R.S. Bachawat, J.
1. The plaintiff is the owner of the house and premises at No. 146/2, Old China Bazar Street, Calcutta, formerly being portion of premises Nos. 142, 143, 144, 145 and 146, Old China Bazar Street. The defendants 1 to 5 claim to be the owners of the adjoining premises 141 to 145 Old China Bazar Street.
2. The root of the plaintiff's title is the return of the Commissioner of Partition dated 8-1-1885, in Suit Nos. 349, 360 and 363 of 1878 (Ex. A-2). By and under the return the house and premises Nos. 142, 143, 144, 145 and 146 Old China Bazar Street were allotted to the plaintiffs predecessor-in-title one Prannath Dutt. The return provided that the common passage in dispute being premises No. 146 Old China Bazar Street might be used by the said Prannath Dutt and one Kedareswar Dutt without any objection by the other of them and that both the parties would have the right to drain their respective portion that is to say the premises respectively allotted to them by underground drain through the common passage. Bose, J. has found that by the return the common passage wasallotted to Prannath and Kedarnath jointly. The plaintiff claims title through Prannath Dutt. The defendants 1, 2, 3, 4 and 5 collectively called the Dutt defendants claim title to the common passage through Kedareswar Dutt. The plaintiif claims that the plaintiff and defendants 1,2,3,4 and 5 have become the co-owners of the common passage. The plaintiff also claims that the parties have the right to drain their respective portion by underground drain through the common passage. The defendants 6, 7, 8 and 9 are tenants of portions of the open land on the common passage under the plaintiff and the Dutt defendants. The defendant No. 10 claims to be the purchaser of the shop of the defendants Nos. 6, 7, 8 and 9. The plaintiff has now constructed a new building on the premises No. 146/2 Old China Bazar Street. The Cprporation of Calcutta duly sanctioned the plan for the new building. In connection with the new building the plaintiff proposes to lay underground drain through the common passage. The plaintiff claims that it is obligatory on the defendants to render all facilities to the plaintiff for the laying of the passage and that in spite of demands the defendants 6 to 10 have unlawfully refused to remove the wooden platform constructed by the defendants on the portion let to them. The plaintiff claims a declaration of easement right to drain the plaintiff's premises underground through the common passage and consequential injunction and reliefs. Certain other reliefs in respect of the construction of the boundary wall on the eastern side of the plaintiff's premises were also claimed. There is no controversy in this appeal with regard to the right to construct the boundary wall. The plaintiff has been given full relief by the learned trial Judge, with regard to the boundary wall.
3. On a review of the materials on the record including the return Ex. A-2 the learned trial Judge came to the conclusion that the plaintiff is co-owner of and has Joint interest in the common passage in dispute along with the Dutt defendants. This finding has not been challenged in appeal.
4. The materials on the record show that the common passage is the only space through which drainage of the plaintiff's preimses No. 148/2. Old China Bazar Street can be laid in order to connect it with the main municipal drain in Old China Bazar Street and for this purpose french to the depth of 7ft. and of the width of about 3 ft. 6 inches has to be dug in the portion of the common passage along which the wooden platforms of the tenants are located. The french has to be excavated in the centre of this portion of the common passage and without removing the wooden platforms it is not practicable to excavate the said trench. This is the evidence of John Austin Parks who is the Chief Valuer of the Calcutta improvement Trust for 15 years and is now a partner of Messrs. Talbot and Co. and who has deposed in the trial Court on behalf of the plaintiff. His evidence was accepted by the learned trial Judge and we also accept his evidence and report.
5. The new building is a seven storied mansion and has a much larger number of privies, baths and basins than the older building which was partly one and partly two storied. The volume of discharge of effluents of the new building is necessarily much larger than that of the old building. It is necessary to lay new underground drains for the effective enjoyment of the new building. The existing pipe is not fit to carry its effluence.
6. The plaint is not very artistically drafted. The plaintiff has prayed for declaration of the right to drain the plaintiff's premises through the commonpassage as an easement. The plaintiff pleaded thatit is a co-owner of the common passage and also that it is entitled to drain its premises by underground drain and to lay underground drains through the common passage. It has been found that the plaintiff is a co-owner of the common passage part of which is let to tenants. The plaintiff cannot claim an eascmont over its own land. The question is whether the plaintiff is entitled to the right claimed as against the Dutt defendants as co-owner of the common passage and in view of the Return of the Commissioner of Partition Ex. A-2. The further question is whether in spite of the demise of a portion of the common passage the right claimed is reserved in favour of the plaintiff landlord as against the defendants 6 to 10. If the right claimed is found to exist the appropriate relief must be moulded accordingly.
7. Bose, J., held that the plaintiff has no right to construct or lay a new drain in the common passage as against the Dutt defendants though the laying of such drain may have become necessary by reason of the alteration of the size and character of the building at premises 142, 143, 144, 145 and 146 Old China Bazar Street. He held that as against the Dutt defendants the plaintiff is entitled only to the right of drainage granted in favour of the predecessor-in-interest of the plaintiff in respect of his respective 'portion,' that is in resoect of the building as it existed on premises 142, 143 144, 145 and 146 Old China Bazar Street at the time of partition and that the plaintiff has no right to increase the burden on the servient tenement that is to say the common passage. We are unable to agree with this ruling.
8. Bose, J. himself came to the conclusion that the plaintiff and the Dutt defendants are the co-owners of the common passage. As such there is no question of the common passage being a ser-vient tenement in respect of the premises owned by the plaintiff. The plaintiff is entitled to make full user of the common passage owned by it jointly with the Dutt defendants subject to any restrictions that may have been imposed with regard to such right of user by the return of the Commissioner of Partition. As co-owner of the common passage the plaintiff is entitled to lay underground drains through the common passage. That right is in no way limited by the return Ex. A-2. The plaintiff may lay underground drains in the common passage if the new drains do not interfere with the existing; drain and with the right of the other co-owners of the common passage to drain their house and premises by underground drains through the common passage. Even if the plaintiff were not a co-owner of the common passage and even if the plaintiff were entitled only to a right of drainage expressly conferred by Ex. A-2 over the common passage as a servient tenement such right of drainage is not a limited right in respect of the building existing at the time of the partition. The light of drainage given by the return is a right to drain by underground drain the 'portion' allotted to Prannath Dutt that is to say the house and premises 142, 143, 144, 145 and 146 Old China Bazar Street. The right of drainage so conferred is a general right of drainage of the house and premises at 142, 143,144, 145 and 146 Old China Bazar Street by underground drain and is not restricted to the existing house. There is no restriction on the right of the owner of the premises to build and rebuild thereon. It is not necessary to discuss this matter any further because Mr. Deb appearing on behalf of the Dutt respondents has formally conceded that the plaintiff vis a vis the Dutt defendants whom he represents is entitled to lay new underground drainthrough the common passage as claimed in theplaint.
9. The appeal has been contested strenuously by the tenant defendants Nos. 6, 7, 8, 9, and 10. They contend that the plaintiff has no right to law down the underground drain and no right to break open the surface for the purpose of laying the drain. They contend that the plaintiff has no right to disturb the quiet enjoyment and possession of the portion let. They rely on the principle that the landlord cannot derrogate from this grant.
10. It is to be seen that there is no grant of any sub-soil or underground rights to the tenant defendants. They are monthly tenants of the surface of the land only. Clearly there is no derrogation from the grant if the new underground drain is laid under the demised land without disturbing the possession of the surface by the tenants.
11. At the trial the defendants sought to make out the case that it was impossible to lay a new drain in the common passage. Bose J. has not accepted this case. The defendants' witnesses Hiran Kumar Sarkar and Chaudi Nag Chowdhury exaggerated things about the impossibility of laying a new drain as much as possible. The case of absolute impossibility of laying a new drain is an after thought and was set up at the hearing taking advantage of the absence of any evidence on the part of the plaintiff after the plaintiff's case was closed.
12. At the hearing the defendant also sought to make out a case that the existing drain and pipe line is sufficient to cany the affluents of the new building. The defendants sought to prove this case through the witnesses Hiran Kumar Sarkar and Chandi. Nag Chowdhury. The evidence of this witness on other points spoken to by them is exaggerated and has not been accepted by the learned trial Judge. We are of the opinion that the evidence of these two witnesses is unreliable and ought not to be accepted. These two witnesses speak as to the capacity ol the existing pipe line with regard to the discharge of water. These witnesses have not really applied their minds to the question of discharge of fifth which is liable to choke the pipe line. The older building was partly one storied and partly two storied. The new building is a seven storied building. The effluence of the new building is necessarily much larger than that of the old building. The sanctioned plan of the new building requires the laying of new underground drains. In the plaint the plaintiff distinctly pleaded that it is entitled to lay the underground drain through the common passage and that there was no other means for drainage of the plaintiff's premises No. 146/2, Old China Bazar Street. The report of Mr. John Austin Parks also clearly states that it will be impossible to provide drainage for premises No. 146/2, Old China Bazar Street through the common passage unless the existing timber shed which has been erected on the common passage is removed. This report was disclosed and inspection thereof was given to the defendants. The defendants knew what the plaintiffs case with regard to the drainage was. But still no stepes were taken to amend the written statement or to give a definite and clear indication of their case as to the sufficiency of the existing drain. The case of sufficiency of the existing drain was not clearly put to the plaintiff's witnesses. We have been informed that because of the obstruction by the defendants the plaintiff had to obtain a connection with the existing drain. Mr. Deb, learned counsel for the Dutt defendants informed us that the existing drain is liable to be choked at any moment if it is made to carry the affluents and filth of both the buildings. If that isso there is present danger to the entire drainage connection of the plaintiff's new building and of the building of the Dutt defendants. We are satisfied that there is no effective means drainage of the plaintiff's premises except by laying new underground drains under the common passage. The new building cannot be effectively enjoyed without having a sufficient new drain for the discharge of its faith.
13. The main point in issue in the appeal is whether in spite of the demise of a portion of the common passage to the tenant defendants there is a reservation in favour of the plaintiff of the right to enter and break open the surface of the demised land upon removal of the wooden platform belonging to the tenant defendants for the purpose of laying the new drain. The existence or non-existence of this right is a matter of inference from the proved facts on the record. There is no written lease.
14. The property demised is bare land surface on a common passage with existing underground drains used for draining premises belonging to the landlords. The tenure is monthly tenancy. There is no grant of subsoil rights. The drainage of the plaintiff landlord's premises is possible only through the demised land. We infer as a matter of fact that there was a reservation in favour of the land lord of the right to drain his premises by under ground drains through the demised land. The right of drainage carries with it all ancillary powers without which the right cannot be made effective. Thus the plaintiff has the power to enter and break open the surface of the demised land for the purpose of repairing and renovating the existing drains. This indeed is conceded by Mr. Mitter. It also seems clear that the plaintiff has the power of entering and breaking open the surface of the demised land for the purpose of laying new drains if the municipal regulations require it. The right of drainage in respect of the new building can be made effective only by laying new underground drain. In our opinion the plaintiff has therefore the right to lay new drains, The necessary ancillary powers of entering and excavating the surface of the demised land if necessary by removal of thewooden platform follows as a necessary consequence. The duration and extent of the exercise ofthis power must of course be not more than what is absolutely necessary for the purpose of laying the underground drain.
15. Bose, J. also seems to have been of the opinion that some right of drainage was impliedly reserved in favour of the plaintiff landlord. In dismissing the plaintiffs claim with regard to the laying of the underground drain he appears to have been influenced chiefly by two considerations. He ruled firstly that the implied reservation in favour of the lessors was only of the right of drainage in respect of the house or building in the State in which it existed at the time of the demise and not of a much larger building such as the new seven storied mansion. With respect we are unable to agree with this ruling. Bose J. himself appears to have recognised that the defendants have no right to object to or stop the additional volume of discharge of effluents from the new building through the existing drains. In our opinion, the right of drainage endures though the number of privies or the number of occupants or the volume of effluents of the plaintiff landlord's buildings is increased. Similarly, the right of drainage endures though a new and much larger building is erected on the premises belonging to the plaintiff landlord. In our opinion the plaintiff has a general right of drainage for all purposes of premises 142, 143, 144, 145 and146, Old China Bazar Street including the purposes of the new building erected on the premises.
16. Bose J. also ruled that the plaintiff has no right to lay any new drain through the demised land because the necessity of constructing this new drain did next exist at the time of the demise. With respect again we are unable to agree with this ruling. Bose J. himself seems to have recognised that the plaintiff has a right to lay a new drain if that becomes necessary by reason of any change effected by the municipality in their system of sewerage in the streets. We are of the opinion that the plaintiff has the right to lay now underground drains if and when that becomes necessary for making the plaintiff's right of drainage effective. Present necessity for the new drain is necessary as also sufficient measure of the right to lay the new drains.
17. If the right to lay the new drain is conceded as a necessary consequence the right to enter and excavate the surface, if necessary, by removal of the wooden platform follows. In fact this point does not appear to have been either raised or debated before Bose J.
18. The wooden platform belonging to the defendant was easily removable. The plaintiff distinctly pleaded that the tenants had constructed a temporary wooden platform in respect of the portions let out to them. There is no distinct denial of this averment in the plaint. Bose J. has found that the concrete platform which now exists on the demised land appears to have been constructed by the tenant defendants during the pendency of the suit. This finding is not challenged in this appeal. We agree with the finding. There is no question, therefore, of payment of any compensation to the tenant defendants for the removal of the concrete platform. Of course the rent of the demised land during the period of interruption of the possession of the tenant defendants must remain suspended. The plaintiff also must take all reasonable precautions for the purpose of protecting the existing drain and the northern wall of the common passage.
19. Several decisions on the question of construction of grants of easements and of reservations were cited at the Bar in course of the hearing of the appeal. When the grant or the reservation is made by a written instrument the ambit and extent of the easement and of the right reserved is a matter of construction of the instrument. The easement or the right reserved is not necessarily restricted to the particular purpose of the adjoining property for which it is required on the date of the grant or the reservation. On a true construction of the written instrument the casement or the right of easement granted or the right reserved may be for all purposes of the adjoining property including purposes not existing on the date of the instrument. Thus it was held in White v. Grand Hotel, Eastbourne, Ltd., (1913) 1 Ch D 113 that a right of way granted for general purposes is not to be restricted to access to the land merely for such purposes as were reasonably required at the date of the grant and therefore a right of way for general purpose to a private dwelling house is not effected by the house being turned into a hotel. In the instant case the reservation of the right of drainage is not in writing. We have to look at the surrounding circumstances to find out the ambit and extent of the right reserved. It is of course legitimate to look at the purposes for which the drainage was required at the date of the demise. It is however not contended that the right of drainage so reserved is limited to the discharge of the effluents of the rooms and privies existing on the date of the grant and of the occupants then occupying the building. We cannot impute to the parties an intention of limiting theright of drainage to the existing building. We are unable to infer that the right of drainage is so limited. In our opinion the evidence on the record clearly points to the conclusion that the right of damage is general and is not limited to the purposes of the building existing on the date of the demise.
20. We allow the appeal and set aside the judgment and decree in so far as it dismissed the plaintiff's claim with regard to prayers (a), (d) and (e) of the plaint and a portion of prayer (c) of the plaint relating to injunction in respect of the right of drainage. We also set aside the judgment and decree in so far as it directs the plaintiff to pay to the defendants Nos. 6 to 10 their general costs of the suits and two days' costs of hearing before the learned trial Judge. It is declared that the plaintiff is entitled to the right to drain the plaintiff's premises underground through the common passage being premises No. 146, Old China Bazar Street. There will be perpetual injunction restraining the defendants, their agents, servants and/or assigns from interfering with the plaintiff's aforesaid right of drainage through the said common passage. There will he mandatory injunction upon the defendants to render full and complete-facilities to the plaintiff, his agents, servants and contractors to lay the underground drain mentioned in the plaint. The defendants Nos. 6,7,8,9 and 10 are directed to remove and dismantle at their own cost the wooden platform and all structures belonging to them or any of them and erected on the common passage within three weeks from today. The plaintiff is directed to complete the laying of the underground drain with all reasonable dispatch and in any event within ten weeks from the date when the wooden platform and the structures aforesaid are removed from the common passage by the defendants Nos. 6,7,8,9 and 10. The defendants Nos. 6,7,8,9 and 10 will be at liberty to replace the wooden platform and the other structures at their own cost after the laying of the underground drain is completed or after the expiry of the aforesaid period of ten weeks whichever is earlier. The rent payable by the defendants Nos. 6,7,8,9 and/or 10 to the plaintiff and to the defendants Nos. 1, 2, 3, 4 and 5 will remain suspended during the period of the interruption of their possession.
21. We direct that the defendants Nos. 6,7,8,9 and 10 shall pay to the plaintiff appellant the general costs of the suit and two days' costs of hearing before the learned trial Judge, Save as aforesaid the parties will pay and bear their own costs of the suit. The defendants Nos. 6, 7, 8, 9 and 10 shall pay to the plaintiff appellant the costs of this appeal: The defendants Nos. 1,2,3,4 and 5 will pay and bear their own costs of the appeal. Save as aforesaid the judgment and decree of the learned trial Judge are confirmed.
22. Certified for two counsel. Prayer for stay is refused.
P.B. Mukharji, J.
23. I concur in the order proposed and the reasons given by my learned brother.
24. A person's right to drain his own premises by laying underground pipes in his own land is an incident of legal ownership. It is not an easement. The question of easement arises when two tenements are involved, the dominant to which the right belongs and the servient on which the obligation is imposed; Gale on Easement, 12th Edition p. 12. An easement is a right annexed to the land to utilise other land of different ownership and not the same land of same and joint ownership; Simonds Edition of Halsbury's Laws of England, Vol. 12, p. 519, Article 1123. As between theplaintiff and the defendants Dutt Chowdhuries whoare the co-owners of the common passage, no question of easement therefore arises in this case. The clear finding of the learned trial Judge on a mass, of evidence is that they are co-owners and have joint interest in the common passage being premises No. 146/2, Old China Bazar Street. Apart from any special agreement between co-owners, so long as one co-owner does not injure or affect the corresponding rights of his other co-owner, the right to drain their joint premises by underground pipes in their own lands is a right and incident of legal ownership and not one of assertion of any easement.
25. As between landlord and tenant questions of easement may certainly arise. When they do, they must be approached with great caution and with due regard to the terms of the grant, or tenancy, their express or implied reservations, the nature and facts of the particular tenancy and notice of any special fact or character of the property let out. In this appeal it is necessary to emphasise these special features and the particular facts. The first consideration is that the tenancy is only with respect to the surface land. The second outstanding consideration is the fact the land is on a common passage.
26. From the fact of tenancy of surface land flows the following consequences. The grant of such a tenancy of surface land does not carry with it the grant of the subsoil rights which remain with the landlords. Giridhari Singh v. Megh Lal Pandey, 44 Ind App 246 : (AIR 1947 PC. 163), Bijoy Singh Dudhoria v. Surendra Narayan Singh, 55 Ind App 320 : (AIR 1928 PC 234) and Bhupendra Narayan Sinha v. Rajeswar Prosad Bhakat and . It is, therefore, incontestable that in this case the right to lay underground pipe belongs to the plaintiff and the tenant as such of the surface land has no right to challenge the assertion of that right by the landlord.
27. The only easement right that can be claimed by a tenant in such a context of facts is a right of support of surface land; Gale on Easement, twelfth edition, p. 335. The only other right which the tenant can exercise or claim to assert is the right to have his possession undisturbed. The former right is an easement. The latter right is not but is only a covenant for quiet enjoyment which the landlord cannot disturb. It is necessary to bear that distinction in mind on the special facts of this appeal.
28. The easement of the right of support of the surface land can be claimed and enforced if there is or danger of subsidence. No case of actual or apprehended subsidence by the tenants has been made either in their pleadings or in their evidence.
29. The only question, therefore, left for the tenant, in the facts of this case, is a case of breach of the landlord's implied covenant for quiet enjoyment under Section 108(c) of the Transfer of Property Act. The scope and extent of the covenant for quiet enjoyment will be determined by the nature of the tenancy and the nature of the land and the surrounding circumstances material on the question of tenancy. The defendants 6 to 9, being Defendant Beggs are admittedly not in possession or in occupation of the surface Land on the common passage. They have admittedly parted with their possession or occupation of the land in favour of Defendant Saxena. Their possession or occupation, therefore is not in question. They at best have a right to rent from Saxena, defendant No. 10. No rent receipt is shown or produced to prove that Saxena paid any rent to defendant Beggs beingDefendants 6 to 9. The evidence of the only tenants witness Rabiul Huq Begg is unsatisfactory to the extreme on this point. He says that when he sold the business to Saxena, he told Saxena that as he had sold the business he would not have anything to live on. So he asked Saxena to give something every month and then he proceeded to say what Saxena was supposed to have told him when he was rightly stopped by the Court (Question 26). Even thereafter Saxena was not called to the box to say whether he agreed to pay any rent to the Beggs. Defendant No. 10 Kali Charan Saxena has not come to the box nor given any evidence himself. He filed a written statement through the Solicitor of Defendant Beggs i.e., defendants Nos. 6 to 9. Although the defendant Beggs are admitted in paragraph 5 of the plaint to be tenants and although defendant Beggs themselves plead in paragraph 5 of their written statement that their tenancy is still subsisting, yet defendant Saxena pleads in paragraph 6 of his written statement that he not only purchased the shop and business from the defendants Nos. 6 to 10 but he also purchased the tenancy. Sexena not having given any oral evidence the only relevant evidence on the point is provided by a conveyance dated 1-3-1951, between Rabiul Huq Begg and Syed Ali Begg on the one hand as vendors and Kali Charan Saxena as purchaser on the other. This conveyance shows that the business and shop carried on under the name and style of Haji Abdul Rahaman at 146 Old China Bazar Street were sold to the defendant Saxena 'as a going concern' and with alt 'the good will' and ''full advantages and benefit thereof.' Indeed, it follows that Saxena is right in his assertion in the written statement that he purchased not only the shop and the business but the 'advantages', 'benefit' and 'good will' which must include in these circumstances the tenancy itself. The evidence therefore establishes that defendants Beggs have not only parted with their possession and occupation of the tenanted land but have also parted with the tenancy itself. Therefore defendants Beggs have no title or interest on the basis of which they can claim either a breach of the covenant for quiet enjoyment or any easement of support for the surface of land as against the plaintiffs.
30. The only person, therefore, affected by the breach, if any, of the covenant for quiet enjoyment is the defendant Saxena. He never gave any evidence. It is not proved by him that he is even a tenant accepted by the plaintiff. Deposit of rents with Rent Controller does not by itself make a person tenant. The plaintiff of course in their plaint stated and pleaded that they had not accepted the defendant Saxena as their tenant. So far, therefore, a the defendant Saxena is concerned he has not proved any payment of rent either to defendants Nos. & to 9 or to the plaintiff and his position as a tenant either of the Beggs or of the plaintiff has not been established and proved by any evidence.
31. It is difficult in that context to find the substance of the rights alleged or claimed by the defendants Nos. 6 to 10. If the defendants Nos. 6 to 9 have parted with possession and occupation, then the breach of the covenant for quiet enjoyment so far as they are concerned, can only mean breach of the right to receive the rent from Saxena. But they have not succeeded in proving that they are entitled to any rent from Sexena against Saxena's case that he had also purchased the tenancy and by the absence of any rent receipt granted by Saxena to the Beggs. In fact the plaintiff pleads that Saxena is a mere trespasser. Saxena has not proved payment of rent either to the Beggs or the plaintiff. Whatever Saxena's own relationship withdefendant Beggs may be, he has certainly not been accetped by the plaintiff as a tenant. Rightly or wrongly, Saxena's assertion to have purchased the tenancy, does not make him a tenant of the plaintiff. Plaintul pleads in his plaint that they had not treated or accepted Saxena as a tenant and Saxena has not given any evidence to show that he is such a tenant.
32. In that view of the matter, considered either as an casement relating to the right of the support of the surface land or as a possible breach, if any, of a covenant for quiet enjoyment, the claim of the defendants Nos. 6 to 10 cannot succeed.
33. Even on the assumption of lawful tenancy in all the defendants Nos. 6 to 10 and on the assumption that they are all in lawful possession and occupation, although there is no proof or material for such assumption, their position in respect of their claim in this appeal does not improve. From the second outstanding fact that such alleged tenancy is on a part of the land on a common passage flows certain other consequences in the facts of this case. It is necessary on this point to examine more closely what was the nature of the tenancy of these defendants. They are tenants of the surface land on a portion of the said common passage. Rent bills speak mostly of shop rooms, not of land. The so-called shops arc found by the learned trial Judge to be only temporary wooden platforms or structures with regard to which an attempt was made by the alleged tenants to rebuild with cement and bricks during the pendency of this very suit. The letting, therefore, was not of any shop nor of any structure but only of surface land on the common passage. The tenants knew what they were taking was only a common passage. A common passage ex hypothesi is a land where there is and always must be a right of way and passage common to both the owners of the land. A tenant therefore on such a land and common passage cannot have a permanent tenancy. Implicit in the fact of common passage is the right of access which makes the tenancy insecure as being subject to such right of passage unless by express or most necessary implication the owners of the right of common passage part with their right. In this case the very nature of temporary wooden platforms shows that there is no parting of such rights. Temporary wooden platforms are found as a fact by the learned trial Judge. Therefore the tenancy must be held subject to such right that a common passage implies in this case. Secondly, there is no other means of drainage in the facts of this case except under the said common passage. There is already an existing drain under the said common passage. That is not disputed. The registered documents of title shew and give notice of the character of this land on the common passage so far as this particular underground drainage under the common passage is concerned. The right given by the Return made by the Commissioner of Partition speaks of drainage. It says that the allottees of the common passage will have the right to discharge effluent of their respective portion through the existing underground drain. The contention of the tenants has been that only the existing underground drain could be used but that there is no right to lay any new drain. I am unable to accept that contention. What happens when the existing underground pipe gets damaged or choked? Surely the landlords can exercise their right of common passage to have access to the passage and go underground to repair and replace the damaged pipe and thus prevent the sanitation of the relative houses being endangered. They can similarly lay a new underground pipe. The tenants have no subsoil or underground rights. The tenancy on the common passage is subject to a reasonable exercise of the right of passage to attend to the underground pipe. The further contention on behalf of the tenants was that the portion of the common passage which has been let out to the defendants or their predecessors-in-interest was let out without expressly reserving the right of drainage and, therefore, on the doctrine that the grantor must not derogate from his own grant, no new pipes could be now laid. No express or even implied reservation is, strictly speaking, called for in this case, because the surface only and not the underground or the subsoil was let. Thirdly, it was contended on behalf of the tenants that the plaintiff could not increase the burden on the servient tenement by laying a new drain or pipe under the common passage. So far as the tenants are concerned the answer is that the subsoil is no part of the servitude because it was not let at all.
34. To my mind, all these three arguments are really irrelevant. They mark a complete confusion of ideas of easement and legal rights of ownership. I therefore consider it unnecessary to discuss cases on easement. The subsoil not having been the subject of the grant of the tenancy at all, the question of increasing the burden on the servient tenement does not at all arise, nor does the question of derogation from the grant arise for the simple reason that no grant of the subsoil right was ever made to the tenants.
35. A tenant, therefore, who takes the surface land of such a character which is marked as a common passage under which alone a drainage pipe would come through takes an insecure tenancy subject to the incidents that flow from the very nature of the property let out to him. One such incident in this case is a reasonable exercise of the right of way on the common passage to go underground to attend to underground drainage. It is a mistake to consider and apply the doctrine of easement of necessity in the facts of this appeal because it is not an easement in this case for the reason that what was let out was not the underground rights at all. It is a reasonable use of landlord's common passage and its underground rights.
36. I therefore agree that this appeal should be allowed in the manner proposed by my learned brother, even on the basis of alleged tenancy how-over doubtful that tenancy may be.
37. On behalf of the tenants, counsel orally applied for a stay of our order which we refuse having regard to the findings of facts both by us and the trial court and having regard to the fact that the alleged tenancy is not valued at more than about Rs. 20/- a month. We cannot help feeling that these tenants are being used as pawns on the chessboard of quarrel between the contending landlords, specially when we recall the finding of the learned trial Judge that the most difficult part of loving down the new pipe has already been completed by the Corporation of Calcutta.