B.K. Mukherjea, J.
1. This is an appeal on behalf of the defendant and it arises out of a suit commenced by the plaintiffs for a declaration that the Record of Rights describing C.S. Dag No. 5795 of Khatian No. 811 in Mouza Baranagore District 24 Parganas, as a pathway is incorrect, that the western portion of the said Dag belongs to the plaintiff as appurtenant to Dag No. 5793 and the eastern portion is a private pathway belonging to the plaintiff and their co-sharers, and that the defendant has no right of way over any portion of the said Dag and cannot use it either as a mehtor passage or for discharge of water. There was also a prayer for a permanent injunction restraining the defendant from using the said strip of land for any purpose whatsoever. The defendant in her written statement claimed a right of way over the land in suit. Her case was that the lands on both sides of the disputed strip belonged to the plaintiff's predecessors, that by partition the land to the south fell to the share of one branch who had a right of way over the disputed land, The defendant claimed to have acquired an easement right as transferee of the interest of the said branch.
2. The trial Court decreed the plaintiff's suit in part. It held that the western portion of C.S. Dag No. 5795 did appertain to Dag No. 5793 which belonged to plaintiffs 1 and 2. It held however that the eastern portion was a common passage which could be used by the defendant for all purposes except for discharge of foul water over the same. Against this decision, the plaintiffs took an appeal to the lower Appellate Court but as the defendant did not file any cross-objection, the appeal was confined to the eastern portion of the Dag which was found to be a common passage by the trial Court. The Court of Appeal below concurred with the Munsif in holding that the eastern portion of the Dag was a common passage and that the defendant acquired a right of way over it by implied grant, but he held at the same time that the defendant could not use it for discharge of any kind of water, nor could use it as a mehtor passage for cleansing of his privy. It is against this decision that the present appeal has been preferred. The plaintiffs have also filed cross-objection challenging the decision of the lower Appellate Court that the defendant has acquired a right of passage by implied grant over the eastern portion of the Dag.
3. The first question therefore which requires consideration is as to whether the defendant has been able to establish a right of passage over the eastern portion of Dag No. 5795 by way of implied grant, as held by the Court below. If this is answered in the negative, no further question arises and the plaintiffs' suit must succeed in its entirety. If on the other hand, an affirmative answer is given to the question, the next point for determination would be as to what is the extent of this right. Can the defendant use the passage for discharge of water, or as a mehtor passage for cleansing his privy which stands on the north west corner of his land? On the first point, the Court of appeal below has found that the lands on all sides of the disputed strip belonged to Mohesh, Ramanath and Purna, who were all members of the Manna family. In 1883 there was a partition amongst them and the disputed plot which is Dag No. 17 of the deed of partition was set apart as a common passage for the use of all the co-sharers for going to and coming from the sadar bati and the garden. Chandra Kumar, a son of Rama Nath sold his share to one Surabala, and from Surabala the defendant purchased the land which is now Dag No. 5798. According to the Court of Appeal below, there was by arrangement among the co-sharers a quasi-easement over the disputed land, and on severance of the tenement the defendant got it by implied grant. The propriety of this view has been assailed, and in my opinion rightly, by the learned advocate who appears for the respondent. It is true that an owner can subject one part of his property by a quasi-easement in favour of another part and if afterwards he alienates a portion of his land, the purchaser takes the portion with all the conveniences or quasi-easements which the proprietor has attached to it. But this applies when the quasi-easements are in their nature palpable or obvious, or to speak technically are continuous and apparent. There could be no implied grant where the easements are not continuous and non-apparent (vide Gale on Easement p. 124). Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a 'formed road' existing over one part of the tenement for the apparent use of another portion or there is 'some permanence in the adaptation of the tenement' from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement: Ram Narain Shaha v. Kamala Kanta Shaha (1893) 20 Cal 311, Worthington v. Gimson, (18(50) 2 El & El 618 and Gale on Easements, p. 165.
4. In the present case none of these exceptional circumstances are present and it is not therefore possible to hold that the defendant acquired by implied grant a right of passage over the disputed land, when there was a severance of the tenement by execution of the kobala in favour of her predecessor. The appellant has however sought to support the decision on the ground that there is a grant by implication of a right of passage by the conveyance itself which was executed by Chandra Kumar, the predecessor of plaintiffs 3 and 4 in favour of Surabala, the predecessor of the present defendant. When Chandra Kumar sold Dag No. 5798 to Surabala, the north boundary was described as a common passage. The same description occurs in Surabala's kobala in favour of the defendant, and the plans attached to both the conveyances depict the portion as a common passage. It is not described as ijmali land of the vendor nor even a common passage of the vendor and his co-sharers, but is described and held out to be a common passage generally and shown to be such in the plan annexed to the conveyance. In such cases a grant may be presumed on principle akin to estoppel, which is recognized in many oases of which the cases in Robert v. Karr (1809) 1 Taunt 495 and Espley v. Wilkes (1872) 7 Ex 298 may be taken as instances. In the first of these cases, Pratt had released to Compigne a piece of land described as abutting on a new road on Pratt's own soil. In the wider part, the land abutted on the road, but in the narrower part a strip of Pratt's land intervened, which he said he intended to reserve. It was held by Mansfield, C. J that the grantor could not prevent the lessee or his assignees from coming out into the road over this land. As the lessor said that the land abutted on the road, he could not be allowed to say that the land on which it abutted was not the road. In the other case, the land conveyed by a lease was described as being bounded on the east and north by newly made streets, and the plan also showed the same thing. It was held that even if no public street had been made, the lessee was entitled to a right of way over the places where the streets were indicated. The Madras High Court has applied this principle in Kuppakkal v. Mathan Chettiar AIR 1924 Mad 834. In my opinion the defendant is entitled to invoke this principle and say that as the northern boundary was specifically described as a common passage in the conveyance as well as the plan, the grantor could not derogate from this position and say that it was a passage meant for the vendor alone, and not for the vendee. I think therefore that a grant could be presumed for the description of the abuttals contained in the conveyance. The cross objection thus fails. The question that now arises is as to what is the extent of the right of passage that is given by the vendor, and for what purposes can the vendee use it.
5. Mr. De who appears for the appellant does not press the point found against his client by the Court of Appeal below that he cannot use the land for discharge of water, but he contends that he can use it as a passage for his mehtors who might have egress and ingress over the land for the purpose of cleansing his privy. As the right is not based on prescription, no question of accustomed user ordinarily arises and the extent of the right has got to be gathered from the language of the document, as well as from the surrounding circumstances of the case. As has been said already, the strip of land was described as a common passage. The description was with reference to the clause in the partition deed of 1883, where this passage was set apart for going to and coming from the sadar bati and garden, which presumably stood at that time on both sides of this passage. It was for this purpose that the common passage was set apart, and the intention of Chandra Kumar could not have been anything else but to concede to his vendee a right of passage of exactly similar nature, which he and his co-sharers were exercising in their own property. No evidence has been adduced to show that the strip was ever used as a passage for mehtors, and I don't think that the defendant can use it for that purpose, unless it were absolutely necessary for him to do so, and for which there is no proof in the present case. It appears from the map that the defendant has set apart a strip of land in the west of his Dag for the passage of his mehtors, and this northern strip is not even convenient for egress and ingress of mehtors it being unconnected with any public road either on the east or on the west. Mr. De contends that a right of passage must in general include a right to use it for all ordinary household purposes and for the passage of mehtors among the rest, and relies on the observation of Wilson, J., in Chunder Coomar Mookerji v. Koylask Chunaer Sett (1881) 7 Cal 665 at p. 674. He also cites the decision of the Bombay High Court in Manek Lal Hari Lal v. Manek Lal Gordhas AIR 1932 Bom 574. When there is an express grant by general words, a passage might include a right of way for scavengers and sweepers, particularly if the grant is in connection with a building.
6. In both the cases mentioned above there was evidence of the pathway being used by mehtors for a considerable time past, and in the Calcutta case, as all the plots were found to be landlocked but for the lane, the mehtor passage could be justified as an easement of necessity. In the present case, a grant has to be presumed from the description of the northern boundary in the conveyance which mentions the same to be a common passage. The extent and purpose of the passage were defined in the partition deed of 1883 as mentioned before, and as there is no evidence of such user at any time past, I am unable to hold that the defendant can use the land as a pathway for mehtors. I am rather inclined to take the view adopted by the Bombay High Court in Chintamani v. Ratanji AIR 1920 Bom 233 that it is certainly not generally incidental to a right of way that a sweeper carrying nightsoil should use it, for such a person is not one of the normal class of servants of a household in this country. In my opinion both the appeal and the cross-objection fail and are dismissed. No order as to costs.