1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Huda in a suit instituted by the plaintiff-respondent for recovery of certain plots of land from which, he alleges, he has been disposes by the defendants and also for a declaration that the defendants have no right of way over certain other plots of land. The Court of first instance dismissed the suit. Upon appeal the Subordinate Judge decreed the suit. On appeal to this Court the decree of the Subordinate Judge, in so far as it establishes the title of the plaintiff to the plots claimed by him, was not controverted. But it was argued that the Subordinate Judge had erroneously negatived the right of way claimed by the defendants. Mr. Justice Huda held that the contention of the defendants in respect of the alleged right of way was not tenable and confirmed the decree of the Subordinate Judge. On the present appeal the judgment of Mr. Justice Huda has been assailed on the ground that the principle applicable to cases of reservation of casements has not been correctly applied to the facts of this litigation.
2. It appears that there was a plot of land which was originally held by the defendants as tenants, The land was sold in execution of a decree against them and was purchased by the landlord. In the year 1901 the plaintiff took settlement of the western plot which abutted on a road, and in the year 1906 the defendants took settlement of the eastern plot, It is with regard to this eastern plot that the defendants now contend that they are entitled to have access to the road across the western plot settled with the plaintiff, Mr. Justice Huda has held that the defendants cannot rely on any rights their grantors might have possessed before the execution sale, which extinguished their title, nor sun they claim a right of way against the plaintiff under Section 26 of the Indian Limitation Act, because they obtained the settlement within a period of less than 20 years from the date of the institution of the suit. This view is unquestionably right; the decisions in Suffield v. Brown (1863) 4 De G.J. & S. 185: 33 L.J. Ch. 249 : 3 N.R. 340 : 10 Jur. (N. s.) 111 : 9 L.T. 627 : 12 W.R. 356 : 46, E.R. 888;146R.R. 267 and Croseley v. Lightowler (1867) 2 Ch. 478 : 36 L.J. Ch. 584 : 16 L.T. 438 : 15 W.R. 801 show that where the owner of two tenements or of one tenement divided into two parts transfers one part, he puts an end by contract to the relation which he had himself treated between the land sold and the land retained. He discharges the land so sold from any burden imposed upon it during his joint occupation; the condition of such land is thenceforth determined by the contract of alienation, and not by the previous user of the former common owner during his common ownership, The question thus inevitably arises; whether the defendants have an easement of necessity, because, where a man disposes of part of his land and that part affords an accommodation to the part retained, that accommodation will upon severance ripen into an easement, if it be such as to be absolutely necessary for the enjoyment of the part retained and the accommodation be such that it is capable of constituting the subject matter of an easement. According to Mr. Justice Huda, inasmuch as it has been found that after the settlement with the plaintiff, no khas land of the landlord remained and that the settlement included the whole land to the west, the landlord could not, when he afterwards settled the eastern plot with the defendants, grant to them expressly or by implication a passage over the land which he had already settled with the plaintiff. This view is assailed by the appellant, and the crucial question is, whether when the landlord settled the western plot with the plaintiff in 1901 there was an implied reservation of an easement of necessity in respect of the eastern plot retained by him, We are of opinion that this question should be answered in the affirmative, provided that it is established that at the time of the grant there was a way of necessity in respect of the eastern plot which was retained by the landlord.
3. The principle applicable to cases of this character was lucidly explained by Thesiger, L.J., in the case of Wheeldon v. Burrows (1879) 12 Ch. D. 31 : 48 L.J. Ch. 853, 41 L.T. 327 : 28 W.R. 196 in the following terms 'We have had a considerable number of cases sited to us and out of them I think that two propositions may be stated as, what 1 may call, the general rules governing cases of this kind. The first of these rules is that on the grant by the owner of a tenement or 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 of the property granted....The second proposition 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. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are certain other exceptions, to which I shall refer before I close my observations upon this case. Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense--the, that a grantor shall not derogate from his grant.' The distinction thus pointed out between easements which may be claimed by the grantee and easements which are reserved by the grantor has not always been recognized. In Pyer v. Carter (1857) 1 H.& N. 916 : 26 L.J. Ex. 258 : 5 W.R. 371 : 156 E.R. 1472 : 28 L.T. (o.s.) 371 : 108 R.R. 896 implied grants and implied reservations of apparent easements were put on the same footing, but this was disapproved of in Suffield v. Brown (1863) 4 De G.J. & S. 185: 33 L.J. Ch. 249 : 3 N.R. 340 : 10 Jur. (N. s.) 111 : 9 L.T. 627 : 12 W.R. 356 : 46 E.R. 888;146R.R. 267 and Wheeldon v. Burrows (1879) 12 Ch. D. 31 : 48 L.J. Ch. 853, 41 L.T. 327 : 28 W.R. 196 and it was held that if a grantor of part of his estate wishes to reserve an easement over it for himself he should do so in express terms, as such reservation cannot be implied, being in derogation of his grant. The same view was maintained in the case of Taws v. Knowles (1891) 2 Q.B.564;60 L.J.Q.B. 641 : 65 L.T. 124 : 39 W.R. 675 : 56 J.P. 68, in which the owner of a house and garden built a seconds house in the garden and walled off a strip of the garden by the second house to serve as a special way from the old house to a back street and used it continually: yet, because on separation of the two houses, when the strip with the path rent with the new house, no express reservation was made of the right of way from the old house, the right was disallowed. In Thomas v. Owen (1688) 20 Q.B.D. 225 : 57 L.J.Q.B. 198 : 58 L.T. 162 : 36 W.R. 440 : 62 J.P. 516, however, a reservation of a right of way was allowed to be implied without any words of reservation in the grant as the condition and direction of the road as well as the long: user of it for the sole benefit of the part of the estate reserved was considered proof positive that the grantor of the servient tenement must have intended to reserve the right of way. Thus the old rule that upon severance of an estate and in the absence of any express grant, those quasi easements which the owner of the entirety has been accustomed to use for the beneficial enjoyment of the part sold over the part retained, if of an apparent and continuous character, will be given to the grantee by implied grant, but that similar easements will not be reserved for the benefit of the part retained by implied reservation, must be deemed to have been shaken, if not 'almost swept away.' But, whatever divergence of opinion there may be upon the general doctrine of the creation of easements by implication of law and the applicability of the principles that a man shall not derogate from his grant and a grant shall always be construed most strictly against the grantor, there is weighty authority for the view that where an owner grants part of his land and retains other parts himself, although the grantee may be in a more favourable position than the grantor in so far as the grantee may claim all easements necessary for reasonable enjoyment of the part so granted, the grantor may claim that all easements of necessity,' without which no enjoyment at all would be possible, should be raised by implication in favour of the part retained: Richards v. Rose (1853) 9 Ex. 218 at p. 221 : 2 C.L.R. 311 : 23 L.J. Ex. 3 : 17 Jur. 1036 : 96 R.R. 675;156 E.R. 93, Union Lighterage Co. v. London Graving Dock Co (1902) 2 Ch. 557 at p. 573 : 71 L.J. Ch. 791 : 87 L.T. 381 : 18 T.L.R.754., Ray v. Hazeldine (1904) 2 Ch. 17 at p. 20 : 73 L.J. Ch. 537 : 90 L.T. 703, Gordon v. Ogilvie (1899) 15 T.L.R. 239, Sohwann v. Cotton (1916) 2 Ch. 459 : 85 L.J. Ch. 689 : 115 L.T. 168 : 60 S.J. 654, Derry v. Sanders (1919) 1 K.B. 223 : 88 L.J.K.B. 410 : 120 L.T. 194 : 63 S.J. 115 : 35 T.L.R. 105, This is also the result of the provisions of the Indian Easements Act Section 13, Clause (a), provides that where one person transfers immoveable property to another, if an easement in other immoveable property of the transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to such easement. Illustration (6) is to the following effect: 'A, the owner of two fields sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B A is entitled to a right of way, for agricultural purposes only, over B's field to the field retained.' The Indian Easements Act no doubt is not applicable to the case before us; but, as was pointed out by Mr. Justice Banerjee in Kadambini Debi v. Kali Kumar Halder 26 C. 516 : 3 C.W.N. 409 : 13 Ind Dec. (N. s.) 932, since there is no enactment of the Legislature applicable to a case like this, the question raised will have to be answered with reference to the principles of Justice, equity and good conscience; and the Courts in this country have considered the rule of English Law known as the doctrine of implied grant of easements upon severance of tenement, as in accordance with justice, equity and good conscience. The conclusion follows that the view taken by Mr. Justice Huda cannot be supported.
4. The appeal must consequently be allowed, the judgment and decree of Mr. Justice Huda set aside and the case remitted to the Subordinate Judge for consideration of the question raised in the eighth issue Which was framed in the following terms whether the defendants have a right of way as claimed by them over the land as shown in the sketch annexed to the written statement. The Subordinate Judge will first consider whether the defendants have an easement of necessity. If the question is answered in the affirmative, the Subordinate Judge will next consider the location of the way. As the decree of the Subordinate Judge upon the question of title has not been assailed and must stand confirmed, there will be no order as to the costs of this appeal.