ANNAPURNA DUTTA Vs. SANTOSH KUMAR SETT

JUDGEMENT

(1.) This is an appeal on behalf of the defendant and it arises out of a suit commenced by the plaintiffs for a declaration that the Record of Rights describing C.S. Dag No. 5795 of Khatian No. 811 in Mouza Baranagore District 24 Parganas, as a pathway is incorrect, that the western portion of the said Dag belongs to the plaintiff as appurtenant to Dag No. 5793 and the eastern portion is a private pathway belonging to the plaintiff and their co-sharers, and that the defendant has no right of way over any portion of the said Dag and cannot use it either as a mehtor passage or for discharge of water. There was also a prayer for a permanent injunction restraining the defendant from using the said strip of land for any purpose whatsoever. The defendant in her written statement claimed a right of way over the land in suit. Her case was that the lands on both sides of the disputed strip belonged to the plaintiff's predecessors, that by partition the land to the south fell to the share of one branch who had a right of way over the disputed land, The defendant claimed to have acquired an easement right as transferee of the interest of the said branch.

(2.) The trial Court decreed the plaintiff's suit in part. It held that the western portion of C.S. Dag No. 5795 did appertain to Dag No. 5793 which belonged to plaintiffs 1 and 2. It held however that the eastern portion was a common passage which could be used by the defendant for all purposes except for discharge of foul water over the same. Against this decision, the plaintiffs took an appeal to the lower Appellate Court but as the defendant did not file any cross-objection, the appeal was confined to the eastern portion of the Dag which was found to be a common passage by the trial Court. The Court of Appeal below concurred with the Munsif in holding that the eastern portion of the Dag was a common passage and that the defendant acquired a right of way over it by implied grant, but he held at the same time that the defendant could not use it for discharge of any kind of water, nor could use it as a mehtor passage for cleansing of his privy. It is against this decision that the present appeal has been preferred. The plaintiffs have also filed cross-objection challenging the decision of the lower Appellate Court that the defendant has acquired a right of passage by implied grant over the eastern portion of the Dag.

(3.) The first question therefore which requires consideration is as to whether the defendant has been able to establish a right of passage over the eastern portion of Dag No. 5795 by way of implied grant, as held by the Court below. If this is answered in the negative, no further question arises and the plaintiffs suit must succeed in its entirety. If on the other hand, an affirmative answer is given to the question, the next point for determination would be as to what is the extent of this right. Can the defendant use the passage for discharge of water, or as a mehtor passage for cleansing his privy which stands on the north west corner of his land? On the first point, the Court of appeal below has found that the lands on all sides of the disputed strip belonged to Mohesh, Ramanath and Purna, who were all members of the Manna family. In 1883 there was a partition amongst them and the disputed plot which is Dag No. 17 of the deed of partition was set apart as a common passage for the use of all the co-sharers for going to and coming from the sadar bati and the garden. Chandra Kumar, a son of Rama Nath sold his share to one Surabala, and from Surabala the defendant purchased the land which is now Dag No. 5798. According to the Court of Appeal below, there was by arrangement among the co-sharers a quasi-easement over the disputed land, and on severance of the tenement the defendant got it by implied grant. The propriety of this view has been assailed, and in my opinion rightly, by the learned advocate who appears for the respondent. It is true that an owner can subject one part of his property by a quasi-easement in favour of another part and if afterwards he alienates a portion of his land, the purchaser takes the portion with all the conveniences or quasi-easements which the proprietor has attached to it. But this applies when the quasi-easements are in their nature palpable or obvious, or to speak technically are continuous and apparent. There could be no implied grant where the easements are not continuous and non-apparent (vide Gale on Easement p. 124). Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a formed road existing over one part of the tenement for the apparent use of another portion or there is some permanence in the adaptation of the tenement from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement: Ram Narain Shaha V/s. Kamala Kanta Shaha (1893) 20 Cal 311, Worthington V/s. Gimson, (18(50) 2 El & El 618 and Gale on Easements, p. 165.