There is a concurrent finding of the lower Courts in this case that the plaintiffs' plots were all along watered through the openings or vents at H and J, and the existence of these vents is sufficient evidence of an apparent, continuous and necessary easement.
4. It is contended that the existence of the vents would not imply that the easement was a continuous one, and Section 5 is referred to in this connection. The vents might be closed for the sake of convenience after irrigating the plaintiffs fields as a temporary measure, just as a drain may be closed for clearing silt or for repairs. An act done for the proper enjoyment of the easement or in the course of the enjoyment of an easement which is continuous would not make the easement a non-continuous one. The existence of the vents is for enjoyment of the easement, and that being found as a matter of fact it is unnecessary to pursue this discussion further. We have no hesitation in holding that the plaintiffs have established the right to irrigate their fields A, B and C with water from the 1st defendant's plots F and G and through the vents at H and J.
5. The second appeal fails and is dismissed with costs.