1. This appeal is by defendants 1 and 2 and it arises out of a suit for a declaration of a right of way and of a right of passing drainage and rain water from the land of the plaintiffs over the land of the defendants. The plaintiffs claimed this right on three grounds, namely (1) by virtue of a grant, (2) as an easement of necessity and (3) as having been acquired by prescription. The defence taken consisted of a denial of any such right. It was alleged further by the defendants that if there were any such right it had become extinguished by the plaintiffs' acquisition of a share in the servient tenement, which was possessed by the defendants. Both Courts have held that the plaintiffs have got a right of way, and that they have acquired it by prescription. They have found that the plaintiffs' case of acquisition by the other two means has not been made out. They have also found that the plaintiffs have not got a right of passing their drain water and rain water over the land of the defendants. Against this decision defendants 1 and 2 have appealed. There is no cross-objection.
2. Certain facts will have to be stated for the purpose of appreciating the points which have been raised on appeal. The plaintiffs were the owners of a homestead. This is the dominant tenement. South of the homestead is a plot of land and south of that is a road known as Thana road. The claim of the plaintiffs is that they have always passed from their homestead to the Thana road by a pathway over the southern plot of land which belonged to defendants 1 and 2 and before them to their predecessors. This right the plaintiffs claim has been exercised by way of an easement and as of right without interruption for a period of about a hundred years. In the year 1928, the plaintiffs purchased a share in this land to the south of their homestead and were in joint possession of that land with defendants 1 and 2. In the year 1930 the defendants brought a suit for partition of this southern land and in August 1932 a decree for partition was passed by which the plaintiffs were given a portion of this land, which has been described as lot No. 2, and the defendants were given a portion of the land described as lot No. 1. Now, this pathway passes over the entire length of lot No. 1, and over a small portion of lot No. 2. Both Courts have found that the plaintiffs had by prescription acquired a right of way over the southern land as an easement long before the plaintiffs purchased any portion of the southern plot. This finding is now not challenged. What is urged on behalf of the defendants is that the plaintiffs' easement was extinguished as soon as they acquired the right of a co-sharer in the servient tenement, and it is contended that after the partition decree this right could not be considered as having been revived or recreated, as this pathway was not a pathway of necessity. Both sides agree that the pathway is not an easement of necessity.
3. The second point taken on behalf of the appellants is that the plaintiffs' claim is bar-red by Section 11, Civil P.C., and also by principles analogous to res judicata. This argument is founded on the following facts. In the suit for partition, the plaintiffs, who were the defendants, alleged in their written statement that there was this right of way over the land which was the subject-matter of the partition. In spite of this allegation, there was no decision obtained regarding the existence of this right of way; the learned advocate for the appellants contends that it must be held that this question cannot be reagitated in the present suit.
4. I shall take up for consideration, first, the question whether the right of way has been extinguished by the purchase by the plaintiffs of a share of the servient tenement. My attention is drawn to a passage in the judgment of Mookerjee J. in Tinkori Pathak v. Ram Gopal ('23) 10 AIR 1923 Cal 8 at p. 365. The passage is as follows:
The principle applicable to oases of this character is beyond dispute. The unity of the dominant and servient estates in the same person extinguishes the easement appurtenant to the dominant estate, for no person can have an easement in land which he himself owns. But unity of title of the two estates will not extinguish an easement, unless the ownership of the two estates be co-extensive, equal in validity, quality and all other circumstances of right. If one estate is held in fee and the other for a term of years, there is no unity of possession that will extinguish an easement of one estate as against the other, but the unity of possession in such case will only suspend the easement during the time of such unity of possession. Consequently, an easement may be revived after it has been extinguished by the union of the dominant and servient tenements in one owner, by their subsequent severance provided the easement is apparent, continuous and essential to the enjoyment of the dominant tenement.
5. Relying on this passage, learned advocate on behalf of the defendant-appellants contends that the plaintiffs by acquiring a share in the servient tenement have caused the dominant and servient estates to be merged in the same person and that therefore the easement which was appurtenant to the plaintiffs homestead had been extinguished. The learned advocate for the respondents, on the other hand, contends that the statement in the judgment just reproduced does not support the contention of the learned advocate for the appellants. He points out that in order that there may be an extinguishment 'the ownership of the two estates' must 'be co-extensive, equal in validity, quality and all other circumstances of right.' He points out that in this case the plaintiffs were merely co -sharers of the servient tenement while they were the sole owners of the dominant tenement and he argues that the easement over the servient tenement would be extinguished only if the plaintiffs acquired the entire servient tenement. In this connexion, he refers me to Section 46, Easements Act, which is as follows:
An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages.
6. Illustration (b) is as follows:
The dominant owner acquires only part of the servient heritage: the easement is not extinguished, except in the case illustrated in Section 41.
7. Section 41 deals with an easement of necessity with which this case is not concerned. In my opinion, this argument should prevail. It is true that the Basements Act does not apply to the Province of Bengal, but, nevertheless, the principles underlying that Act have often been applied in deciding; questions regarding the right of easement. The principle underlying this section is, in my opinion, of general application and consistent with the principles applying to the law of easement in England; there are no reasons why it should not be applied to the circumstances of the present case. The learned advocate for the appellants argues that although the plaintiffs may be co-sharers, they have a right to every inch of the land of the servient tenement and that the nature of their right in the servient tenement is exactly the same as the nature of their right in the dominant tenement. His contention is that what must be looked' at is not the extent of the subject-matter of right but what he terms the quality or nature of the right itself. He concedes that if the owner of the dominant tenement acquires merely a leasehold interest in the servient tenement, the easement appurtenant to the dominant tenement would not be extinguished by the acquisition of leasehold interest, but he says that here the position is quite different. The owners of the dominant tenement have acquired a full right of ownership in the servient tenement, although the right relates only to a share in the servient tenement. This identity of the plaintiff's interest in the two tenements is sufficient according to learned advocate for the appellant to extinguish the easement. I do not think that this argument is sound. Before there can be any extinguishment of an easement there must be a merger of the servient and dominant tenements so as to result in the single ownership of both. This view is expressed in Peacock's 'The Law Relating to Easement in British India,' Edn. 8, p. 533, where he says:
Basements are extinguished by unity of seisin or the absolute ownership of the dominant and servient tenements becoming vested in the same person.
8. It cannot be, said in this case that there has, been such a merger of the two tenements. The, plaintiffs' cosharers have the right to use the land over which the path-way runs, in any way that they like; they can if they so choose put up buildings on the path way and obstruct it. The plaintiffs would not be entitled to prevent them from doing this. Their only remedy would lie in a suit for partition. That being the position, it cannot be said that the ownership of the two tenements has merged into one. I hold therefore that there has been no extinguishment but merely a suspension of the right of way and that the easement has now been revived by the partition decree.
9. There remains the other question, namely whether the plaintiffs' claim is barred by res judicata, or by any principle analogous thereto. In my opinion, there is no such bar in the way of the plaintiffs. All that the plaintiffs did in the partition suit was to draw the Court's attention to the fact that there was a right of way existing over the property; and they prayed that this fact might be taken into account when the allotments were made. There was no issue raised as to the existence of this right of way. The right of way was not challenged and indeed it seems from a passage in the trial Court's judgment that this right of was admitted in the partition suit. In any case, the pleadings do not show that the Court was called upon to adjudicate upon the question whether this right of way existed. It was also quite -unnecessary for the Court to adjudicate upon this question in_ a partition suit. It cannot therefore be said either that the existence of this pathway was negatived by the Court in the partition suit or that the existence of this right of way should have been pleaded as a defence to the claim for partition. That being so, it seems to me that the claim of (the plaintiffs is not barred either by the provisions of S.11, Civil P.C. or by any general principles analogous to res judicata. The appeal must accordingly be dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is granted.