B.N. Banerji, J.
1. This appeal, at the instance orthe defendants, is directed against an appellate decree affirming the decree passed by a learned Munsir.
2. The suit, out of which this appeal arises, was for declaration of the plaintiff's right of passage over the land described in schedule 'Kha' to the plaint, acquired as an easement and for permanent Injunction restraining the defendants from interfering with that right of passage. The prayers as originally made in the plaint were subsequently amended and over and above the reliefs claimed, the plaintiff further claimed declaration of the plaintiff's right of passage over the disputed land as easement of necessity.
3. According to the plaintiff, one Gourhari Das Naskar and certain other persons were owners of three plots of land, namely, c. s. plots Nos. 1518, 1519 and 1522 at Mouza Purba Barisa, within the Jurisdiction of Behala P. S., District 24-Parganas. To the West of c. s. plots Nos. 1519 and 1522, according to the plaintiff, there is a passage, described in schedule 'kha' to the plaint, which is about 75 feet long from north to south and about 6 feet wide east to west. At a distant past (when I shall hereinafter try to determine), the Naskar owners of the aforesaid 3 plots settled or leased out c. s. plots Nos. 1519 and 1522, situate to the east or the passage, described in schedule 'kha' to the plaint, to Iswar Chandra Dutta and others at an annual rent of Rs. 6/4/-. Iswar Dutta and others were the predecessors in interest of the defendants. Lalit Mohan Dey, who is the predecessor-in-interest of the plaintiff, purchased c. s. plot No. 1518 from the Naskar landlords, in the benam of one Gopi Nath Mullick, by a conveyance bearing the date 22-5-1933. Plaintiff alleged that the passage aforesaid started from a gate on c. s. plot No. 1518, at its northeastern corner, and proceeded towards the north, until it met and connected with Seal Para Lane. The plaintiff's claim is that he used to pass over the passage and thus acquired a right of easement thereon.
4. Although the passage was not, according to the plaintiff, included in the conveyance in favour of the predecessor in interest of the defendants, the finally published record of rights did not record the existence of any passage on the western side of c. s. plots Nos. 1519 and 1522, commencing from the northeastern corner of c. s. plot 1518, and in, this respect the c. s. record was said to be incorrect.
5. In as much as the defendants were threatening to enclose the passage within their land and thereby to obstruct the passage, the plaintiff prayed for declaration of his right of easement over the passage and injunction restraining the defendants from causing obstruction to the passage.
6. The case that was introduced by the plaintiff by way of amendment of the plaint was that the three plots 1518, 1519 and 1522 were at one time under a common ownership. On severance of the tenements, the plaintiff became entitled to the use of the passage as an easement of absolute necessity, inasmuch as there was no other way out of c. s., plot No. 1518 to obtain access to Seal Para Lane and all the more so, because the plaintiff was exercising such right of use of the passage for over a considerable time.
7. The defendants, who are husband and wife, contested the suit. The defendants disputed that the plaintiff or his predecessor-in-interest did at all have any right of passage over the land, described an schedule 'kha' to the plaint. According to the defendants, the plaintiff never used the aforesaid land as a passage, because they had an alternative passage for access to c. s. plot No. 1518 over their own land. The plaintiff contended that the passage referred to the plaint was being used exclusively by them and their ptedecessors-in-title. That being the position, the defendants challenged the claim of the plaintiff to any easement right over the disputed land.
8. Although strictly not arising out of the pleading, one of the issues framed in the suit was to the following effect:
Issuer No. 5.
'Did the plaintiff legally acquire any quasi-easement over pathway in suit as alleged'?
9. On the evidence the trial court was satisfied that the passage was not a public passage, but nevertheless it was found to have been in existence for a considerable number of years and used by a few persons. The reasons which weighed with the learned Munsiff in declaring the plaintiff's right of passage over the disputed land and in injuncting the defendants from interfering with the use of the said passage may better be quoted in the language of the learned Munsif:
'The evidence before me clearly proves that the disputed passage was used by owners of c. s. plot 1518. The present plaintiff is owner of the same. He has that right of user. He however is owner of a garden to the west of this plot. That garden is on Diamond Harbour Road. There is one drain between c. s. plot 1518 and this garden. But that drain is crossed over a wooden plank. Thus the plaintiff may at present use c. s. plot 1518 by passing over the garden to the west to Diamond Harbour Road. There is therefore no easement of necessity. But the plaintiff has quasi easement rights over the disputed passage. I decide issue No. 2 in plaintiffs favour'.
10. In the view the learned Munsif took in the matter, he decreed the plaintiff's claim to the extent indicated above.
11. There was an appeal by the defendants to (the lower appellate court. I have to deal with the reasons of the lower appellate court, which affirmed the judgment of the learned Munsiff, in some detail, because several of the reasons given by the lower appellate court were severely criticised by Dr. Gupta, who appeared for the defendant appellant in this second appeal.
12. The learned Subordinate Judge, who heard the appeal, was satisfied on the evidence that the disputed passage had been in existence for more than 50 years and had been used by the tenants, possessing c. s. plots Nos. 1518 and 1519 and also by other persons. Nevertheless, the learned Subordinate Judge was of the opinion that inasmuch as 20 years of uninterrupted user of the passage in suit, by the plaintiff, had not been established since the time of his purchase in the year 1933, it could not be said that the plaintiff had acquired a right of way over the passage as an easement, as contemplated by Section 26 of the Indian Limitation Act. If the tenants, who had been in possession of c. s. plot No. 1518 prior to the time when plaintiff purchased, had been using the passage in exercise of their right of way and had thus acquired a right of easement, the said right ceased because there was a gap between the time when the original tenants went away and the plaintiffs purchased the land from the Naskar Landlord. During that period, the Naskar Landlords were in possession and there was a cessation of the user of the passage, The learned Subordinate judge was further satisfied that the c. s. plot No. 1518 was approachable through the plaintiff's garden on the west, over a wooden bridge across the Municipal drain. This garden of the plaintiff on the west, the learned Subordinate Judge found, was a big one and was approachable from the Diamond Harbour Road on the west. In these circumstances the learned Subordinate Judge was satisfied that the plaintiff respondent had not and could not have acquired any easement of necessity in respect of the passage in question.
13. Although holding the aforesaid view, the learned Subordinate Judge was also of the definite opinion that the disputed passage had never been meant for the exclusive use of the defendants appellant, because had it been so, it could not have extended upto the gate to the north eastern corner of c. s. plot No. 1518. The learned Subordinate Judge made little of the fact that the disputed passage was not shown as a passage in the Cadastral Survey map. The learned Subordinate Judge thought that, because it was not a public passage and because its width was only 6 feet, the passage was not shown in the map.
14. About the existence of the passage, the learned Subordinate Judge came to the definite conclusion that the passage was a formed road running, from the north eastern corner of the plaintiff respondent's land to Seal Para Lane, and must have been in existence for over 50 years. About the obstruction caused to the passage, the conclusion arrived at by the learned Subordinate Judge was that the defendant appellants interrupted the passage after their purchase for the first time in the year 1946.
15. Although the learned Subordinate Judge had negatived the right or rights pleaded by the plaintiff appellant, he allowed the plaintiff's claim on a ground not pleaded but which ground had appealed to the trial Court. The learned Subordinate Judge made an assumption that in the distant past, when all the 3 plots, namely, c. s. plots Nos. 1518, 1519 and 1522 were in the ownership of the Naskar landlords the passage was in existence and the afore-'said passage must have been used by the Naskar landlord for access to and from plot No. 1518. When there was a lease created in favour of the predecessor in interest of the defendants and there was a severance of the joint ownership of the 3 plots of land, the right of the user of the passage must have been reserved by the Naskar landlords for going to and corning out from c. s. plot No. 1518.
16. I should better quote the reasons given by the learned Subordinate Judge in arriving at his conclusions about the existence of a 'quasi-easement' in favour of the plaintiff in his own language. So infirm are the reasonings that, I am afraid, much of the infirmity will be lost, if I try to paraphrase the same:
'It is a well-established principle that when several lands held by the same owner during unity of possession no easement, strictly so called, exists, but a man may, by the general right of property, make one part of his property dependent on another and grant it with its dependence to another person, Where property is conveyed which is so situated relatively to that from which it has been severed so that it cannot be enjoyed without a particular privilege in or over the land of the grantor, the privilege is what is called an easement of necessity and the grant of it is implied and passes without any express words. It is, as it were, brought into existence by the severance of the tenements on the principle that together with the property sold the vendor grants everything without which it could not be beneficially used. Thus, the Rule preventing a tenant from acquiring an easement by prescription as against his landlord does not extend to the case of an easement of necessity. Though easement of absolute necessity and quasi-easement may alike be created by implication of law on a severance of the tenements, the point of distinction arises between these two classes of easement, in cases where the dominant tenement is retained by the grantor instead of being conveyed and it is the servant tenement which is conveyed to the grantee. These are extracts from Peacock's Law relating to the Easement in British India, Second Edition, page 336. If it is believed that the passage had existed before the tenancy of the appellants had been created which is perhaps true and the landlords were in possession of c. s. plot 1518 and were using the passage in suit apart from any way affording access to this plot by some other route. There is no room for doubt that this passage was the only way from c. s. plot No. 1518 to reach Seal Para Lane. There is also no evidence that previously the occupier of c. s. plot 1518 had access through the garden of the respondent on the west of Diamond Harbour Road. Thus, it would seem that in the present case an easement of necessity in respect of the passage in question had existed at one time. But in view of the fact that the c. s. plot 1518 and the garden on the west had passed into the hands of the same persons about 20 years ago, the question of absolute necessity for user of this passage was no longer important and in this view of the matter, I think the learned Munsiff was quite correct in holding that there was no easement of necessity. He had held that the respondent had quasi-easement right over the disputed passage and on the materials placed before me, I am inclined to agree with him on this point. There can be little doubt on the evidence before me that when the 3 plots namely c. s. plots ,1518, 1519 and 1522 were held under common ownership, each plot was dependent on the other for necessary advantages and it is also established that the occupiers of c. s. plot 1518 who were the tenants of the Naskars and the Naskar landlords themselves had no other way out of their land except through this passage to Seal Para Lane. Therefore, the denial to the respondent of the same right which the Naskar landlords and their former tenants had enjoyed in respect of this passage would be against the principles' of justice. The term 'quasi easement' applies to such easement which not being easement of absolute necessity comes into existence for the first time by presumed grant or operation of law on a severance of two or more tenements formerly united in the sole, or joint possession or ownership of one or more persons. Such easement may remain suspended for a while during unity of possession, but it would revive upon determination of such unity by separation of the tenements. But even during the period of suspension if the owner of the united tenements used the right as necessary to the enjoyment of the property, the Law would record such a right as 'Quasi appendant right' which would be changed into an easement proper on severance of the tenements. It is needless to point out that such right originates for reasons of practical utility and in this character remains always apparent and continuous'.
17. For the reasons stated above, the learned Subordinate Judge was of the opinion that there was a 'Ouasi-easement' in favour o the plaintiff over the passage and the plaintiff's claim for declaration of right of way over the passage must be sustained.
18. Dr. Atul Chandra Gupta, learned Advocate for the appellant, argued with great force that the application of the doctrine of 'quasi-easement/ in the facts and circumstances of this case, was wholly inappropriate. Dr. Gupta argued, that there was nothing to show when the first severance of the joint ownership took place. All that appeared was that the grant of the lease by the Naskar landlords; in favour of the predecessors in interest of the defendant took place at sometime prior to the year 1901. But when that exactly was, does not appear. Dr. Gupta further argued that at the point of time, when the settlement to Iswar Dutta and others had been made, there was no evidence to show that the passage as a formed passage was in existence and used to be utilised for access to and from c. s. plot No. 1518. In the absence of any evidence, Dr. Gupta argued, that c. s. plot Mo. 1518 used to enjoy an accommodation of passage over c. s. plots Nos. 1519 and 1522, during the period of their common ownership and occupation, there was no room for application of the doctrine of quasi-easement in the instant case. Even assuming that c. s. plot No. 1518 used to enjoy an accommodation of way, at the material time, there was nothing to show, Dr. Gupta argued, that at the time of leasing out c. s. plots Nos. 1519 and 1522, the landlords expressly reserved the right of way in respect of c. s. plot No. 1518. Dr. Gupta further argued that there was no material on the record to show that during the common ownership and occupation, the disputed passage was the only passage for access to c. s. plot No. 1518. That being so, Dr. Gupta argued, it could not be presumed that the right of way, over the disputed passage, must have been impliedly reserved for themselves by the lessors of c. s. plots Nos. 1519 and 1522 because it would be unreasonable to presume that in granting the lease, the lessors, the Naskar, landlords, must have acted so stupidly as to put c. s. plot No. 1518, in their occupation, beyond access and beyond reach.
19. The last argument of Dr. Gupta was, thatthe evidence of existence of the passage for a considerable number of years and its user by othertenants and by all and sundry people will not clothethe plaintiffs, interested in plot No. 1518 only, withthe right of user of the passage, as a quasi-easement right, not expressly claimed in the plaint. Thepassage may have become a village pathway bycustom, or a public pathway by grant of dedication.The plaintiff as a co-villager or as a member of thepublic may have other rights to use the passage, butthe plaintiff has certainly no right to claim right ofway over the passage as an easement acquired byprescription or as an easement of necessity or asa quasi-easement.
20. In my opinion the argument advanced by Dr. Gupta requires serious consideration. Gale on his Standard Book 'On Easement' gives the following meaning of the expression 'Quasi-easement':
'Where Blackacre and Whiteacre, both belong to A, the common owner, and during his ownership an accommodation or privilege is enjoyed by Black-acre over Whiteacre, and A subsequently parts with Blackacre to B but retains whiteacre, there passes to B in certain cases a right to the above accommodation. This accommodation as it existed during the common ownership cannot in the strict sense be described as an 'easement', but is usually described as a 'quasi-easement'. Blackacre is sometimes described as the quasi-dominant tenement, and White-acre as the quasi-servient tenement'.
21. The question is, what are the certain cases where such a right of accommodation passes. One such case undoubtedly is where the accommodation is required to be continued even after the severance, provided its continuance is found essential for the beneficial and reasonable enjoyment of the severed tenement, to the extent to which the accommodation was enjoyed before the unity of the tenements under single ownership broke up. In such a case, the continuance or reservation of the accommodation, or privilege may be inferred or implied. Another case where such accommodation or privilege is continued must be where the owner, at the time of single ownership, expressly reserved to himself and to the severed tenement, the privileges which existed prior to the severance.
22. One of the leading cases on the law of 'quasi-easement' is the case of Wheeldon v. Burrows, reported in (1879) 12 Ch D 31. In that case a workshop and an adjacent piece of land belonging to the same owner was put up for sale by auction, The workshop was not then sold, but the piece of land was then sold, and was soon afterwards conveyed to the purchaser. A month after this, the 1 vendor agreed to sell the workshop to another person, and in due tune conveyed it to him. The workshop had windows overlooking and receiving their light from the piece of land first sold. It was held that as the vendor had not, when the conveyed piece of land, reserved the right of access of light to the windows, no such right passed to the purchaser of the workshop and that the purchaser of the piece of land could build, so as to obstruct the windows of the workshop. Whatever might have been the case had both lots been sold at the same sale by auction, there was, under the circumstances, no implied reservation of any right over the piece of land first sold.
23. Thesiger, L.J. in delivering the judgment observed :
'I think that two propositions may be stated as what I 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 of 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, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part 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 wellknown exception which attaches to cases of what are called ways of necessity; * * * *
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 commonsense viz., that a grantor shall not derogate from his grant'.
24. His Lordship then went through principal decisions seriatim, in order to show that they illustrated these rules. He treated Nicholas v. Chamberlain, (1606) Cro Jac 121 as probably a case of necessity, and considered Pyer v. Carter, (1857) 1 H and N 916 as the only break in the current authority against the doctrine of implied reservation.
25. Dealing with a case, where the common owner of two adjoining houses, A and B, at the back of which ran a path, sold A without reserving any right to use the path except for one specific purpose and afterwards sold B, Scrutton L, J., observed in Liddiard v. Waldron, (1934) 1 KB 435 at p. 443 as follows:
'There was the right to use the path apparently for certain purposes, namely, to go to the well, but that is not the right now claimed, and the position seems to me to be exactly as it was in Aldridge v. Wright, (1929) 2 KB 117 and the conclusion I came to, after going fully into the facts, was that I could see no evidence of a claim of user as of right admitted or acquiesced in, and I said this stating what might be an exception to (1879) 12 Ch. D. 31:
Another is where there is at the time of the severance a formed road or formed drain or water course used before the severance as of right by the tenant under the grantor of the alleged dominant tenement, in which case, as I understand, it is suggested that the grantor could not grant one set of premises so as to destroy the right of the tenant of another set of premises in respect of the premises he occupies, over the premises so granted. There must be an implied reservation of 'an existing right'.
26. The position in law, therefore, is that although ordinarily a quasi-easement is to be expressly reserved, there are cases where a quasi-easement may be implied to have been reserved. One such case undoubtedly is, the case of easement of way as of necessity. In such a case it is the necessity which justifies an inference of implied reservation of an accommodation of way. Such implied reservation should not however, be too freely inferred.
27. In the instant case, there is no evidence that any formed way existed over c. s. plots 1519 and |1522 at the time when there was unity of ownership and possession of the aforesaid two plots with the c. s. plot No. 1518. I do not find any evidence that it was necessary for the owner of the three plots at that time to pass over any portion of c.s. plots Nos. 1519 and 1522 in order to reach 1518 or from c. s. plot No. 1518 to pass through the disputed land, in order to reach Seal Para Lane or anywhere else. Lease in favour of the predecessor in interest of defendant No. 1 was not in writing. Therefore, there was no question of any express reservation of the right of way over the land of c.s. plots Nos. 1519 and 1522. It is not possible to make any inference of implied reservation in the absence of evidence that I it was necessary at all to use the disputed plot of land for the purpose, for which the plaintiff now wants to use the same. The owners of all the three plots before severance of the tenement and after, may have had other access to and from c. s. plot . No. 1518, making it unnecessary for them to reserve the right of passage over the disputed plots. Unless there is evidence to hold that it was absolutely necessary for the Naskar Landlords to reserve a right of passage, I shall not be justified in making an inference that such a reservation must have been made.
28. Dr. Gupta argued that the error into which the Court of appeal below fell, was that it did not proceed from proved facts to the legitimate conclusion, but assumed certain facts in order to come to its conclusion. From the extract from the judgment of the court of appeal below, which I have already quoted, it will appear that the court of appeal below assumed that a passage had existed before the tenancy of the appellant's predecessor in interest was created and also assumed that the aforesaid passage was the only passage from c. s. plot 1518 to Seal Para Lane. Both these assumptions are surmises having no foundation in evidence. The court of appeal below had no justification to make such surmises in favour of the plaintiff and then to present to the plaintiff a right of way based on the theory of 'quasi-easement'.
29. The court of appeal below made much of the fact that the passage had been in existence for long long years and that quite a number of people used the passage. The question for consideration before the courts below was, whether the plaintiff had acquired any right of way over the disputed plot of land, either by prescription or of necessity or as a quasi-easement. For that purpose the evidence of the existence of the passage or of user of the passage by a number of other people would be of no avail, however, useful such evidence may be for establishment of a village pathway or a public pathway.
30. Mr. Shyama Charan Mitter, learned Advocate for the respondent had to admit that there was no evidence of the existence of the state of things necessary to establish a quasi-easement of passage when all the 3 plots of land were under a unity of ownership. He also conceded that there was absence of evidence on the point that any reservation of right of way had at all been made by the Naskar landlords over the disputed passage when they transferred their right in c.s. plots Nos. 1519 and 1522 to the predecessor in interest of the defendants. He however, contended that the facts of this case were such that I would be justified in inferring an implied reservation of such right of way. I have already stated why such an inference should not be made.
31. In this state of affairs, I am definitely of the opinion that there is no room for application of the theory of 'quasi-easement' in the facts of the Instant case.
32. As a last resort Mr. Mitter wanted to argue that there was sufficient evidence to hold that the plaintiff acquired an easement of way by prescription. In this respect there are two difficulties in the way of Mr. Shyama Charan Mitter. Firstly, the finding of fact is against him. Assuming for the sake of argument, that the evidence was such that user for the statutory period could be spelled out therefrom, if the user of the passage by the group of tenants, who had been in occupation of c. s. plot No. 1516 previous to the time when the plaintiff came to be on the scene, be tacked to the period of the user by the plaintiff, even then, as was found by the court below, there was a break between the two periods during which time the Naskar landlords had resumed possession. The number of months or years for which the Naskar Landlords were in possession do not appear, the result being the two periods of user of the possession cannot be tacked together.
33. The final court of fact found against the plaintiff's version of acquisition of right of way over the disputed passage either by prescription or as easement of necessity. In disagreement with the courts below, I find that the plaintiff's claim cannot succeed even on the theory of acquisition of right of way as a 'quasi-easement'.
34. In these circumstances the plaintiff's claim must fail. I, therefore, set aside the judgments and decrees of both the courts below and dismiss the plaintiffs suit.
35. This appeal is allowed with costs.