R.C. Mitter, J.
1. This appeal is on behalf of the defendant, and is directed against an order of the Addl. Subordinate Judge of Chittagong, dated 18th June 1934, by which he reversed the judgment and decree of the Munsif, First Court, Chittagong, and remanded the case to the trial Court. The judgment is not very clear and the ordinary portion is ambiguous.
2. One Uma Charan Choudhury and others were the owners of a long strip of land which is described as Dag 792. He divided this Dag into three portions, the eastern portion, middle portion and the western portion. On 27th April 1911 he sold the eastern portion to Tara Charan and Jogendra. The plaintiff purchased it from Tara Charan and Jogendra. The middle portion was sold to the defendant and the western one to one Ishan. There are measurements given in all these three conveyances, it being stated that the breadth of each of these parcels of land is eighteen cubits and four fingers. The defendant constructed his house and to the east of his house there is admittedly a pucca drain belonging to the defendant. The disputed land is a small strip of land north to south in length to the immediate east of this drain. The plaintiff filed the suit on the allegation that this strip of land appertained to the land which was sold by Uma Charan and others to his vendors Tara Charan and Jogendra. He asked for a declaration of title to this piece of land, for confirmation of possession therein for a declaration that the defendant had no right of way over it, and for a permanent injunction restraining him from entering upon the land.
3. The defendant pleaded that the suit land appertained to the parcel of land which was sold to him by Uma Charan and others. He put forth an alternative plea that if the suit land or a portion of it did not belong to him, he got a right of way over it, and this right he claimed on three grounds. Firstly he says that it is a way of necessity, secondly he has acquired the right by prescription, and thirdly there was an implied grant to him by Uma Charan and others, the common vendors of himself and of the vendors of plaintiff. There was a Commissioner appointed for a local investigation by the Munsif and he submitted a report. The learned Munsiff could not agree with all the findings of the Commissioner but found that the strip of land 2'. 10' broad immediately to the east of defendant's pucca drain, belonged to defendant, and the rest of the suit land belonged to the plaintiff. On the alternative defence he found that the defendant had established a right of way over the portion of the suit land belonging to the plaintiff.
4. There was an appeal by the plaintiff. He contended that the finding of the learned Munsiff that a portion of the strip of land belonged to the defendant was wrong as also the finding of the learned Munsiff that the defendant had a right of way over the rest of the land. The defendant filed cross-objections and contended that the learned Munsiff ought to have found that the whole of the disputed land belonged to him in proprietary right. The learned Subordinate Judge was of opinion that as both the parties had attacked the Commissioner's report, the Court of first instance ought to have appointed another commissioner for local investigation. In this view of the matter he said that for the purposes of determining the proprietary right to the land in suit a new Commissioner, ought to be appointed. For this purpose he remanded the case to the trial Court and directed that Court to determine the question of title on the evidence already on the record. With regard to the form of this remand order the appellant has raised no question nor has the respondent attacked the form of the remand order.
5. With regard to the claim of easement by the defendant, the Court of appeal below held that inasmuch as the suit was instituted nineteen years, eleven months and twenty five days from the date when Uma Charan and others sold their property to the defendant and the plaintiff's vendor, the claim of the defendant to an easement based on prescription could not be justified. We think that this view of the lower appellate Court is right. During the time of Uma Charan and others, if any portion of Dag 792 was used by them for the purposes of going to the tank, that user was in their character as owners of the land. It is only on 27th April 1911, that Uma Charan and others divided the land into three parts. It is from this date there could be scope for acquisition of a right of easement by prescription. Inasmuch as the suit was instituted before the defendant could use the strip of land as a pathway for a period of twenty years. We agree with the learned Additional Subordinate Judge in holding that the claim based on prescription could not be sustained, because the user of the defendant was not for the requisite period. We do not agree in the contention of Mr. Das that inasmuch as the defendant had in fact been using the pathway after the institution of the suit, his client is entitled to add the period of user after the institution of the suit, for the purpose of acquiring by prescription a right of easement. Such user was not peaceable but disputed after the institution of the suit. In this view of the matter, as we have already said, the claim of the defendant based on prescription, cannot stand.
6. The learned Additional Subordinate Judge has also found that there could not be any claim based on necessity. He pointed out that the disputed strip of land was not absolutely necessary for the enjoyment of the defendant's land, because he has got other ways to go to the tank. This finding at once demolishes the defendant's claim to the pathway as a way of necessity. Mr. Das in the end very fairly conceded that he could not place his case on the basis that the disputed strip of land is a way of necessity. There remains only the' question as to whether the defendant can claim a right of way over the disputed strip of land on the basis of implied grant. In this respect the learned Subordinate Judge is not very happy in his expressions, for in one part of the judgment he makes the following observations:
In Bengal the rule of implied grant does not apply: Shiv Dayal v. Ram Das 1926 Lah 473; Charu Surnokar v. Dokouri Chunder (1882) 8 Cal 956 is not good law, as it was referred to in Purnendu Narain v. Dwijendra Narain (1907) 8 C L J 289, where there was no pucca metalled road.
7. If he meant to lay the proposition in the broad way that in Bengal the rule of implied grant does not apply certainly he is wrong. But the last portion of this involved sentence introduces a qualification by saying 'where there is no metalled road.' Although we are of opinion that this sentence is not a very happy sentence, on the facts which are admitted, there cannot be any question of there being an implied grant in favour of the defendant. The facts are these. Three conveyances were executed on the same day to three sets of persons whom we have already named. In the conveyance in favour of the defendant there was no grant of any right of way over any other land which was conveyed to the other sets of persons. From para.8 of the written statement it is quite clear that there was no formed road during: the time the whole dag belonged to Uma Charan and others. The defendant clearly states in that para that after his purchase of the middle portion and the purchase of Tara Prasanna and Jogendra of the eastern portion the disputed land was left as a common passage by agreement between them. The law on the subject is well settled. Where two tenements are severed, the grantee takes by an implied grant all quasi-easement of an apparent and continuous nature. A right of way is not classed generally amongst quasi-easements of an apparent' and continuous character. It is only when there is a formed road that the quasi-easement can be classed as one of an apparent and continuous nature. At p.165 of 'Gale on Easements,' 11th Edn., the law is summarized by the learned author, after an exhaustive examination of the leading cases in England on the subject thus:
Where two tenements are severed and at the time of severance a formed road exists over one (the quasi servient) tenement for the apparent use of the other (the quasi dominant)' tenement, such formed road being necessary for the reasonable and convenient enjoyment'. of the quasi dominant tenement, a right to use such formed road will, it is submitted, pass by implied grant with the quasi dominant, tenement, even where the only apparent sign is the state of the road on the quasi servient tenement itself. And where the apparent sign of user is a part, not of the tenement retained, but of the tenement conveyed, such as a substantial and permanent door-way or a formed road extending over both tenements, there is ample authority for saying that the doctrine of implied grant applies.
As regards the cases, however, where there is no formed or defined road over the quasi servient tenement so that the way is not evidenced by any apparent sign the rule in the older authorities was clear that upon severance there was no implied grant, in other words, that quasi easements not continuous and apparent in their nature (like an ordinary right of way) did not pass on severance unless the owner used language to show that he intended to create the easement de novo.
8. We have already said that in the conveyance in favour of the defendant, there is nothing which would imply that an easement was intended to be created. The admission of the parties is that during the time of Uma Charan and others, there was no formed or defined road way in any portion of Dag 792. In this view of the matter we hold that there, is no scope for the application of the doctrine of implied grant to the case before us, and on this ground we support the decree of the Court below by which the defendant's claim to easement has been negatived. The result is that the order of the Court below is affirmed, but as there is ambiguity in the order of the learned Subordinate Judge we think it right to summarize the result of the appeal. The result is that the claim of the defendant that he has got a right of easement over the disputed strip of land or any portion thereof is negatived, and the remand order of the learned Subordinate Judge would cover only the question of title to the disputed strip of land. The respondent is entitled to the costs of this appeal: hearing fee is assessed at two gold mohurs. Further costs will abide the result. No order is necessary on the application.
9. I agree.