P.R. Gokulakrishnan, J.
1. The defendant is the appellant. The suit was for declaration of the plaintiff-respondent's title to the suit item, and for injunction restraining the appellant from interfering with the respondent's peaceful possession of the suit property.
2. On 30th June, 1958, the respondent-plaintiff purchased the suit property and has been in possession and enjoyment thereof ever since. The suit item is of an extent of 1.52 acres in S. No. 248/2-B, Chikkavasampalayam village. On 12th May, 1964 the defendant trespassed into the same and attempted to lay a road 30-feet wide. On these allegations, the respondent brought the suit for the said reliefs.
3. The appellant-defendant contended that originally S.No. 248/2-B, of an extent of 2.06 acres, which was divided into a number of house-sites, belonged to one Subbiah Chetti. He left space for a road for giving access to the house-sites. On 1st May, 1945 he sold seven sites to one Guruswami Naicker, specifically mentioning a 30-feet road on the south of the sites. On 29th October, 1962 Guruswami Naicker sold the entire property to one Thirumakkal, the mother of the defendant, and, in a partition made on 15th May, 1963 this was allotted to the defendant. The remaining plots were sold by Subbiah Ghetti to the plaintiff on 30th June, 1958. This 30-feet road is demarcated by masonry basement wall. In 1952, Thirumakkal applied to the Municipality for construction of a building in the first block, showing the layout of the road. The plaintiff and his predecessors were using the road as access to their plots. While the defendant wanted to re-lay the road, the plaintiff obstructed it. There is no other access to the remaining plots of the defendant. The original vendor himself lost his title to the 30-feet road since 1945. Now, the plaintiff cannot claim any right in this road. All the owners of the plots abutting the 30-feet road are entitled to this 30-feet road. By the grant of the original owner, this has become the common property of the owners of the sites abutting the road. The defendant has also perfected his right by prescription.
4. The trial Court held that the defendant has acquired the right to use the road, that the vendor of the plaintiff had divested himself of his right over the road and that the plaintiff cannot claim any title thereto. He also found that the defendant has perfected right to it by prescription. On this view, the trial Court dismissed the suit.
5. On appeal, the Subordinate Judge, Coimbatore, on a consideration of the documents, held that the plot covered by the proposed road was not sold to the predecessor-in-interest of the defendant, that there was also nothing to show grant of an easement right to use the 30-feet road, given to the predecessor-in-interest of the defendant and that it was for the defendant to provide access to the vacant site through his own site. The lower appellate Court has also observed that Subbiah Chetti might have left out a 30-feet road, that 'there is nothing to show that the 30-feet road was left for the benefit of the property sold to the defendant's predecessor-in-interest' and that 'the idea to leave 30-feet road was to benefit only the remaining portion'. The lower appellate Court has also observed that road had not been formed, that the said sites were not intended to be north-to-south sites to which access could be had from the said 30-feet road, that there were east-to-west sites with access from the main road and that the defendant could not convert them into north-to-south sites and claim the road. It has been further held that it is not possible to hold that the plaintiff should be restrained from preventing the defendant from using the said road in question. On these observations and findings, the lower appellate Court allowed the appeal and decreed the suit as prayed for.
6. Aggrieved by the judgment and decree of the lower appellate Court, the defendant has preferred this second appeal.
7. Thiru D. Ramaswami Ayyangar, the learned Counsel for the appellant, submitted that there is an implied grant of easement already over the 30-feet road by the original owner and the same has been confirmed by the various documents produced in this case. The learned Counsel further submitted that the lower appellate Court has completely gone Wrong in not properly appreciating and applying the law of implied grant of easement despite the fact that the documentary evidence on record makes it clear that such a right is conferred. According to the learned Counsel, there is absolutely no warrant for the presumption that the 30-feet road might have been left for the benefit of the property sold to the plaintiff, and not for that of the defendant.
8. Exhibit B-1 is the original sale deed executed by Subbiah Chetti in favour of Guruswami Naicker on 1st May, 1945. This comprises an extent of 54 cents. This extent was divided into 7 sites by Subbiah Chetti and as such divided sites, the property was sold under Exhibit B-i to Guruswami Naicker. The description of the property is clear that the 7 sites were divided for the purpose of erecting buildings; and the property measures 354-feet east-to-west and 53-feet north-to-south. The important recital in the description is in regard to the southern boundary, which is mentioned as 'the east-to-west 30-feet road left by the vendor'. The next document Exhibit B-2 is a sale deed by the vendee under Exhibit B-1 to Thirumakkal, the mother of the appellant. In this sale deed also, it has been recited that there are 7 sites, divided for the purpose of construction of houses, and the property consisting of the 7 sites, is bounded on the south by Subbiah Chetti's house and east-to-west 30-feet road. Exhibit B-2 is dated 29th October, 1952. Exhibit B-10 is a registration copy of the sale deed executed by Subbiah Chetti in favour of one Janakiraman. The vendor is the same as that under Exhibit B-1; and this sale deed is in respect of his other properties. Exhibit B-10 is dated 6th November, 1952. In this sale deed also, there is reference in the description of the property, to the east-to-west 30-feet road. Exhibit A-21 is a letter from Thirumakkal to the Municipality agreeing not to build any construction on the other plots till the formation of the 30-feet road. This is dated 20th December, 1952. On 30th June, 1958, under Exhibit A-2 Subbiah Chetti sold the lands adjoining those purchased by Guruswami including the 30-feet road left by him under Exhibit B-1 to Srinivasalu Naidu, the plaintiff. The description of the property sold under Exhibit A-2 to the plaintiff mentions that the same is south of Thirumakkal's building and open space. From this, the respondent-plaintiff would want to infer that he purchased property including the 30-feet road mentioned in Exhibits B-1, B-2 and B-10.
9. Exhibit B-3 dated 15th May, 1963 is the deed of partition in the family of Thirumakkal in and by which Govindarajulu Chettiar got the sites purchased by Thirumakkal under Exhibit B-2. As already stated, Thirumakkal is the mother of the defendant. In this partition deed, the description of the property allotted to the defendant is clearly to the effect that the same is north of Subbiah Chetti's house and the east-to-west 30- feet road. Under Exhibit A-15 the defendant applied to the Municipality for sanction to construct a lorry-shed in one of the plots allotted to him under Exhibit B-3. But under Exhibit A-17, sanction was refused for construction on the ground that the 30-feet road has not been formed. In Exhibit A-17, there is a reference to the fact that site No. 7 has access from the main road to the 30-feet road.
10. From all these documents, Thiru D. Ramaswami Ayyangar stated, it is clear that there is on implied grant of easement over the 30-feet road. He cited Ratanckand Chordia v. Kasim Khaleeli : (1964)1MLJ293 , wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is a pity that the lower appellate Court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law.
11. Annapurana v. Santosh Kumar : AIR1937Cal661 , also makes it clear that in law implied grant can be inferred and lays down that grant can be presumed from the description of boundaries in the conveyance which mentions the same to be a common passage.
12. In Kuppakkal v. Mathan Chettiar 1, the facts were: The owner of a block of a vacant land sold a portion thereof as a building site to A. In the conveyance in favour of A the parcel of land sold to him was described as bounded on its southern side by a pathway intended to be set apart by the vendor. Shortly after the sale to A, the vendor conveyed the remainder of the block including the site of the intended pathway to B, who refused to allow A a right of way over his land. On those facts, this Court held that A was entitled to a right of way on B's land along the intended pathway and that neither the vendor nor anybody claiming under him could dispute A's right of way.
13. Thiru M.S. Venkatarama Ayyar, the learned Counsel for the respondent, stated that there is absolutely no right created in favour of the defendant under Exhibits B-1, B-2 and the various other documents to have a right of way over the alleged 30-feet road. He referred me to the description of 'one tkakku' in Exhibit B-1, the sale in favour of Guru-swami, and urged that the whole plot has to be taken as one site and should not be considered as different sites. According to learned Counsel, the description of the property in this document by the original owner Subbiah Chetti is 'the east-to-west 7 sites', and if the 7 sites were described as the north-to-south 7 sites, it can be inferred that that there must be opening into the road on the south, but since it is mentioned as 'east-to-west 7 sites' there cannot be any inference that the sites have access to the 30-feet road on its south. He also sought to distinguish the decisions in Ratanchand Chordia v. Kasim Khaleeli : (1964)1MLJ293 and Kuppakkal v. Mathan Chettiar : (1924)47MLJ477 , on the ground that they are cases where the buildings on certain sites cannot have access except through the disputed opening. According to the learned Counsel, the appellant can as Well leave an opening in his land, construct suitable buildings and give access to the houses he may put upon the sites; as it is, the defendant has opening on the Ooty-Coimbatore road and as such he cannot have openings on the south.
14. In the text book 'Gale on Easements', thirteenth edition at page 102 it has been stated thus:
A conveyance or other disposition of land will operate 'to create an easement over other land' of the conveying party if the general words imported into the conveyance by Section 62 of the Law of Property Act, 1925 (or actually inserted), can, in the light of the circumstances at the time of the conveyance, be fairly said to include it. This result arises from the conveyance itself, independently of any preceding contract.
From such propositions, it is clear that the contention taken by Thiru M.S. Venkatarama Ayyar cannot be sustained. The documents ranging from 1945 to 1952 make out very clearly that there is opening on the south of the sites in question, that is the 30-feet east-to-west road. It is too much to expect that the purchaser of the 7 sites measuring in all 354-feet east-to-west and 53-feet north-to-south, must have opening only on the eastern side. It could not have been visualized that with the breadth, of 53-feet north-to-south a building having a length of 354-feet east-to west, will be constructed on the land sold under Exhibit B-1. The word 'tkakku' has no such significance, asmuch as the word 'jaga' occurring in some of the documents. The intention of the original owner is. clear that there must be 7 sites and it has, been made clear in these documents that the 7 sites are intended to be house-sites. In such case, the reasonable interpretation can only be that the house-sites are intended to be independent and are also intended to have access to the 30-feet road on the south, mentioned in these documents. While the vendor under Exhibit B-1 had rights over the southern property sold under Exhibit B-1 including the 30-feet road, he has specifically intended to give space for the 30-feet road. The 30-feet southern road running east-to-west was intended to be the access even to the vendees under Exhibit B-1. Refusal by the Municipality to sanction the plan until the 30-feet road is formed also seems to visualize the necessity and importance of having this access for the seven sites purchased under Exhibits B-1 and B-2. It would -also be difficult for the future vendee of the respective plots sold under Exhibit B-1 to have access to the main road unless the 30-feet space intended to be left out is made available. It is too much to say that the vendee under Exhibit B-1 has to further leave another 30-feet space or some portion in the lands purchased for the purpose o giving access to other intended purchasers of the plots. It is unnecessary that there should be a pucca road formed, for the purpose of giving the right to the defendant to claim the 30-feet road. -Formation of a pucca road can take place at any time. But there must be space available for such formation. From the case-law cited by Thiru D. Ramaswami Ayyangar and on the interpretation of the documents in this case, it is very clear that there is an implied grant in favour of the vendees and they must enjoy access through the 30-feet road left in Exhibit B-1.
15. In this view, I am not agreeing with the conclusion arrived at by the lower appellate Court which has missed to apply the clear proposition of law as regard implied grant. The lower appellate Court has also failed to properly interpret the various documents in their proper perspective, which, if 'done, clearly spell out an implied grant in favour of the purchasers of the sites comprised in Exhibit B-1. The lower appellate Court has not at all applied its mind to this proposition of law except formulating the points for determination as to whether the defendant has right to the pathway and as to whether he has perfected the right to the pathway by prescription.
16. In view of my discussion above and the conclusion arrived at by me, I am of the view that the defendant has the right to use the road which is south of his land and which road has been mentioned in Exhibits B-1 and B-2. In the circumstances, the second appeal is allowed, the decree and judgment of the lower appellate Court is reversed and that of the trial Court is restored. There will be no order as to costs in this second appeal. No leave.