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Abhoya Chandra Ghosh and ors. Vs. Raj Kumar Ghosh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.504
AppellantAbhoya Chandra Ghosh and ors.
RespondentRaj Kumar Ghosh and ors.
Cases ReferredDeacon v. South Eastern Ry. Co.
Excerpt:
easement of necessity, meaning and limits of. - .....to consider, whether it can be affirmed as a proposition of law that when the necessity for an easement of necessity terminates, the easement also terminates. we are of opinion that the answer must be in the affirmative.3. an easement of necessity is an easement which, under particular circumstances, the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. it is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. such an easement lasts only so long as the necessity exists, for a grant arising out of the implication of necessity cannot be carried further than the necessity of the case requires. reference may, in this connection, be made.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Shamaal Huda in a suit for declaration of a right or way and for a perpetual injunction to restrain interference therewith. The Court of first instance dismissed the suit, and that decision has been successively confirmed by the Subordinate Judge and by Mr. Justice Shamsul Huda. We are of opinion that the view which has commended itself to all the Judges concerned is correct and must be upheld.

2. The plaintiffs based their title on a putni lease granted to them by the defendants on the 24th October 1882. The question has been discussed in the Courts below as to whether the plaintiffs as tenants can acquire a prescriptive right of way as against the landlords-defendants. In our opinion, that question does not really arise on the facts of this case. The title of the plaintiffs is based upon the grant of 1882. Under Section 8 of the Transfer of Property Act, the effect of that grant was to transfer to the plaintiffs the legal incidents of the property demised and such incidents included the easements annexed to the land. The point for consideration, accordingly, is whether, at the date of the grant, there was an easement annexed to the land demised. Now it has been found that up to 1880 the tenants then in occupation of the land had a way of necessity, but after 1880, when the Local Beard established a public way, the way of necessity ceased to be necessary for the enjoyment of the holding. In these circumstances, Mr. Justice Shamsul Huda has held that, as the necessity for the way of necessity came to an end, the way also must be taken to have terminated. If this view be correct, the casement in question had terminated before the grant in favour of the plaintiffs was made. Consequently, under Section 8 of the Transfer of Property Act, it cannot be maintained that the way now claimed was an incident of the property demisted to the plaintiffs. We have thus to consider, whether it can be affirmed as a proposition of law that when the necessity for an easement of necessity terminates, the easement also terminates. We are of opinion that the answer must be in the affirmative.

3. An easement of necessity is an easement which, under particular circumstances, the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Such an easement lasts only so long as the necessity exists, for a grant arising out of the implication of necessity cannot be carried further than the necessity of the case requires. Reference may, in this connection, be made to the decision in Holmes v. Goring (1824) 2 Bing. 76 : 27 R.R. 549 : 9 Moore 166 : 2 L.J.C.P. 134 : 130 E.R. 233, which is an authority for the proposition that an casement limited by the necessity which creates it, ceases if, at any subsequent period, the party entitled can approach the place to which it led by passing over his own land. The appellant, however, has argued that the correctness of this decision has been doubted in subsequent cases, and has invited us to hold that the view just mentioned is not well-founded on principle. We are unable to accept this contention as well founded.

4. In Proctor v. Hodgson (1855) 10 Ex. 824 at p. 828 : 102 R.R. 852 : 3 Com. L.R. 755 : 24 L.J. Ex. 195 : 156 E.R. 674 Baron Parke referred to the decision in Holmes v. Garing (1824) 2 Bing. 76 : 27 R.R. 549 : 9 Moore 166 : 2 L.J.C.P. 134 : 130 E.R. 233, in the following terms: 'The extent of the authority of Holmes v. Goring (1824) 2 Bing. 76 : 27 R.R. 549 : 9 Moore 166 : 2 L.J.C.P. 134 : 130 E.R. 233, is that admitting a grant in general terms, it may be construed to be a grant of a right of way as from time to time may be necessary. I should have thought it meant as much a grant for ever, as if, expressly inserted in a deed, and it struck me at that time that the Court was wrong: but that is not the question now.' Baron Alderson added: 'Probably, if this case be taken to a Court of Error, Holmes V. Garing (1824) 2 Bing. 76 : 27 R.R. 549 : 9 Moore 166 : 2 L.J.C.P. 134 : 130 E.R. 233, will be reviewed.' These observations of Baron Parke were cited by Blackburn, J,, in delivering the judgment of the Court in Pearson v. Spencer (1861) 124 R.R. 656 : 1 B. & S. 571 at p. 584 : 7 Jur. (N.S.) 1195 : 4 L.T. (N.S.) 769 : 121 E.R. 827, in the following terms: 'We certainly do not feel inclined to extend the authority of Holmes v. Goring (1824) 2 Bing. 76 : 27 R.R. 549 : 9 Moore 166 : 2 L.J.C.P. 134 : 130 E.R. 233, so far as to hold that the person into whose possession the servient tenement comes; may from time to time vary the direction of the way of necessity, at his pleasure, so long as he substitutes a convenient way.' This does not show that Mr. Justine Blackbnrn was inclined to question the correctness of the view that a way of necessity terminates when the necessity itself comes to an end. This is clear from the following observation: 'We think we must hold that the way of necessity, once created, must remain the same way as long as it continues at all.' This indicates that a way of necessity may come to an end. This is also clear from the observation of Erle, C.J., in the Exchequer Chamber, Pearson v. Spencer (1863) 3 B. & S. 761 : 8 L.T. (N.S.) 166 : 11 W.R. 471 : 1 N.R. 373 : 122 E.R. 285 : 124 R.R. 667: 'A way of necessity, strictly so called, ends with the necessity for it and the direction in which the plaintiffs says the way ought to go would so end.' This view, in our opinion, is well-founded on reason, and shows that Holmes v. Goring (1824) 2 Bing. 76 : 27 R.R. 549 : 9 Moore 166 : 2 L.J.C.P. 134 : 130 E.R. 233 has been doubted upon a point which does not touch the question in controversy before us Deacon v. South Eastern Ry. Co. (1889) 61 L.T. 377. We hold, accordingly, that the view taken by Mr. Justice Shamsul Huda is correct and his decision must be affirmed.

5. The result is that this appeal is dismissed with costs.

Fletchef, J.

6. I agree.


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