SAILENDRANATH SADHUKHAN Vs. CHHOTELAL SHAW

JUDGEMENT

(1.) This appeal is by the defendant (added defendant) under Clause 15 of the Letters Patent against a judgment of our learned brother R. N. Dntt, J. The appeal arises out of a suit for declaration of the plaintiffs' right of easement for discharging water from their holding No. 72 of the Municipality of Howrah through the appellant's holding No. 71 and for an appropriate injunction.

(2.) The claim is a claim of easement of necessity and, although there was also another ground, namely, of implied grant, the first appellate Court has rightly pointed out that the case of implied grant cannot exist apart from easement of necessity in the circumstances of this case. All the three Courts below have decreed the plaintiffs' suit and, against their concurrent decision, the instant appeal has been filed by the added defendant.

(3.) As already observed, the only point For consideration is whether the right claimed is an easement of necessity. The original two holdings Nos. 71 and 72 belonged to the same person. Holding No. 71 was leased out in the year 1894 to the defendant's predecessor. Holding No. 72 was retained by the owner (landlord). It has now been acquired by the plaintiffs and the basic title claimed is on the basis of a lease from the same landlord. The question is whether, having regard to the situation and configuration of the two holdings, the disputed right can be claimed as an easement of necessity.