law of easement both in India and England draws a distinction between acquisition of easement by presumed grant or operation of law on one hand and by implied grant on the other. In the case of presumed grant, the right of way claimed must be an absolute necessity of the enjoyment of the dominant tenement and the law presumes such a grant or the grant is created by the operation of law in the event of the required conditions being fulfilled. In the case of an implied grant the intention of the grantor and the circumstances prevailing at the time of the grant are material. In support of this contention, Mr. Mukherjee has referred to law relating to Easement in British India by Peacock (Tagore Law Lectures-- 1904 Edition) at page
279. It has been observed by the learned author to the following effect : --
"In the former case the grant is an implied grant arising out the intention of the grantor and the words used by him considered with reference to the state of circumstances existing at the time of grant, whereas in the latter case the grant operates not by virtue of any word used by the grantor, but by virtue of a legal presumption arising on the ground of necessity, whether absolute, or of the qualified character to be found in what are called quasi-easements.
Calcutta High Court
Sm. Pravabati Roy And Anr. vs Dwijendra Lal Sengupta And Anr. on 22 July, 1986
Equivalent citations: AIR 1987 Cal 97, 91 CWN 441
1. This appeal arises out of the judgment and decree passed by the learned Additional District Judge, 9th Court, Alipore in Title Appeal No. 861 of 1974 affirming those passed by the learned Munsif, 3rd Court, Sealdah in Title Suit No. 345 of 1971.2. The defendants are appellants in the instant appeal.
3. The aforesaid Title Suit No. 345 of 1971 was instituted by the plaintiffs respondents inter alia for declaration of the plaintiffs' right of way or passage over the suit property and for permanent injunction restraining the defendants Nos. 1 and 2 from causing any obstruction by raising walls or constructions and also for mandatory injunction directing the said defendants Nos. 1 and 2 to demolish 21/2 ft. to 3 ft. high construction on the northern mouth of the disputed passage and to remove the rubbish, garbage and brickbats from the passage.
4. The case of the plaintiffs respondents was inter alia that the premises Nos. 13, 14 and 15 Girish Chandra Basu Road within Police Station Entally in Calcutta originally belonged to Kumar Pramatha Nath Roy and on 18th Jan., 1956 a trust in respect of those properties was created under the name of Kumar Pramatha Nath Roy Public Charitable Trust. The plaintiffs contended that there is a passage lying to the east of these three premises. From April 1. 1950, the plaintiffs occupied premises No. 14. Girish Chandra Bose Road as tenants and thereafter by a sale deed executed in Nov., 1959 the plaintiffs had purchased the right, title and interest in the said premises No. 14. Girish Chandra Bose Road from Kumar Pramatha Nath Roy Public Charitable Trust. Long thereafter in the year 1968, the defenants Nos. I and 2 purchased the premises No. 15, Girish Chandra Bose Road lying to the contiguous north of premises No. 14 belonging to the plaintiffs. The premises No. 13 which is to the contiguous south of the premises of the plaintiffs was being possessed by the Maternity Centre of the Corporation of Calcutta. It was the case of the plaintiffs that the plaintiffs had been using the disputed passage to the east of the said three premises since 1950 as of right and necessity without any opposition, from anybody. The plaintiffs have also contended that there is one door on the north eastern was of premises No. 14 abutting to the disputed passage leading to Haralal Das Street on the north There is also one door of the privy of premises No. 14 abutting on the disputed passage. The plaintiffs contended that the said privy and the eastern portion of premises No. 14 could not be used without the passage in dispute and the plaintiffs had all along been using this passage for egress from and ingress to Haralal Das Street and also for the purpose of the sweeper for the privy on the back portion of the said premises. The plaintiffs alleged that the defendants Nos. 1 and 2 after their purchase of premises No. 15 Girish Chandra Bose Road submitted a plan to the Corporation of Calcutta proposing some construction on the portion of the disputed passage to the east of the said premises No.
15. The said plan was not sanctioned. But the defendants surruptitiously raised a brick-built construction on the mouth of the passage thereby obstructing the user of the passage and the defendants also heaped rubbish, garbage etc. on the disputed passage. The plaintiffs contended that they had acquired easement right by prescription, grant and user. As the defendants were disturbing the said right of the plaintiffs, the aforesaid suit had been instituted.
5. The said Title Suit was contested by the defendants appellants by filing written statement and it was contended in the said written statement that there was never any passage over the disputed land and the plaintiffs never used the disputed land as passage. The defendants urged that they had exclusive right over the disputed portion of land and as such the suit should be dismissed.
6. The learned Munsif upon consideration of the evidences adduced by the parties and the materials on record decreed the suit in favour of the plaintiffs inter alia holding that the plaintiffs had a right of way over the disputed land and the defendants were not entitled to disturb the user of the said passage by the plaintiffs.
7. Being aggrieved by and dissatisfied with the decision of the learned Munsif, the defendants appellants preferred Title Appeal No. 861 of 1974 which was heard and disposed of by the learned Additional District Judge, 9th Court, Alipore.
8. The Court of Appeal affirmed the judgment and decree of the trial Court inter alia holding that the passage was created in 1936-37 and from the Commissioner's report it transpired that there is a privy in premises No. 14 having a door for entrance facing east on the passge, that there is a door at the middle of premises No. 14 on the eastern side facing the passage, that premises No. 14 with structures thereon had been in existence before 1950 and the disputed portion of the land had been used as passage for coming to the privy of premises No. 14 having a door facing the east and also to the room of premises No. 14 having a door facing to the east, that the two doors at the eastern side of the premises No. 14 on the passage are approachable only through the disputed passage which runs from Harlal Das Street on the north to premises No. 14 through back space of premises No. 15, Girish Chandra Bose Road belonging to the defendants-appellants. The Court of Appeal below had also come to the finding that it was proved that all along the passage had been used for egress and ingress to the eastern side of premises No. 14 and also as a passage for the sweeper for service of the privy having its door on the eastern side. The Court of Appeal had also found that the plaintiffs had proved the existence of the disputed passage and also the user of the said passage by the inmates of premises No. 14 belonging to the plaintiffs ever since its construction. The Court of Appeal had also come to the finding that even according to the witnesses of the defendants the said passage was clear up to 1969 and it also transpired from the evidence that there is a gate within the premises No. 14 on the passage demarcating the portion within premises No. 14 and the portion within premises No. 15. The said gate within premises No. 14 indicates that the disputed passage was being used by the owners of premises No. 14 all along. The Court of Appeal below came to the finding that on transfer of premises No. 14 to the plaintiffs by sale there had been severance of two tenements, the dominant tenement being transferred to the plaintiffs and the servient being retained by the trustees and prior to the transfer of premises No. 14 to the plaintiffs, the passage was in existence and was being used as a passage by the occupants of premises No. 14 and it was impossible to use the eastern door, of the premises No. 14 and it was also not possible to have the service of the sweeper in the privy of the premises of the plaintiffs without using the disputed passage. The Court of Appeal below came to the finding that a case of easement of necessity and also an easement by implied grant on severance of tenements had been proved by the plaintiffs. In view of such finding, the Court of appeal below affirmed the judgment and decree of the trial Court.
9. The defendants thereafter preferred the instant appeal before this Court. It has been contended by the learned Counsel appearing for the appellants that the ground on which the Court of Appeal below had decided the case in favour of the plaintiffs respondents is that the right claimed by the plaintiffs is a right of easement of necessity. The learned Counsel for the appellants contended that the said finding of the lower Appellate court on the question of easement of necessity was clearly erroneous. To constitute an easement of necessity the person claiming such right must establish that without such easement right the property in question cannot be used at all. If there are other means of access to the said premises No. 14, Girish Chandra Bose Road, apart from the right of way claimed over the prermses No. 15 Girish Chandra Bose Road belonging to the defendants, then in law there cannot be any easement of necessity on the disputed passage appertaining to premises No. 15. The learned Counsel contended that from the evidence it transpired that the access to premises No. 14 Girish Chandra Bose Road can be had through Girish Chandra Bose Road itself and there is a 4 ft. passage on the southern side of premises No. 14, Girish Chandra Bose Road forming part of the said premises through which one can go to the rear portion of the house and have access to the privy without having to go through the other portion of the house. It was also contended on behalf of the appellants that there is also a passage on the side of the house in respect of which there is a privy. The plaintiffs respondents could make necessary alterations to the said privy thereby permitting entry through the northern passage. In such circumstances, the right of easement of necessity claimed over the rear portion of premises No. 15 could not be allowed and the suit of the plaintiffs should have been dismissed by the Court of Appeal below. In support of the said contention of the defendants appellants, reliance was placed on the decision of this Court made in the case of Abhoya Chandra Ghose v. Raj Kumar Ghosh, reported in AIR 1920 Cal 850. It has been held in the said decision that an easement of necessity is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement bin without such casement right the dominant tenement cannot be used at all. The appellants also relied on another decision of this Court made in the case of Hindusthan Co-operative Insurance Society Ltd. v. Secy. of State,reported in AIR 1930 Cal 230. wherein it has been held that for claiming easement of necessity it must be shown that the land conveyed is surrounded on all sides by the lands belonging to third persons and the only way of access is over the contiguous land of the grantor. Reference was also made to the decision made in the case of Mariyayi Ammat v. Arunachala Pandaram, reported in AIR 1956 Mad 584 wherein it has been held that an easement of necessity is an easement without which the property cannot be used at all and not merely one for the reasonable enjoyment of the said property and in considering questions of easement of necessity, convenience is not the test but an absolute necessity. Reference was also made to a decision made in the case of Rajpur Colliery Co. v, Pursottam Gohil, wherein it was also held that for establishing easement of necessity it must be shown that the plaintiffs have no other means of going out or coming to his plot except by that particular road. The learned Counsel for the appellants has also submitted that right of passage for a sweeper to have an access to the latrine cannot be claimed as an easement of necessity as the plaintiffs could make provision for such entry by opening a door in his own building and for the said contention, reliance was made to the decision in the case of Md. Ata Husain v. Haji Qudir Baksh, reported in AIR 1930 All 560. The appellants also relied on a decision of the Madras High Court made in the case of K. S. Vaidyanathan v. M/s. Buhari & Sons (P) Ltd., reported in (1969) 1 Mad LJ 435. It was held in the said decision that easement of necessity must be of such a nature without which the property cannot be enjoyed at all and necessity "for reasonable and for convenient user of the property does not constitute the easement of necessity. It has been submitted on behalf of the appellants that the claim of easement by the plaintiffs on the ground that the plaintiffs had acquired such easement right by prescription cannot be accepted. Under S. 15 of the Easements Act, peaceful enjoyment without interruption must be shown for a period of 20 years before an easement by prescription can be acquired. The plaintiffs in the instant case became owners of premises No. 14, Girish Chandra Bose Road by purchase on 12th Nov. 1959. The suit was filed in 1971 and as such there was no question of claiming any right of easement by prescription. The learned Counsel for the appellants have also contended that the plaintiffs had occupied premises No. 14 prior to his purchase in 1959 as tenants from 1950. But it is well established that a tenant cannot have an easement right over the landlord's land. Hence, the period from 1950 up to the purchase by the plaintiffs in Nov. 1959 cannot be pressed into service for establishing easement right by prescription. Referring to Section 8 of the Transfer of Property Act and Section 19 of the Easements Act, the learned Counsel for the appellants has submitted that "Easements annexed thereto" appearing in S. 8 of the Transfer of Property Act and "Easement" appearing in Section 19 of the Easements Act mean easement existing on the date of transfer. It has been submitted by the learned Counsel that the expression "Easements annexed thereto" in Section 8 of the Transfer of Property Act refers to the easement which prior to the transfer was in existence. But it does not refer to an easement which first comes into existence as a consequence of transfer. On the date of transfer, the vendor owned both premises Nos. 14 and 15 Girish Chandra Bose Road. Therefore, the vendor cannot have any easement over premises No. 14 Girish Chandra Bose Road. Hence, there was no occasion to acquire any existing right of easement by the plaintiffs consequent to the transfer made in his favour in 1959. The learned Counsel has also submitted that although in the document of transfer of premises No. 14, Girish Chandra Bose Road in favour of the plaintiffs, it was stated that the premises together with privileges, easements etc. had been transferred, such expressions were mere words of art inserted in the lease and only for such insertion the plaintiff cannot claim any easement right unless it is established that in law there had been existing easement right and such easement right had been transferred. The learned Counsel for the appellants has also submitted that for creating an easement right there must be clear expression of such creation of easement right. For this contention, reliance was made to a decision of the Nagpur High Court in the case of Ahmad Ali Fakruddin Bohra v. Dhondba Dasrath Kalar, reported in AIR 1937 Nag 179. Referring to Section 13(b) of the Easements Act, the learned Counsel for the appellants has submitted that Section 13(b) refers to easements which are apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer took effect. The right of way over the land of someone else is not a continuous easement. It is discontinuous easement within the meaning of Section 5 of the Easements Act. Therefore, a right of way cannot come within the quasi easement right. It has also been contended on behalf of the appellants that the Easements Act does not apply in West Bengal. But relying on English law, it was held by this Court in the case of Annapurna Dutta v. Santosh Kumar Sett, reported in AIR 1937 Cal 661 that on severance of tenements a right of way would pass to the transferee, but only if it was in respect of a formed and constituted road. The learned Counsel has submitted that the aforesaid view of this Court and other Courts following the English principle that in certain circumstances a right of way can pass on severance of tenements is wrong and contrary to the express provision contained in Section 5 and Section 13(b) of the Easements Act and therefore should not be accepted. It has been submitted by the learned Counsel that although Easements Act does not apply in terms in West Bengal, the principles laid down in Easements Act are applicable. The learned Counsel has also contended that even assuming that the view of this Court expressed in the decision reported in AIR 1937 Cal 661 is correct and binding, in the instant case, there is no cogent evidence regarding use of the rear portion of premises No. 15 Girish Chandra Bose Road as a passage and in any event there is absolutely no evidence that any well-formed road existed over any portion of the eastern side of premises No. 15 Girish Chandra Bose Road belonging to the defendants. The learned Counsel has also submitted that in equity also the plaintiffs' claim for easement over the passage belonging to the defendants cannot be entertained. If such claim is entertained, then there will be an intolerable burden and intrusion on the privacy of the defendants and such position was never contemplated or intended when the said premises Nos. 14 and 15 had been transferred to the respective parties. The learned Counsel for the appellants has further submitted that in the aforesaid facts and circumstances the judgments and decrees passed by the Courts below are obviously wrong and should be set aside.
10. In reply to the aforesaid contentions of the appellants, Mr. Mukherjee, the learned Counsel for the plaintiffs respondents has submitted that in the instant case the Courts below have concurrently came to the finding that the piece and parcel of land in dispute is in fact a passage, that the disputed land had been used as passage by the plaintiffs at all material times, that it is admitted on the part of the defence that the passage was created in 1935-36 over the strip of land involved in the suit, that the existence of the passage is also accepted by the Corporation of Calcutta and is reflected in the official plan viz. Smarts Plan as revised by Corporation. There is also finding of the Courts below that it is difficult to accept the defence case that though admittedly in 1935-36 a passage was laid out on the disputed strip of land yet the said passage was never used nor intended to be used as such. From the Commissioner's Report it also transpired that there are two doors of premises No. 14 belonging to the plaintiffs leading to the disputed passage and one of such doors is not that of a privy. It is also the finding of the Courts below that it is not possible to use the two doors or the vacant space on the eastern side (back portion) of premises No. 14 except by using that passage, and the said passage in question was an amenity attached to the said premises during the tenancy of the plaintiffs under the former owner and ripened, into, a right of way on account of the transfer of the property. It has been submitted that in the present case the user of the passage was an absolute necessity for enjoyment of premises No. 14 and as such, on severance of the tenements an easement or quasi-easement was created over the disputed strip in favour of the owners of premises No. 14. The learned Counsel for the respondents has submitted that in a second appeal the facts found by the Courts below cannot be questioned. Hence, the findings that the passage was created in 1935-36 and it existed and was used continuously and there is absolute necessity for the user of the said passage for the enjoyment of premises No. 14 are findings of fact based on evidence. It has been submitted that the main defence of the defendants was founded upon the non-existence of the passage and the total denial of the user of the disputed strip as a passage, but such defence is not available because of the specific findings made by the Courts below. It has been submitted by the appellants that the strip together with the premises Nos. 13, 14 and 15 were formerly owned by the same person and at that stage there was a formed passage over the disputed strip used as an amenity particularly for premises No. 14. In the first conveyance out of the entire block in favour of the plaintiffs the former owner while continuing to retain the rest of the property had recited, inter alia : --"Together with all buildings, fixtures.......... ways, paths, passages.......... rights, liberties, privileges, easement and appurtenances whatsoever hereditaments, buildings and premises belonging or any way appertaining or usually held or enjoyed therewith or reputed to belong or to be appertaining thereto.........."
Such recitals constitute an express grant. Referring to Gale on Easement (14th Edition) at page 269 bottom, it has been contended by the learned Counsel for the respondents that in the case of an express grant, the language of the instrument can be referred to. It is for the Court to construe that language in the light of the circumstances, and, in the absence of a clear indication of the intention of the parties, the maxim that a grant must be construed most urgently against a grantor must be applied. The learned Counsel has also submitted that such construction of the conveyance against the grantor and in favour of the grantee appears to be the rule of construction even in the United States. The learned Counsel for the respondents has, therefore, contended that having regard to the findings arrived at by the Courts below and the terms of the conveyance in favour of the plaintiffs as referred to hereinbefore and the principles of construction laid down by Gale, an express gram of a right over the disputed strip should be held in law. The terms of the grant are to be construed against the grantor and in favour of the grantee viz. the plaintiffs as there was no other person concerned with the remaining properties in question viz. premises Nos. 13 and 15 at the point of time when the transfer of premises No. 14 had been effected in favour of the plaintiffs. Referring to para 9 of the plaint, the learned counsel has submitted that acquisition of the right by way of grant is also a specific plaint case. Mr. Mukherjee, the learned Counsel for the respondent has also submitted that the law of easement both in India and England draws a distinction between acquisition of easement by presumed grant or operation of law on one hand and by implied grant on the other. In the case of presumed grant, the right of way claimed must be an absolute necessity of the enjoyment of the dominant tenement and the law presumes such a grant or the grant is created by the operation of law in the event of the required conditions being fulfilled. In the case of an implied grant the intention of the grantor and the circumstances prevailing at the time of the grant are material. In support of this contention, Mr. Mukherjee has referred to law relating to Easement in British India by Peacock (Tagore Law Lectures-- 1904 Edition) at page
279. It has been observed by the learned author to the following effect : --
"In the former case the grant is an implied grant arising out the intention of the grantor and the words used by him considered with reference to the state of circumstances existing at the time of grant, whereas in the latter case the grant operates not by virtue of any word used by the grantor, but by virtue of a legal presumption arising on the ground of necessity, whether absolute, or of the qualified character to be found in what are called quasi-easements.
11. Referring to the bench decision of this Court made in the case of Dakshinaranjan v. Surendra Lal, reported in (1935) 39 Cal WN 1202 : (AIR 1936 Cal 310), it has been submitted by Mr. Mukherjee that the Division Bench of this Court in the said decision has relied on the observation of Gale on Easements and held "that "where two tenements are severed, the grantee takes by an implied grant all quasi-easements of an apparent and continuous nature. A right of way is not classed generally amongst quasi-easements of such a nature unless there is a formed road over the quasi-servient tenement at the time of severance." Mr. Mukherjee has also referred to the decision of the Patna High Court in the case of Rajpur Colliery Co. . It has been held in the said decision that in some cases the fact that the road had been of a permanent nature, was taken as sufficient by itself for raising a presumption that there was an implied grant of right. If in addition there be a fact of the existence of the continuation of a formed road in the servient tenement with the road in the dominant tenement or if the former road be one leading to some permanent entrance or structures in the dominant tenement, the inference of the former road i.e. the road in the servient tenement being necessary for beneficial enjoyment of the latter becomes much stronger and leads to almost irresistible conclusion that the right had been granted impliedly. Mr. Mukherjee has also submitted that the claims as made by the plaintiffs in the instant case can also be upheld on the basis of doctrine of non-derogation from grant. In support of this contention, Mr. Mukherjee has referred to the observation of Gale on Easements at page 88. The consequence of the application of doctrine of non-derogation from grant is the creation of "the same situation as if an easement has been granted although none has been". In support of the said proposition, Gale has quoted with the approval of the observations made in the decision of Browne v. Flower, reported in (1911) 1 Ch 219. Mr. Mukherjee has submitted that it is true that the front portion of the house of the plaintiffs is accessible from Girish Chandra Bose Road. But the Court of Appeal below has found that a part of the back portion of the said house is wholly inaccessible except through the disputed passage. According to Mr. Mukherjee the said finding makes out a case of easement of necessity. Referring to page 118 of Gale on Easements (14th Edn), Mr. Mukherjee has contended that Gale has observed to the effect -- "If, however, a particular part of the property cannot, without the right claimed, be used for its designed purpose, then it is probably true to say that a right of access for that purpose will arise as of necessity." Mr. Mukherjee has also submitted that the contentions of the appellants that there is a 4 ft. passage on the southern side of premises No. 14 through which one can go to the rear portion and also that there is a passage on the northern side of the house are not correct as the same are blocked and the same do not reach the passage as these are intervened by brick built house and no such plea of existence of passage on the southern or northern side was even put forward in any of the Courts below. In the aforesaid circumstances, the finding of the Court of Appeal below regarding easement of necessity cannot be assailed. Mr. Mukherjee has, therefore, submitted that the plaintiffs respondents have acquired the right to use the portion of the passage lying on the eastern portion of premises No. 15, Girish Chandra Bose Road by express grant and they have also acquired a right to use the passage by implied grant. Mr. Mukherjee has submitted that although the plaintiffs have established the right of easement of necessity over the disputed premises since found by the Courts below, the plaintiffs can succeed even without the consideration of easement of necessity because the plaintiffs are entitled to a decree on the ground of express grant and implied grant for the reasons indicated hereinbefore. On the question of easement of necessity. Mr. Mukherjee has contended that the plaintiffs are also entitled to get a decree. He has referred to Section 13 Clauses (a) and (b) of the Easements Act and also the illustrations under the said section and has submitted that the said clauses and illustrations make it clear that the disputed passage can be claimed by way of easement of necessity or quasi-easement. He has also submitted that in India, for the Hindus, a separate exit for the sweeper has been recognised from early times. It has been held in various cases that it is absolutely necessary among the high caste Hindus that there should be a separate exit for the sweeper to service a privy so that he may not be brought in contact or proximity with the inmates of the house. In support of this contention, reference was made to a decision of the Bombay High Court made in the case of Kanahi v. Damodar, (1891) ILR 15 Bom 552 and also a decision of the Allahabad High Court made in the case of Sm. Narayani Devi v. Phool Chand, .
12. After considering the submissions of the learned Counsel of the respective parties, it appears to me that both the Courts below, have come to the concurrent finding that there is a passage at the back of the premises No. 14, Girish Chandra Bose Road and the said passage runs up to Haralal Das Street on the north and a portion of this passage appertains to premises No. 13 which is the premises of the defendants and the said passage is to the continuous south of the premises of the plaintiffs. The Courts below have also come to the finding that the plaintiffs even before their purchase of the said premises No. 14 had been using the said passage when they were occupying the said premises No. 14 as tenants and after their purchase of the said premises they have been using the said passage for the use of the sweepers for cleaning two bath rooms and privy in the said premises No, 14. As a matter of fact, the door of one of the bath rooms really leads to the said passage and there is no other access to the said bath room except through the passage. Both the Courts below on consideration of the evidences adduced by the parties have come to the findings that the user of the said passage is essentially necessary for the effective enjoyment of the said premises No. 14 and on that score the Courts below have upheld the contentions of the plaintiffs that the plaintiffs have an easement of necessity over the said passage which appertains to premises No. 14 Girish Chandra Bose Road. It has been strongly contended on behalf of the defendants appellants that there cannot be an easement of necessity if there is an alternative passage having access to the premises of the plaintiff and it has been contended on behalf of the defendants appellants that since the premises of the plaintiffs viz. premises No. 14 can be approached through Girish Chandra Bose Road, the right of easement of necessity cannot be granted in favour of the plaintiff. It has also been contended on behalf of the appellants before this Court that the user of the plaintiffs of the said premises No. 14 Girish Chandra Bose Road as tenants cannot be taken into account for computing the period of 20 years for constituting a right of easement by prescription. The occupation qua tenants by the plaintiffs cannot be taken into account because a tenant cannot claim right of easement over the landlord's property. The appellants have also contended that easement by way of grant either express or implied has not been pleaded and proved by the plaintiffs and as such there should not be any consideration on the score of easement of grant. So far as the easement of necessity is concerned, it is true that the premises No. 14 faces Girish Chandra Bose Road and there is access to the premises through the said road but it is the concurrent findings of both the Courts below that one of the bath rooms is approachable only through the disputed passage over which the right of easement has been claimed by the plaintiffs and the said bath room cannot be effectively used without the user of the passage in question. In my view, for the purpose of deciding the case of easement of necessity, it is sufficient if a party claiming easement of necessity can establish that for effective user of a property in the ordinary way for its designed purpose the right of easement over a particular passage is essentially necessary. It does not appear to be a correct principle in law that even if by effecting thorough remodelling of an existing structure, the structure so re-modelled can be used without the right of easement on the disputed property, a claim for easement of necessity will then stand defeated. The Court, in my view, should take a pragmatic view of the facts and circumstances and find out whether the property in question cannot ordinarily be effectively used without taking recourse to right of easement on some other's property. In this connection reference may be made to the observation of Gale on Easement (14th Edition at page 118) since relied on by Mr. Mukherjee "If, however a particular part of the property cannot, without the right claimed, be used for its designed purpose, then it is probably true to say that a right of access for that purpose will arise as of necessity." Whether or not a particular property can be effectively used without using the right of passage over a disputed property is basically a question of fact and both the courts below have concurrently found that the claim of easement of necessity in favour of the plaintiffs. In the aforesaid circumstances, I do not think that in a second appeal, in the absence of any strong and cogent material on the basis of which it can be demonstrated that such finding was perverse, should take any contrary view. Hence, the findings of the courts below that the easement over the passage in dispute is an easement of necessity is accepted by this Cqurt. In that view of the matter, it is not necessary to go into the question of easement by prescription. That apart, even on the score of easement by way of express or implied grant, the plaintiffs are entitled to a decree for the reasons indicated hereafter. So far as the claim of easement by express or implied grant is concerned, it appears to me that there is pleading by the plaintiffs about the right of easement by way of grant and in para 9 of the plaint it has been specifically pleaded that the right of passage along with the premises was specifically conveyed to the plaintiffs. As a matter of fact, the court of appeal below has also come to the finding that a case of easement of necessity and also an easement by implied grant on severance of tenements has been proved. It will appear from Ext. 2 which is the conveyance made by the owners of the said properties in favour of the plaintiffs that premises No. 14 "together with all buildings, fixtures....... ways, paths, passage .....rights, liberties, privileges, easement and appurtenances whatsoever, hereditaments, buildings and premises belonging or any way appertaining or usually held or enjoyed therewith or reputed to belong or to be appertaining thereto...." have been conveyed. It has been observed in Gale on Easement (14th Edition) that in the case of an express grant, the language of the instrument can be referred to. It is for the court to construe that language in the light of circumstances, and, in the absence of a clear indication of the intention of the parties, the maxim that grant must be construed most urgently against a grantor must be applied. The plaintiffs respondents, in my view, are justified in their contention that having regard to the findings arrived at by the courts below, the terms of the conveyance in favour of the plaintiffs and the principle of construction of express grant as discussed hereinbefore, an express grant of a right of way over the disputed strip appears to have been made by the conveyance dated 11th Nov 1959 in favour of the plaintiffs. At the relevant point of time when the said conveyance was made in favour of the plaintiffs, there was no other person concerned excepting the owners and the plaintiffs. Even assuming that from the conveyance, an express grant cannot be spelt out, in my view, the plaintiffs can also succeed on the score of implied grant of the said right of passage in their favour. In the case of an implied grant, the intention of the grantor and the circumstances prevailing at the time of grant are material. For the purpose of finding an implied grant the intention of the grantor and the words used by him with reference to the set of circumstances existing at the time of grant should be taken into consideration. It is the specific finding of the court of appeal below that the said disputed land had been used by the plaintiffs at all material times and it was admitted on the part of the defence that a passage was created in 1935-36 over the strip of land involved in the suit. The existence of passage was also accepted by the Corporation of Calcutta and is reflected in the official plan i.e. Smart's plan. The said passage was allowed to be used by the plaintiffs by the then owners when the plaintiffs were tenants in respect of the said premises No. 14 Girish Chandra Bose Road and when the said premises was transferred in favour of the plaintiffs, the plaintiffs have also used the said passage. In the deed of conveyance for the premises No. 14 the property together with the path, passage etc. had also been conveyed and it does not appear to me that such expressions appearing in the deed of conveyance were mere expressions of art as sought to be contended by the appellants. From the attending circumstances, therefore, a case of implied grant in favour of the plaintiff can also be found. In the aforesaid circumstances, even if the plaintiffs do not succeed on the score of easement of necessity, they are entitled to get a decree for the right of user of the said passage and other consequential reliefs on the score of easement by way of express grant and also by way of implied grant. Hence, there is no occasion to interfere with the judgment and decree passed by the courts below and the appeal, therefore, fails and is dismissed. In the facts of the case. 1 make no order as to costs.
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