1. In this case the plaintiff brought a suit to obtain a perpetual injunction restraining the defendant from using a path which runs over the land and premises admittedly belonging to the plaintiff. The learned Judge of the lower Appellate Court says, that it is an admitted fact that the plaintiff's premises and the defendant's premises, which adjoin, originally belonged to the same owner, and it appears that the plaintiff and defendant obtained their respective tenements by purchase more than twenty years ago. When I say the defendant' I include the defendant's predecessor in title, because, although the defendant himself purchased seventeen or eighteen years ago, he is for the purpose of this suit entitled to add the time during which his immediate predecessor, Gya Nath, held the particular tenement. The defendant's case was, that the two tenements belonged to the same owner; that this owner constructed the ghat and the path now used by him (defendant), and that this ghat and path continued to be used for more than sixty years. The plaintiff on oath admitted that the pathway had been in existence when the two tenements belonged to the same owner, but he added that he had closed the path after purchasing his portion of the property.
2. The Munsif disbelieved the plaintiff's statement as to the closing of the path. He says,--'there is no trustworthy evidence to show that the pathway was discontinued by him.'
3. It, therefore, appeared to him that the plaintiff was not entitled to succeed, and he refused the prayer for an injunction. The case then went before the District Judge, and the District Judge treated the case as if it were one falling under Section 26 of the Limitation Act, and being of opinion that the defendant had not proved twenty years' peaceable, open, and uninterrupted exercise of the right of way, he gave the plaintiff a decree.
4. It appears to us that the learned District Judge has been in error in the manner in which he has dealt with the case. It has been decided by the Privy Council that the mode of acquiring an easement provided by Section 27 of Act IX of 1871, and by Section 26 of the present Limitation Act, XV of 1877,--i.e., by enjoyment as of right, without interruption and for twenty years, is not the only way in which an easement can be acquired, and that this provision of law was not intended to interfere with other modes of acquirement. See Maharani Rajroop Kooer v. Syed Abdul Hossein L.R. 7 I.A. 240; S.C. I.L.R. 6 Cal. 394 also; Achul Mahta v. Rajun Mahta I.L.R. 6 Cal. 812 and Punja Kuvarji v. Bai Kuvar I.L.R. 6 Bom. 20. In the present case the defendant did not allege that he had acquired an easement by twenty years' uninterrupted enjoyment as of right. His case was that the two tenements originally belonged to the same owner; that while this unity of possession continued, the path and the ghat were constructed by the single owner; and that, when the two tenements became the property of separate owners, this path over the plaintiff's tenement continued to be used by the owner of the other tenement; in other words, the defendant alleged an implied grant. This implied grant might arise in one of two ways: (i) The use of the path and ghat might be absolutely necessary to the enjoyment of the defendant's tenement, in which case, there would he an easement of necessity. (ii) The use of the path and ghat, though not absolutely necessary to the enjoyment of the defendant's tenement might be necessary for its enjoyment in the state in which it was at the time of severance; and in this case, if the easement were apparent and continuous, there would be a presumption that it passed with the defendant's tenement. This latter case is discussed in the books under the principle of the disposition of the owner of two tenements (Destination du pere defamille). See Gale on Easements, 5th edition, pp. 96, 97 and following pages; and as to right of way, p. 103 note, p. 124 note, and Pyer v. Carter l H. and N. 922. This principle is just and fair and accords with common sense. It is in consonance with the rule of justice, equity, and good conscience, which must guide the Courts in the absence of positive direction by the Legislature. In the present case it appears to us that if the path and ghat were made and used when the two tenements belonged to the same owner, and, as alleged by the defendant, continued to he used by the proprietor of the defendant's tenement after the two tenements became the property of separate individuals, and if the easement is one to which the principle above indicated properly applies, then the plaintiff would not be entitled to the injunction which he asks.
5. The case must, therefore, go back to the District Judge, and he will have to find whether he agrees with the Munsif's finding upon the question whether the plaintiff closed the path after he became the owner of the tenement which now belongs to him. If the plaintiff closed the path, and it remained closed for such a period that non-user during this period would bar any suit by the defendant to have the use of the path restored to him, then the defendant's right has been lost. If, on the other hand, the District Judge finds that the plaintiff did not, as he alleges, close the path after purchasing the tenement which now belongs to him, the Judge will further have to determine whether this particular easement is one to which the principle already explained is applicable.
6. The case must, therefore, be remanded, and all costs will abide the result.