Subir Kumar Deb vs Jyotirindra Nath Deb

Datta, J.—This suit was filed by Subir Kumar Deb and three others as trustees of Anath Nath Deb Trust Estate against Jyotirindra Nath Deb and four others, the last of whom Sikharendra Nath Deb was a trustee who refused to join with the Plaintiffs for a mandatory injunction directing the Defendants Nos. 1 to 4 to provide independent drains for the passage and/or discharge of water, filth, sewage and other obnoxious matters arising or issuing out of the portion of the premises 67D, Beadon. Street, Calcutta, mentioned in the plaint and to stop, prevent the passage and/or discharge any such water, filth, sewage or obnoxious matters as aforesaid by or through the said underground drain situate, lying in and/or appertaining to the portion of the premises No. 67D, Beadon Street, Calcutta, purchased by or on behalf of the said trust estate under the Indenture dated January 25, 1933 and now belonging to the present trustees of the trust estate; a permanent injunction restraining the Defendants 1 to 4 by themselves, their servants, agents representatives and/or assigns from discharging and/or passing or allowing or permitting or causing to be discharged and/or passed any water and/or filth and/or sewage and/or any other obnoxious matters issuing out of or from their portion of the said premises No. 67, Beadon Street, Calcutta, by or through the said underground drains situate, lying in and appertaining to the portion of the premises No. 67D, Beadon Street, Calcutta, purchased by, or on behalf of the trust estate under the said Indenture dated January 25, 1933 and committing or continuing to commit any such acts of trespass or nuisance as mentioned in the plaint, damages, enquiry into damages, declaration that the Defendants have no rights of easements and other incidental reliefs.

One Anath Nath Deb died intestate seized and possessed of considerable properties and leaving him surving five sons namely, Tripath Nath Deb, Pasupati Nath Deb, Nripati Nath Deb, Sripati Nath Deb all since deceased and Bhupati Nath Deb as his heirs and legal representatives under the Bengal school of Hindu law. On September 23, 1919, the said Tripath Nath Deb, Pasupati Nath Deb, Nripati Nath Deb, Sripati Nath Deb and Bhupati Nath Deb created a trust of certain immoveable properties belonging to them including premises No. 67D, Beadon Street, Calcutta, for religious and charitable purposes. The trust estate was known as Anath Nath Deb Trust Estate. The original trustees were the settlors, Tripath Nath Deb, Pasupati Nath Deb, Bhupati Nath Deb, Nripati Nath Deb and Sripati Nath Deb. In or about 1933, Bhupati, Nripati, Sripati, Nirojendra Nath Deb son of Tripath Nath Deb and Surhid Nath Deb son of Pasupati Nath Deb were the trustees of the said Anath Nath Deb Trust Estate.

A strip of land measuring by estimation one cottah six chat tacks fifteen square feet, a part of 67E Beadon Street, Calcutta, situate to the south of the trust premises No. 67D Beadon Street, practically formed part of the Thakurbati situate on 67E Beadon Street and was used as such all along.

On January 25, 1933, the said Nirojendra Nath Deb, Jyotirindra Nath Deb, Sikharendra Nath Deb, Alakendra Nath Deb, all sons of Tripath Nath Deb and Sm. Chandra Prova Deb, widow of the said Tripath Nath Deb, owners of the said strip of land, conveyed the said strip of land, then included in premises No. 67D, Beadon Street, Calcutta, in fee simple in possession or such equivalent thereto free from all encumbrances at a price of Rs. 10,00 to the trustees of Anath Nath Deb Trust Estate for the improvement and development of the said trust premises 67D, Beadon Street. The said strip of land or portion of the said premises No. 67E, Beadon Street, Calcutta, has since the purchase been amalgamated with and was treated, as forming the western part of the said premises No. 67D, Beadon Street, Calcutta, the trust premises. In or about May 1936, Sujit Kumar Deb and Sunit Kumar Deb, two of the sons of the said Pasupati Nath Deb deceased instituted a suit in this Court being Suit No. 791 of 1936 against the said Bhupati Nath Deb, Nripati Nath Deb, Sripati Nath Deb, Nirojendra Nath Deb and Surhid Kumar Deb, since deceased, the then trustees of the said trust estate for removal of the said Defendants from the office of the trustees, for appointment of new trustees in their place, enquiries into account and other reliefs. In course of hearing of the said suit being Suit No. 791 of 1936 Nripati Nath Deb, Nirojendra Nath Deb, Sm. Chandra Prova Deb and Sripati Nath Deb died. Thereupon their heirs and legal representatives were added as parties in that suit being Suit No. 791 of 1936.

In or about 1940 the structures on the said strip of land or portion of the said premises No. 67D, Beadon Street, purchased by the trustees on January 25, 1933 were demolished under the orders of the Corporation of Calcutta.

On May 25, 1951 there was a decree in the said suit being Suit No. 791 of 1936 whereby Surhid Kumar Deb since deceased, Sunit Kumar Deb and Rabindra (the Plaintiffs herein) and the said Sikharendra (the Defendant No. 2) were appointed trustees of the said trust estate and Mr. S.K. Basu, Barrister-at-Law, was appointed a Special Referee to frame a scheme regarding the management and administration of the trust estate. Since the passing of the said decree the Plaintiffs and the said Sikharendra Nath Deb have been and are acting as such trustees and constitutes the present board of trustees of the said trust estate.

On February 18, 1952, a final decree was made in the said Suit No. 791 of 1936 whereby the present trustees were directed to erect or rebuild a suitable four-storied building on the said vacant land forming the western portion of the said premises No. 67E, Beadon Street and to let out the whole of the new building.

Thereafter the trustees discovered and/or found that the Defendants Nos. 1 to 4 were wrongfully and/or surreptitiously and/or passing, causing and/or allowing or permitting to discharge or pass water, filth, sewage and other obnoxious matters arising out of and from the portion of premises No. 67D, Beadon Street, by or through underground drains situate, lying in and appertaining to the portion of the said premises No. 67D, Beadon Street, Calcutta, which were sold to the trust estate. Thereupon at a meeting of the present trustees, including the said trustees Sikharendra Nath Deb held on July 8, 1951, it was inter alia resolved that steps should be taken for removal of the said underground drains. Thereupon, on January 19, 1953, this suit was filed for reliefs already mentioned.

The facts stated hereinbefore were more or less stated in the plaint.

It was further stated inter alia in the plaint that the Defendants have in spite of repeated requests wrongfully failed or declined to provide independent drains for the passage and/or discharge of water, filth, sewage and other obnoxious matters so arising and /or issuing out of or from their present premises No. 67D, Beadon Street, and/or to stop, prevent, cut off and/or discontinue the wrongful passage and/or discharge of such water, filth, sewage and other obnoxious matters as aforesaid by or through the said underground drains belongings to the trust estate and are persisting in their wrongful acts and are falsely and wrongfully making claims to which the said Defendants are not entitled. It was further asserted that the Defendants No. 1 to 4 are wrongfully denying and/or are interested inter alia to deny the rights of the trust estate. In the premises the trustees were suffering loss and damage and apprehends further serious and irreparable injury and prejudice. It was further stated that as the interest of Sikharendra Nath Deb in his personal capacity was in conflict with his duty as a trustee and as he had refused to join the Plaintiffs, he was added as a co-Defendant.

The Defendants Jyotirindra Nath Deb, Defendant No. 1 and Alakendra Nath Deb, Defendant No. 3, filed a joint written statement.

In the written statement the Defendants asserted that the said right to drain by underground drains had been continuously and apparently exercised by them from the time the building of premises No. 67D, Beadon Street was constructed and the same has been exercised and the said underground drains have been in possession of the vendors even after the said Indenture dated January 25, 1933. It was further asserted that there is no other means of drain age of the premises No. 67D, Beadon Street, retained after the said Indenture dated January 25, 1933. Hence, the right to drain by underground drains running through or under the said portion of premises No. 67D, Beadon Street, sold to the trust estate was an easement of necessity and/or necessary for the beneficial enjoyment of the portion of premises No. 67D, Beadon Street, not sold to the trust estate.

It was further asserted that the said conveyance dated January 25, 1933, was affected with an implied reservation of a right in favour of the portion of the premises No. 67D, Beadon Street, retained over the portion of the said premises sold to drain by underground drains and in particular by or through the said portion of the underground drains which now run under the portion sold. The said right has been and is being exercised peaceably and openly and as an easement and as of right by the owners of the portion of premises No. 67D, Beadon Street, retained since January 25, 1933. It was also asserted that the sale under Indenture dated January 25, 1933, was made upon the oral agreement with the then trustees of the trust estate that the aforesaid right to drain by underground drains and in particular by and through the underground drains which run through and under the portion sold would continue to be enjoyed and exercised by the owners of the remaining portion of premises No. 67D, Beadon Street and the said right has been and is exercised since then and costs and expenses have been incurred by the said owners in order to repair and maintain the said drains.

It was further asserted that the portion of premises No. 67D, Beadon Street, which was sold to the trust estate was allowed to be used by the vendor in connection with the periodical festivals of the deities and denied that the said portion formed part of the Thakurbati and/or was so used at any time. It was further asserted that the consent decree dated May 25, 1951, was void and does not bind the Defendants. The said decree was a collusive decree and was prejudicial to the interest of the trust. The appointment of the said trustees was invalid and inoperative.

On May 18, 1962, as per direction of the Court the Defendant gave particulars of para. 7 of the written statement in these words:

The agreement took place between Defendants Nos. 1, 2 and Srimati Chandra Prova Deb since deceased, mother of Defendant Nos. 1, 2 and 3 and Sarojendra Nath Deb and Nirojendra Nath Deb on behalf of the Defendants and Nirojendra and Sudhir on behalf of the then trustees and the negotiation of the oral agreement took place three days before the conveyance was executed and the oral agreement was actually arrived at after the conveyance was executed.

In this state of pleadings following issues were settled:

Were the Plaintiffs and the Defendant Sikharendra Nath Deb appointed as trustees of Anath Nath Deb trust estate under the consent decree dated May 25, 1951?

Have the Defendants the right to drain by underground drains running through and under the said portion of premises No. 67D, Beadon Street, sold to the trust estate by and under the indenture dated January 25, 1933, as an easement of necessity and/or for the beneficial enjoyment of the portion of premises No. 67D, Beadon Street, not sold to the trust estate?

Was the sale of the portion of the said premises No. 67D, Beadon Street, affected with the implied reservation of a right in favour of the portion of premises No. 67D, Beadon Street, retained over the portion of the said premises sold as pleaded in para. 6 of the written statement?

Was the right to drain by underground drains running through or under the said portion of the premises No. 67D, Beadon Street, an easement of necessity and/or for beneficial enjoyment of the portion of premises No. 67D, Beadon Street, retained?

Was there an agreement as pleaded in para. 7 of the written statement?

Had those rights or right been exercised peaceably and openly and as of right by the Defendants?

7(a) Have the said right to drain by underground drain been continuously and apparently exercised by the Defendants during the said period and the said underground drain been in possession of the vendor since then as alleged in para. 5 of the written statement?

7(b) And has the said right been and it being exercised peaceably and openly as of easement and as of right by the owners of the portion of the premises No. 67D, Beadon Street, retained since January 25, 1933?

Did the portion of the premises No. 67D, Beadon Street, sold form part of the Thakurbati or was used as such at any time?

Were the Defendants wrongfully or surreptitiously discharging or passing or causing or allowing or permitting to be discharged or passed water, filth, sewerage and other obnoxious matters as alleged in para. 16 of the plaint?

Did the Defendants in spite of the repeated request fail or decline to provide independent drain as alleged in para. 17 of the plaint?

Have the Plaintiffs by reason of wrongful acts and conduct mentioned in paras. 16, 17 and 18 of the written statement suffered and continued to suffer loss, damage as alleged in para. 19 of the plaint?

Is the suit barred by limitation?

To what reliefs, if any, are the Plaintiffs entitled? At the time of the arguments the parties abandoned issues Nos. 1, 6, 7, 8, 9, 10, 11 and 12 and confined their submissions to issues Nos. 2, 3, 4, 5 and 13.

In these circumstances, Mr. Dutt, learned Advocate; appearing for the Defendants resisted the suit on several grounds and that with tenacity and considerable industry and ability.

Mr. Dutt strenuously submitted that there was an express agreement permitting the user of the drains through the part of premises No. 67D sold to the trustees in 1933.

In para. 7 of the written statement the Defendants Jyotirindra Nath Deb and Alakendra Nath Deb started inter alia as follows:

In any event these Defendants state that the sale under the indenture dated January 25, 1963, was made upon the oral agreement with the then trustees of the trust estate that the aforesaid right to drain by underground drain and in particular by and through the underground drains which run through and under the portion sold would continue to be enjoyed and exercised by the owners of the remaining portion of premises 67D, Beadon Street and the said right has been and is being exercised since then and costs and expenses incurred by the said owners in order to repair and maintain the drains.

The case of verbal agreement is devoid of any particulars. Hence, I directed the Defendants before evidence was laid to give particulars. Mr. Dutt, learned Advocate, appearing for the Defendants gave the following particulars:

The agreement took place between Defendants No. 1, 2 and Sm. Chandra Prova Debi since deceased mother of Defendants No. 1, 2 and 3 and Sarojendra Nath Deb and Nirojendra Nath Deb on behalf of the Defendants and Nirojendra and Sudhir Kumar Deb on behalf of the then trustees of the trust estate and the negotiations for the oral agreement took place three days before the conveyance was executed and the oral agreement was actually arrived at after the conveyance was executed.

The written statement suggest that the oral agreement was made before the execution of the conveyance or, in any event, was arrived at simultaneously or contemporaneously. The particulars, on the other hand, suggest that there were merely negotiations before the execution of the conveyance on January 25, 1933 and the oral agreement was actually arrived at after the conveyance was executed.

It is significant to notice that no particular date as to when the agreement was arrived at was given in the particulars.

This weakens the case of an oral agreement.

Tripath Nath Deb died leaving his widow Srimati Chandra Prova Deb, Nirojendra Nath Deb, Jyotirindra Nath Deb, Sikharendra Nath Deb and Alakendra Nath Deb who were all alive at the date of execution of the conveyance. Chandra Prova Deb and Nirojendra Nath Deb died after the execution of the conveyance in 1933.

Jyotirindra Nath Deb, the Defendant No. 1, the eldest surviving son of Tripath Nath Deb has not given evidence to support the oral agreement. Sikharendra Nath Deb, the next son of Tripath Nath Deb, who is now a trustee has not given evidence to support the oral agreement.

Sikharendra Nath Deb, the next son of Tripath Nath Deb, now aged about 46 and aged only about 13 years in 1933 when the conveyance was executed has only deposed before me to support the case of oral agreement.

The absence of Jyotirindra Nath Deb and Sikharendra Nath Deb from the Box further weakens the case of the oral agreement.

The conveyance dated January 25, 1933 prima facie militates against the case of an oral agreement. The Defendants have not disclosed any documentary evidence to support the case of an oral agreement.

In these circumstances, the evidence of Alakendra Nath Deb, then a boy, requires close examination.

Alakendra Nath Deb, Defendant No. 3, said that there was a three-storied structure on the portion of 67D, Beadon Street, which was conveyed by them to the trustees in 1955.

He further said that in or about 1929 the house on 67D, Beadon Street, was constructed. This is the dwelling house of their branch of the family. At one stage he suggested that he came to know about the drains in the plot of land sold to the trustees after the conveyance. He later on said that he came to know about the drains at that point of time when there were talks with their mother about the sale. That was in the year 1933, about four or five months prior to sale. He further said that there were filtered and unaltered water pipes. There was also the sewer drain. The sewer pipe is not visible from the surface. The manhole of the pit is only visible from the surface. He at one stage stated that one of the water lines is visible. The visible water line carries filtered water. He came to know that there was the other water pipe line when the Corporation Assistants came and repaired the ferrule and did other things. These pipes were there since the time their house was built He later on said that the portion of 67D, Beadon Street, when sold was vacant. He does not remember when the structures on this plot of land was removed or destroyed.

He suggested that at the persuasion of the other trustees, his elder brother Nirojendra Nath Deb agreed to convey the hatched portion of the land of 67D to the trustees. "When these talks regarding the sale of the hatched portion took place he was very young then. His mother was his guardian and she objected to this sale because the valuation of that common passage was low and they said no, there is nothing to object to. It is a matter amongst us and we say so long we shall remain alive no one will disturb the things, drains water sewerage etc. which are there. He again suggested that he was present when the talks about the sale of the said hatched portion of the land took place with the mother about four or five months prior to the sale. In cross-examination he repeated that his elder brother Nirojendra mainly proposed the sale but after that otter brothers joined. His brother and mother did everything. He heard about this matter. He cannot say who were their lawyer for he does not remember. He knew some of the terms on which this plot of land was sold though he was a minor and a student then in 1933. In 1933, he heard that the drain and the water lines were there and afterwards he heard from his elder brother about certain other matters. In that year he only came to know of that drain and water line. In 1933, at that point of time there were discussions regarding the drain and water pipes in his presence. He does not remember whether there was any discussion about any other point or terms in his presence. He admitted that his presence Was not necessary, but he happened to be present there; so he would hear something and then he might go out. He heard the discussions about the sale between his mother, the trustees and his elder brother Nirojendra Nath Deb. When be was asked why the agreement was not incorporated in the conveyance he said that in a hurry that escaped notice.

Alakendra Nath Deb further said in the early stage of his examination that after he had attained majority his uncles who were trustees at that point of time came to their house "when he pointed out to them that he had been a minor and did not understand anything and did not know what happened after that. To that his uncle said, don''t be afraid. So long we shall remain alive no one would disturb the drains, water pipes etc. and the present trustees ha future would also do nothing before the days the plot of land is sold". On this occasion according to him his elder brother was also present. In cross-examination he again said, "yes after I had attained majority, once the trustees came at the request of my elder brothers and told me that I need not be afraid because everything would continue as it were and nobody would disturb the same and the same had been there even now in the very same condition." The trustees were at that time Ray Bahadur Bibhuti Nath Deb, Nripati Nath Deb,, Surhid Nath Deb and Sripati Nath Deb; my mother, myself and my uncles and my elder brothers and the trustees were present. He cannot recollect whether his other brothers were present. The trustees came to their house at the instance of their mother. This assurance was given after 1937.

He admitted that he and his brother Jyotirindra Nath Deb verified the written statement. He at first said that he believes that this case of assurance had been made in the written statement. Later on he stated that he could not tell whether the draftsman "has incorporated it in the written statement or he has through mistake dropped it." But he remembers that he "narrated all the facts to the gentleman who drew this written statement." He said that the case of assurance "is absolutely true" but "then; I cannot tell you the reason why it has not found a place here in the written statement." He did not take anything in writing because the trustees had already told their mother when she requested them to incorporate these things after the conveyance, "Look here Boudi, conveyance has already been executed, money has been paid and if we have to incorporate these things again we shall have to get into lot of trouble but when we are telling you about this thing, can''t you believe us. It is amongst the members of the very same family." These, things were repeated again after he had attained majority. "We could not say anything to their face because we regarded and respected them much." Moreover, he did not think any necessity of keeping them in writing.

He further stated that they were not disturbed for all these long years before the filing of the suit. The trustees had not given any notice to them before filing the suit. He suggested that the trustees wanted them to leave the house or to go to some other place and involve them into heavy expenses. Later on, he suggested that there was on one occasion some trouble between them and Sunit Kumar Deb regarding the properties. "There is a long history behind it. It is as a result of that that this suit regarding the drain is here. And after Sunitbabu became a trustee, this suit was filed."

Before the suit was filed he approached the trustees, through his brother Sikharendra Nath Deb one of the trustees when Kamal Kumar Deb and Rabindra Nath Deb said, "Sunit and Surhid Kumar Deb are the two elder brothers amongst us so let us take their opinion if they, are agreeable to settle them". Then they went to the house of Surhid Kumar Deb and Sunit Kumar Deb when they said that it would be risky for them to effect a settlement now, it would be better, suit having been filed when it would come up for hearing before the learned Judge, settlement should be effected and we would effect that.

The evidenceof Alakendra Nath Deb is often vague and sometimes inconsistent. His explanations are unsatisfactory. It is difficult to rely on such evidence and in any event, in the circumstances mentioned above. Therefore, in my opinion, the evidence of Alakendra Nath Deb by itself does not establish the case of oral agreement and far less when the other circumstances, are taken into consideration.

In the circumstances, I hold that there was no oral agreement as suggested in the written statement or at all between the trustees and the then heirs of Tripath Nath Deb.

This takes us to the facts and circumstances which have a bearing on the controversies relating to easement arising out of land without an express agreement.

One Anath Bandhu Deb, a wealthy citizen of Calcutta, owned amongst others a big plot of land in Beadon Street. After his death there was a partition suit between his sons. In that partition suit it was agreed that the said big plot of land would be divided into several plots and that they will, create a trust in respect of premises No. 67D, Beadon Street, Calcutta. It also appears that under the said partition decree premises No. 67E was allotted to the Defendants in this suit or their predecessors-in-title and premises No. 67A and 67B were respectively allotted to two other branches of the same family.

Premises No. 67D except for a strip of land was immediately to the north of premises No. 67E the trust property. The said strip, of land lies to the east of the debuttar property premises No. 67E. This strip of land opens out on the Beadon Street so that ingress and egress were possible to 67E through this passage. It does not however appear that it was used as a means of ingress or egress but it is clear that it was used for laying inter alia the sewer lines of 67D so that the drainage of 67D was connected with the main sewer on Beadon Street, Calcutta. There is an open strip of land to the north of 67D which carries a sewer ditch. There is a ''narrow strip of land extending to about 50 ft. at right-angles to the north of this open strip of land. This narrow strip of land after running for 50 as aforesaid falls into Jatindra Mohan Avenue, Calcutta.

On the south of 67D and 67E there was a common passage. On the south of this common passage there were the premises 67A and 67B, Beadon Street, Calcutta. This common passage at one end opened out in the sewer ditch and at the other end opened out in Latoobabu''s Lane. The sewer lines of premises No. 67A and 67B evidently passed through this common passage. The sewer line of the trust property 67E however opened directly On its south to Beadon Street.

Mr. P.C. Chatterjee, Engineer and Surveyor who gave evidence on behalf of the Plaintiff said that there were three alternative methods or ways of carrying this sewer of 67D besides the existing sewer line along the strip of land lying to the east of 67E purchased by the trust estate in 1933 and opening out in Beadon Street, Calcutta.

Mr. T.K. Ghosh, Engineer and Surveyor, gave evidence to controvert this case aided by Mr. R.N. Das, a plumber and sanitary engineer.

Mr. Chatterjee''s evidence was severely criticised on the ground that he more often relied on his impressions rather than on actual inspection and measurement. There is a good deal of force in ''this criticism. On the other hand it was said that Mr. T.K. Ghosh was far from frank to the Court and always tried to be evasive and qualify his answers when in difficulty. There is again in my opinion, some force in this criticism. It was again said that Mr. R.N. Das had no engineering qualification and his evidence should not be relied upon. Mr. R.N. Das, however, Was a plumber with experience who actually inspected the site and hence in my opinion his evidence cannot be outright discarded. Be that as it may, in my opinion, on the whole the evidence of these three gentlemen bring out the facts necessary for ''the purpose of the suit.

Mr. Chatterjee suggested that it was possible to connect the sewer line of premises No. 67D to the common sewer line running north to south opening out on the south in Latoobabu''s Lane between, on the one hand, premises Nos. 67A and 67B and on the other hand, premises Nos. 67D and 67E. He proceeds on the basis that not only the passage is common but that the sewer line is common not only to 67A and 67B but also at any rate common to 67D. There is no evidence to show that it is a common sewer common to 67D. Hence, it is clear that this alternative method is not workable.

Mr. Chatterjee suggested another alternative route for carrying the sewer line of premises No. 67D by taking the sewer of premises No. 67D through an independent sewer line through, the common passage opening out in Latoobabu''s Lane.

Mr. Dutt, learned Advocate, appearing for the Defendants, submitted that this alternative method is not workable.

This common passage which has a width of 16 ft. at the point where the vacant strip of land between 67D and 67E opens out in the common passage has only a width of 8 ft. at the point where the common passage opens out in Latoobabu''s Lane. The width is 8 ft. not only at the mouth of Latoobabu''s Lane bat is more or less 8 ft. upto a length of about 24 ft. along the common passage towards the south.

In this restricted part having a vMth width of only 8 ft. there are eight pipe lines; telephone lines, electric cables, electric junction box and a master trap. The master trap itself occupies about 4 ft. of this narrow passage or outlet leaving only another 4 ft. for this eight pipe lines, telephone lines, electric cables and electric junction box. Therefore, at this end at the mouth of this passage opening out in Latoobabu''s Lane there is no sufficient space for constructing another master trap for carrying an independent sewer line from 67D to Latoobabu''s Lane. Moreover, if another master trap is constructed at the end of this restricted passage there is a possibility that the water carried in the eight pipe lines may be contaminated. Further, proper slope would not be obtainable for the new line. The total length of this sewer line would be 350 ft. if one ft. six inches is allowed for every 100 ft. then the total slope required is 5 ft. 6 inches. The total depth of the manhole in the Latoobabu''s Lane is 4 ft 6 inches. Therefore at the other end the sewer pipe would be one ft. above the ground floor. Moreover, there would be difficulty in actually laying down the new sewer line for that cannot be done without disturbing the existing pipe lines, electric lines, telephone lines and the electric junction box. Further, there is no knowing whether consent would be available from the parties concerned. Further, the existing drains of premises No. 67D will have to be discarded excavation will have had to be made at new places where new drains have to be laid. Moreover, one of the pipe lines carrying water which has been placed diagonally will create further complication in the laying of the new sewer lines.

It is now necessary to consider whether these are insurmountable difficulties.

The water pipe can be bunched together and laid about 2 ft. below the surface and the sewer drain can be placed rather below this bunched water pipe lines. The evidence of Mr. T.K. Ghosh shows that bunching of the water pipe lines is possible with the consent of the owners. Hence, there would be no chance of any contamination. The new master trap may be either placed on the north of the existing master trap so that clear 4 ft. would be left. In the alternative a master trap may be constructed in Latoobabu''s Lane which will obviate all difficulties. A gradient of 1 ft. for every 100 ft. is not an essential requirement. A gradient of 6" to 7" for every 100 ft. is sufficient. In fact, T.K. Ghosh has been unable to support that a gradient of I ft. for every 100 ft. is a pre-requisite either under the rules of the Corporation or according to general consensus of opinion of engineers. Mr. T.K. Ghosh relied upon an engineering manual which itself shows that in certain cases a gradient of 6" to 7" may be sufficient. Mr. Ghosh also admitted that the electric junction box would not stand in the way. Mr. T.K. Ghosh also admitted that a master trap may be constructed on Latoobabu''s Lane subject to the approval of the Corporation. The pipe lines diagonally placed can be readjusted or in any event it can be placed in such a way that it would not obstruct the laying of the new line. The electric lines and the telephone lines cannot offer any difficulty. There would be difficulties in laying down a new sewer pipe, but it is; not impossible; to lay down a new line. Moreover, the cost would not be prohibitive.

Hence, in my opinion, if consent, of the necessary parties can be obtained ''there would be no insuperable engineering difficulty in laying down a new sewer line, carrying the sewer of premises No. 67D through the common passage. The Defendants have not established before me that they applied for such consent and the same was refused.

Mr. Chatterjee further suggested that an alternative method of carrying the sewer of 67D would be to have a connection through the existing sewer line in the sewer ditch to the east of premises No. 67D which after turning at right angles falls in a master trap which ultimately opens out in Jatindra Mohan Avenue. Mr. Chatterjee did not admittedly open the sewer ditch. He did not find out whether there is an existing sewer line and if there is existing sewer line what is the diameter of the sewer. He has not again found out what is the depth at which the sewer line lies below the road surface. He has not again inspected and measured what he has described as the gully pit. He has not again opened the manhole or measured its depth. He cannot say where the sewer line is connected with the manhole. He has not measured the sewer line. Therefore, if the only evidence before me was the evidence of Mr. Chatterjee there would have been no difficulty in coming to a finding that his evidence is no evidence at all but, full of guess-work and there was no such alternative mode. Mr. R.N. Das and possibly Mr. Ghosh have inspected the sewer line and the gully pit. Mr. Das said that the depth of the sewer line from road surface is 1 ft. 8�. The diameter of the pipe is 6". The level, of the courtyard of 67D from the road surface, that is, the surface of the drain is 1 ft. 6". Therefore, the total depth is 1 ft. 8�" plus 1 ft. 6" equal to 2 ft. 2�".

It is clear from his evidence that no connection can be given through this sewer ditch as the lamphole is serving the sewer of premises situate on Jatindra Mohan Avenue which thus has opened and checked. Further, no connection can be given through the gully pit firstly because it is not a gully pit but a wide gully, according to Mr. Das who had opened it out. In any event, night soil pipe cannot be connected to a gully pit with mechanism to drain out water. Again, in order to take this connection from the sewer ditch a new 6" pipe line has to be taken through the plinth of the three-storied building which, according to Mr. Ghosh, may prove dangerous.

The distance of this suggested new line would be about 200 ft. The sewer line rise by 3 ft. 6" from the courtyard level, that is to say, 6" above the plinth level. This will damage the floor made of marble. Further, the required depth will not be available. The slopes have to be reversed. The new lines have to be laid after discarding the old lines. The boundary wall between the premises No. 67D and the sewer ditch has to be broken. Hence, this alter-notice cannot be worked out in practice according to Respondents.

In order to meet this case Mr. Sen, Learned Counsel on the evidence before me suggested that an independent sewer line from premises No. 67D ''to Jatindra Mohan Avenue can be laid without connecting the same with the sewer ditch. The total required length of the drain would be 114 ft. The distance of the lamp hole is about 41 ft. from premises No. 67D. The plinth level is 3 ft. according to Mr. Ghosh and Mr. Das. The courtyard level is 10" below the plinth level. The courtyard is 1 ft. 6" from the level of the sewer line at Jatindra Mohan Avenue. The depth of the lamp hole at Jatindra Mohan Avenue is 5 ft. Therefore, the required slope for a distance of 114 ft. is available. It is true that the drain has to be taken to the plinth of the three-storied structure. It is not, however, I difficult to bore a hole and lay a pipe. It is again true that the boundary wall has to be broken between the premises No. 67D and the sewer ditch. That again is not a practical difficulty. Hence, in my opinion, this new line can be laid. It was suggested on behalf of the Respondents that the Corporation will not allow to draw such a new sewer line. It is not a matter just beyond the competence of the Corporation. See Sections 309, 310 and schedule 15 of the Calcutta Municipal Act. This can be done by the Corporation of Calcutta. There was no attempt on the part of the Plaintiff to get such consent and there has been no refusal.

Mr. Dutt, learned Advocate for the Defendant, however; severely criticised these methods. He firstly submitted that this method cannot be taken into account for it was not shown originally in the sketch plan. He secondly submitted that a new line to a distance 41 ft. is not permissible. Mr. Das has said so. It is not permissible because there is an existing sewer. There is again no evidence to show that there is sufficient space to lay new line along with the existing sewer line. An opening into the plinth of the three-storied structure would endanger the structure. This alternative suggestion was made in the evidence of Mr. Chatterjee which shows that he, was aware of the difficulties inherent in this method. Section 309 is an enabling section. One cannot do it. On the whole, in my opinion, it cannot be said that no alternative method of connecting the sewer line from premises 67D is possible, though alternative ways would entail reversal of the slope laying down of new drain, excavations of new areas for laying of new drains'' and in case of first method suggested laying of the existing pipe lines electric cable, telephone lines and the opening will have to be adjusted and relaid with the consent of the parties concerned.

The legal and engineering difficulties for carrying the sewer lines through alternative routes are not insurmountable. It any event, the Defendants have not placed any materials to induce me to hold that engineering and legal difficulties are insurmountable.

It may be noted here that the question of costs for these alternative routes was not gone into in detail in the evidence before me. Mr. Chatterjee suggested that in one case the cost would be Rs. 2,000. Be that as it may, it is clear that the costs of relaying the sewer lines would not be prohibitive.

In the result, it is clear that it is possible to carry the sewer lines or drains of premises No. 67D through alternative routes without taking it through premises No. 67E at present.

It is equally clear that it would be more convenient to the owners of premises No. 67D if the existing sewer lines and water lines are not disconnected and are continued as at present.

Mr. Dutt firstly submitted that the right to use the sewer lines or pipes through the strip of land originally belonging to 67D, Beadon Street, Calcutta and sold to the trustees of 67E, Beadon Street, Calcutta, is an easement of necessity. Gale in his book on Easement, 13th ed. p. 98, has explained an easement of necessity with reference to ways of necessity as follows:

A way of necessity arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the parts so left inaccessible is entitled, as of necessity, to a way over the other part. The principle no doubt applies where both parts are disposed of simultaneously, either by grant inter vivos, or by will.

An easement of necessity was explained by Sterling J. in Union Lighterage Company Ltd. v. London Graving Dock Company Ltd. (1902) 2 Ch. 557, a case relating to right to support in these words:

An easement of necessity is one without which the property retained upon severance cannot be used at all, not one which is merely necessary to the reasonable enjoyment of that property.

This view of easement of necessity with reference to the access of light or right to light, to a pantry window was followed by Kekewich J. in Ray v. Hazeldine (1904) 2 Ch. 17.

Hence, in this view of the law, it cannot be said that the right to carry the sewer lines or drains through the strip of land sold to the trustees of premises No. 67E now after the purchase in 1932 is an easement of necessity and consequently the contention advanced on behalf of the Defendants must be rejected.

Mr. Dutt at a later stage alternatively submitted that the underlying principle of an easement of necessity must undergo a change in a crowded area in a city like Calcutta when impossibility of enjoyment of a right can be rendered by legal and engineering difficulties which can be reasonably equated to physical impossibility.

He developed an argument keeping in view this practical approach to the easement of necessity more or less in the manner indicated in the succeeding paragraphs.

In January, 1933, when the conveyance was executed or severance took place there was no other outlet or passage through which the sewer lines or drains of premises No. 67D, Beadon Street, could be carried. Hence, this raises a presumption that there was no available alternative route. This presumption requires rebuttal. The burden of rebuttal falls on the Plaintiff. The Plaintiffs had not rebutted it. On the other hand, it is patent from the evidence that no alternative and/or new connection can be given to premises No. 67D, Beadon Street, preserving or maintaining the existing drains for in any case the existing drains have to be abandoned and discarded and new drains have to be laid. The replacement of the old drains by new alternative drains cannot be laid without substantially affecting the existing buildings for it would be necessary to bore holes through the length of the building at 67E.

The easement of necessity had its birth in agricultural land.

The easement of necessity has the same concept whether it relates to agricultural land or residential areas in a crowded city.

There is no evidence as to what was the position in 1933 when the severance took place. There is no evidence to show what was the position of the covered sewer ditch to the north of 67D in 1933. There is no evidence as to whom 8/3, Jatindra Mohan Avenue belonged in 1933 and there is again no evidence to show whether the manhole on the municipal road existed in 1933 or not and again there is no evidence to show whether the gully pit existed as it does not in 1933. There is again no evidence to show whether premises Nos. 67A and 67B were there to the east of premises Nos. 67E and 67D and what is more there is no evidence to show whether the passage between 67E and 67D on the one side and premises Nos. 67A and 67 B on the other side carried the sewer lines, water lines, drains and pipes of premises Nos. 67A and 67B. Hence, in my opinion, the assumption made by Mr. Dutt cannot be sustained on the facts before me. So there is no ground for a presumption and consequently no room for rebuttal of the presumption. In fact the absence of evidence as to the position in 1933 practically takes away the bottom of this contention.

Hence, this contention advanced on behalf of the Defendants must be rejected both on law and facts.

Mr. Dutt in the further alternative submitted that, in any event, the right of continuing the sewer lines or pipes or drains through the said strip of land now forming a part of 67E, Beadon Street, was a quasi-easement.

In England there is a well-established doctrine that the grantor cannot derrogate from his grant. This is explained by Gale in his book at p. 34 in these words:

...can arise from the principle that if a grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit to be used for the particular purpose for the grant or demise was made. No one can derrogate from, that is, impede the purpose of, his grant.

Bowen L.J. in Bayley v. Great Western Railway (1884) 26 Ch.D. 434 (452) explained the same principle as follows:

The rule...is simply this, that on a severance of two properties, anything like a right of way, or any other easement which is used and which is reasonably necessary for his reasonable and comfortable use of the part granted, is intended to be granted too.- The principle is that the grantor is assumed to have intended that his grant shall be effectual.

Parker J. explained, again, the rule in Browne v. Flower (1911) 1 Ch. 219 (225) in this way:

Where the owner of land grants or demises part of it, retaining the remainder in his own hands, such a demise or grant will (unless there be something in the terms of the grant or demise or in the circumstances of the particular case rebutting the implication) impliedly confer on the grantee or lessee as appurtenant to the land granted or demised to him, easement over the land retained corresponding to the continuous or apparent quasi-easements enjoyed at the time of the grant or demise by the property granted or demised over the property retained.

This doctrine or rule has led to the concept of a quasi-easement.

A quasi-easement has been explained by Sterling J. in Union Lighterage Company Ltd. v. London Graving Dock Company Ltd. Supra in the following way:

Eastment...necessary to the reasonable enjoyment of the property conveyed....

This was followed by Kekewich J. in Ray v. Hazeldine Supra. Gale in his book on Easements, 13th ed. p. 75, explained quasi: easement with reference to a right of way in these words:

Whereas in the present case, two properties belonging to a single owner and about to be granted are separated by a common road or where a plainly visible road exists over the one for the apparent use of the other and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement, unless by the terms of the contract that right is excluded.

In Goldberg v. Edwards (1950) Ch. 247 the above formula was accepted by the Court of Appeal, subject to the possible addition of the words "or convenient" after the word "reasonable".

This principle has been applied by the English Courts without a break in favour of the grantees as against his grantors.

It was however urged strenuously that Nicholas v. Chamberlain (1606) 79 ER 105 and in particular Pyer v. Carter (1857) 156 E.R. 1472 lay down that the vendor is equally entitled to the benefit of an implied grant or rather reservation.

In Nicholas v. Chamberlain (1606) 79 E.R. 105, a person erected a house and built a conduit thereto in another part of his land and conveyed water by pipes to the house. He afterwards sold the house with the appurtenances, excepting the land, or sold the land to another reserving to himself the house, the conduit and pipes passed with the house, because it is necessary, et quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require. So it is, if a lessee for years of a house and land erects a conduit upon the land and after the term determines, the lessor occupies them together for a time and afterwards sells the house with the appurtenances to one and the land to another, the vendee shall have the conduit and pipes and liberty to amend them.

In Pyer v. Carter (1857) 156 E.R. 1472, "the Plaintiff''s and Defendant''s house joined each other". They had been formerly one house and were converted into two by the owner of the whole property. Subsequently the Defendant''s house was conveyed to him and after that the Plaintiff took a conveyance of his house. At the times of these conveyances, a drain ran under the Plaintiff''s house and thence under the Defendants and discharged itself into the common sewer. Water from the eaves of the Defendant''s house fell on the Plaintiff''s house and then ran into a drain on the Plaintiff''s premises and thence through the drain into common sewer. The Plaintiff''s house was drained through this drain.

In this case it was contended on the part of ''the Defendants that this pipe was not of necessity as the Plaintiff might have obtained another outlet for the drainage of his house at the expense of �6.

His Lordship Baron Watson, however, negatived that contention for according to him the word "necessity" is to be understood the "necessity at the time of the conveyance and as matters then stood without alteration" and whether or not at the time of ''the conveyance there was any other outlet for the drainage water and matters as they then stood, must be looked at for the necessity of the drainage.

In this case again it was urged there could not be any implied agreement unless the easement was apparent and continuous. This contention was also negatived on the ground that even if the Defendant was not aware of this drain at the time of the conveyance to him "he must have known or ought to have known that some drainage then existed and if he had enquired he would have known that some drainage then existed". Thereafter His Lordship observed:

I agree with the observation of Mr. Gale that by apparent signs must be understood not only those which must necessarily be seen but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject.

Held that the Plaintiff was by implied grant entitled ''to have the use of the drains as it was used at the time of the Defendant''s purchase of the house. It seems in accordance with reason where the owner of two or more adjoining house sells or conveys one of the houses to a purchaser that such house in his hands should be entitled to the benefit of all the drains from his house and subject to all the drains from his house and subject to all the drains then necessarily used for the enjoyment of the adjoining house and that without express reservation or grant inasmuch as he purchased the house as it is. If that were not so the inconvenience and nuisance in terms will be very great.

In Suffield v. Brown (1864) 33 L.J.Ch. Lord Westbury L.C. in the course of the judgment observed that Nicholas v. Chamberlain Supra does not support the decision of Pyer v. Carter Supra and further observed referring to Pyer v. Carter, "I cannot look upon the case as rightly decided and must wholly refuse to accept it as an authority." Lord Westbury L.C. held, inter alia, that

the doctrine that where an owner of two properties conveys one of them to a purchaser a reservation or regrant will be implied in favour of the owner of all those continuous and apparent quasi-easement which are necessary for the due enjoyment of the property retained

was considered not to be good law.

He further held that

if the owner of two adjoining tenants conveys ''one of them to a purchaser absolutely the tenement so sold is discharged from any quasi-servitudes to which it was subjected by the vendor during his ownership of both properties and the purchaser is not bound to take notice of the manner in which the tenement purchased has been used for the convenience of the adjoining and unsold tenement.

In Crossley and Sons Ltd. v. Lightowler (1867) L.R. 2 Ch. 478 Lord Chelmsford, L.C. observed as follows:

Lord Westbury, L.C. however, in the case of Suffield v. Brown Supra refused to accept the case of Pyer v. Carter Supra and as an authority, said It seems to be more reasonable and just to hold that if the grantor intends to reserve any right over the property granted it is his duty to reserve it expressly in the grant rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties) by the fiction of an implied reservation. I entirely agree with this view. It appears to me to be an immaterial circumstance that easement should be apparent and continuous, for non constat that the grantor does not intend to relinquish it unless he shews the contrary by expressly reserving it. The argument of the Defendants would make in every case of this kind an implied reservation by law and yet the law will not reserve anything out of a grant in favour of a grantor except in cases of necessity.

In Wheeldon v. Burrows (1879) 12 Ch.D. 31 Lord Justice Thesiger in course of his judgment suggested that Pyer v. Carter Supra may be supported on the ground that in the special circumstances of Pyer v. Carter Supra easement can be implied. Lord Justice James in the same case supported Nicholas v. Chamberlain Supra on the basis that it really proceeded on the ground that it was an incorporeal easement, but that the whole of the conduit ''through which the water ran was corporeal part of the house, just as in old city there are cellars projectings under other houses. They thought it was not merely the right to the passage of the water but that the conduit itself passed as part of the house just like a flue passing through another man''s house.

Lord Justice Thesiger summarised after reviewing a large number of case law on the subject on the point as follows:

We have had a considerable number of cases cited to us and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case.

He later on indicated that one other exception may be based on reciprocal easement.

These propositions were followed in Union Lighterage Company Ltd. v. London Graving Dock Company Ltd. Supra. In Ray v. Hazeldine Supra, Berry v. Sanders (1919) 1 K.B. 223, Albridge v. Wright (1929) 2 K.B. 117 where Lord Justice Greer indicated other exceptions besides those mentioned in Wheeldon v. Burrows Supra and in Re : Webb. Sandom v. Webb (1951) 2 A.E.R. 131 where Lord Justice Jenkins indicated that the two well-established exceptions relating to easement of necessity and mutual easement such as right of support between adjoining building are not exhaustive. Hence, in view of these decisions, the Defendants'' case of quasi-easement, based on implied reservation cannot be accepted.

It may be said that the law in the State of West Bengal is not the same as in England. It is clear that Easement Act does not apply to West Bengal. It has been held in the case of Sital Chandra Chowdhury v. Mrs. A.J. Delanney (1916) 20 C.W.N. 1158 and in the case of Tustee Mondal v. Kenaram Mondal (1921) 34 C.L.J. 518 that English cases are to be applied as a matter of justice equity and good conscience. In the case of Tustee Mondal v. Kenaram Mondal, Mookerjee J. followed the rules laid down in Wheeldon v. Burrows Supra and suggested that Pyer v. Carter Supra which placed implied grant and implied reservation of apparent easement so correctly decided. This was followed in the case of Hari Lal Bandopadhyya and Another Vs. Gora Chand Mallick, .

It may again be noticed that the question of quasi-easement has to be considered or determined at the time when the severance took place. I need hardly repeat that there is practically no evidence of the position at this point of time. Assuming, however, that the conditions were the same as they-are now, it is clear that it would be more convenient to the owners of 67D to have the present right of carrying the sewer line or pipes through the same strip of land sold by the owners of 67D to 67E, Beadon Street, Calcutta. This, however, cannot be the foundation of an assertion of a right by the owners of 67D who has sold a part of 67D to the owners of 67E.

Mr. Dutt Learned Counsel thirdly submitted that a common intention can be inferred from the circumstances of this case.

It has been noticed that Lord Justice Thesiger in Wheeldon v. Burrows Supra, suggested that the exceptions as to "ways of necessity" and "mutual obligations" are the only two exceptions where even a grantor impliedly reserved a right. There may be other exceptions.

In the case of Aldridge v. Wright Supra, Lord Justice Greer classified five other exceptions from decided cases. Those exceptions were not relied upon and could not be relied upon before me. Hence, it is unnecessary to enumerate or deal with them except emphasizing that "there are other exceptions" as pointed out in Wheeldon v. Burrows Supra.

In Re Webb. Sandom y. Webb Supra, Lord Justice Jenkins, L.J. enumerated what according to him are the exceptions in these words:

Two well-established exceptions relate to easements of necessity and mutual easements such as rights of support between adjacent buildings. It is, however recognised in the authorities that these two specific exceptions do not exhaust the list which is, indeed, incapable of exhaustive statement as the circumstances of any particular case may be such as to raise a necessary inference that the common intention of the parties must have been to reserve some easement to the grantor or such as to preclude the grantee from denying the right consistently with good faith and there appears to be no doubt that where circumstances such as these are clearly established the Court will imply the appropriate reservation.

Therefore, it is clear that a common intention can be gathered from the circumstances of a particular case and may imply a reservation in favour of a grantor or the owner of the land or house retained. In this case reliance was placed on these facts to establish the common intention. Premises Nos. 67D and 67E and other contiguous areas belonging to the same person Anath Nath Deb or estate originally. After his death under a decree the said area was divided, inter alia, into 67D and 67E, Beadon Street, Calcutta. In 1929/30, a building which now stands on 67D was built and the drains and sewer lines which passed through the said strip of land were constructed and laid. Premises No. 67E was made a trust estate by the heirs and legal representatives of the said Anath Nath Deb the trustees of that trust were family members of Anath Nath Deb. In 1933, the then owners of 67D sold with the said strip of land to the trustees who also belonged to the same family of Anath Nath Deb. One of the trustees was Nirojendra Nath Deb. He was also one of the vendors. There was no objection to the user of ''this sewer lines or pipes or drains for about twenty years. There was no attempt on the part of the owners of premises No. 67D to make any alternative arrangement for about twenty years. The suit was filed when Mr. Suniti Nath Deb a person hostile to the Plaintiff became a trustee. There was no letter of demand before the filing of the suit. The suit was filed almost on the last date of the expiry of the period of limitation.

The vendor did not sell because they were not in need of money. They sold it at an under value of Rs. 10,000 with a view to enable the trustees to develop the trust estate. Nirojendra Nath Deb who was the prime mover in this negotiation for sale could not have sold, he being a co-owner of premises No. 67D, to deprive them, the vendors of their right to use the drains or pipes or sewer lines ''through the said strip of land.

In 1924, premises No. 67D comprising an area of 9 cottahs, 4 chattacks, 44 sq. ft. was valued at Rs. 40,500. On January 25, 1933, an area of 1 cottah, 6 chattacks, 15 sq. ft. out of the total area of 9 cottahs, 4 chattaks, 44 sq. ft. was sold for Rs. 10,000 to the trustees. Hence, in Rochdale Canal Company v. King (1851) 2 Sim (N.S.) 78 , Lord Cranworth said, inter alia, as follows:

Now I entirely assent to the argument...that mere acquiescence (if by acquiescence is to be understood only the abstaining from legal, proceedings) is unimportant. Where one party invades the right of another, that other does not, in general, deprive himself of the right of seeking redress merely because he remains passive.... But the evidence of long continued use of the water....

The fact of filing of the suit within the period of limitation militates against such a common intention. Nirojendra Nath Deb was a vendor as also a trustee. He could have easily expressly provided for such a reservation. Alakendra Nath Deb who was then aged 16 years could hardly throw any light in the matter. Sikharendra Nath Deb who was about 25 years at that time could have thrown some light. He has, however, not come in the box. Hence, in my opinion, the requisition on title and the statements in the conveyance strongly militated against such a common intention. It could be and can be rebutted only by stronger evidence consisting even of compelling circumstances. In this case, however, the circumstances are not so weighty as to induce me to hold that the strong presumption has been rebutted.

Mr. Dutt thereafter submitted that from the same facts and circumstances which are of a special nature an implied reservation can be made. Gale in his book illustrates this principle by citing Hall v. Lund (1863) 1 H.C. 676 Lyttleton Times Company Ltd. v. Warners Ltd. (1907) A.C. 476 (481), Jones v. Pritchard (1908) 1 Ch. 630 (638), Pwllback Colliery Company v. Woodman (1915) A.C. 634 (638 Keewatin Power Company v. Lake of the Woods Milling Company (1930) A.C. 640. Mr. Dutt relied particularly upon the cases of Pwllback Colliery Company v. Woodman (1915) A.C. 634 (638) and Re Webb Supra.

In my opinion, this submission is really the same submission as to common intention in different words. Hence, more or less the same facts were relied upon and in my opinion, for the same reasons this submission cannot be accepted.

Mr. Dutt further submitted that the facts and circumstances raise an inference of a verbal agreement. In this connection, he relied upon the case of Cory v. Davies (1923) 2 Ch. 95.

In this connection, Mr. Dutt more or less relied upon the same facts and circumstances as in the case of common intention. In my opinion, for the same reason I am unable to accept the same. It may be noticed that this case of common intention or special circumstance differed, if at all, only in degree from a case where the inference of a verbal agreement is made. It seems to me that in the case of common intention, the intention is supposed to exist in the minds of the parties but in the case of an agreement inferred, it is supposed that common intention had been given expression by one party to the other. Be that as it may, in my opinion, for the same reasons this contention cannot be accepted.

Mr. Dutt further submitted that if in the facts and circumstances of the case it would be contrary to good faith to allow the Plaintiffs to deny the Tights claimed by the Defendant. In this connection, he relied upon the case of Russel v. Watts (1885) 10 A.C. 590 and the observation of Lord Jenkins in Re Webb Supra Mr. Dutt again relied upon more or less the same grounds as in the ease of the common intention. In my opinion, for the same reason this contention must be rejected.

It may be noticed that this theory of contrary to good faith is nothing but another expression of the rule of common intention. It is only couched in a different language.

Mr. Dutt further submitted that the drains running from the said land was a part and parcel of premises No. 67D, Beadon Street, Calcutta. In this connection he relied upon particularly the cases of Nicholas v. Chamberlain Supra, Pyer v. Carter Supra Wheeldon v. Burrows Supra Union Lighterage Company Ltd. v. London Graving Dock Company Ltd. Supra. In my opinion, whether the sewer lines, pipes or drains are part and parcel of the premises No. 67D, Beadon Street, Calcutta, even after the sale of that strip of land will depend on the construction of the said conveyance dated January 25, 1933 and/or the necessity of. the case. In my opinion, on a true construction of the said conveyance it cannot be said that it formed part and parcel of premises No. 67D, Beadon Street, even after the said sale of the said strip of land to the trustees. It cannot be again said that it is an absolute necessity for the enjoyment of the premises No. 67D, Beadon Street, Calcutta; retained by the Defendants.

Mr. Dutt further submitted that in view of the intention of our Legislature as embodied in Section 13(C), this artificial rule prevailing in England making this distinction between implied grant and implied reservation should not be followed. More so, when it is in consonance with Pyer v. Carter Supra.

Section 13(C) is as follows:

Where one person transfers or bequeaths immovable property to another,

* * *

* * *

(6) If an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement.

Therefore, the law as codified in the Easements Act makes a departure from the English law and it embodies the real decision in Pyer v. Carter Supra where no distinction was made between the implied reservation and implied grant.

In view of the fact that the Easements Act is not applicable and further in view of the fact that in areas where the Easements Act is not applicable, the rules of common law have been applied as a matter of justice, equity and good conscience, I am unable to accede to this contention.

Mr. P.K. Sen, Learned Counsel appearing for the Plaintiffs submitted that the conveyance dated January 25, 1933, made it abundantly clear that there was no room for express or implied reservation. In March 1932 requisitions for title were given and answered. One of the questions being Question No. 5 was as follows:

Are there any rights of way, light or water or other easements or right of support over out of or affecting any part of the property intended to be sold? If so, please state particulars.

The answer was as follows:

None to the knowledge of the vendors. The purchasers may satisfy themselves by inspection and independent enquiries.

In the conveyance dated January 25, 1933, the following statements appear:

And whereas the vendors and the confirmer agreed with the purchasers for the absolute sale to them of the portion of the said premises No. 67D, Beadon Street hereinafter fully set forth and described and the inheritance thereof in fee simple in possession or an estate equivalent thereto free from all encumbrances at or for the price of Rs. 10,000 (Rupees ten thousand) the said portion being contiguous to the said premises No. 67E, Beadon Street and hence required by the purchasers for the improvement and development of the said premises...the vendors do and each of them doth hereby-grant convey transfer and sell and the confirmer doth hereby release concur and confirm unto the purchasers all singular all that the messuage land hereditament and premises being a portion of the premises No. 67D, Beadon Street in the town of Calcutta fully described in the First Schedule hereunder written or howsoever otherwise the said misusage land hereditament and premises or any part thereof now are or is or heretofore were or was situated butted bounded called known numbered described or distinguished together with all houses out-houses huts and buildings of every kind yards ways paths common and other passages watercourses and all and all manner of former and other rights liberties privileges easements and profits whatsoever to the said messuage land hereditament and premises belonging or in any wise appertaining or usually held or enjoyed therewith or reputed to belong or to be appurtenant thereto and reversion and reversions remainder and remainders rents issues and profits thereof.

And all the estate right title interest claim and demand whatsoever both at law and in equity of the vendors and the confirmer into or upon the said messuage land hereditament and premises and every part thereof....

And that the purchasers shall and may at all times hereafter peaceably and quietly hold possess and enjoy the said messuage land hereditament and premises and each and every part thereof and receive the rents issues and profits thereof without any lawful eviction interruption claim or demand from or by the vendors or the confirmer or any person or persons lawfully or equitably claiming from under or in trust for them or any of them or from under or in trust for any of their predecessors in title and that freed and discharged from or otherwise by them the vendors and the confirmer and their respective heirs executors administrators and legal representatives indemnified against all such estates encumbrances claims or demands created made or occasioned-by the vendors or any of them or the confirmer or by any of their predecessors in title Or by any person or persons lawfully or equitably claiming from under or in trust for them or any of them.

The above statements in the Requisition of Title and the conveyance leave no room for any express reservation and in my opinion, strongly militate against any implied reservation.

In this connection Mr. Sen, Learned Counsel appearing for the trustees, relied on the case (1914) L.R. 41 I.A. 189 (Privy Council) . In that case

an executor who had a beneficial interest in the testator''s estate, joined with other beneficiaries in the sale and conveyance of a part of the estate to bona fide purchasers for value. The executor did not purport to convey it in his capacity as executor, but the deed stated that all the estate, right and title of the vendors were conveyed:

Held that the deed conveyed the whole title vested in the executor and that it was not proper to infer from the conduct of the parties and from indications in the deed that the intention was only to convey the beneficial interest since that inference was contrary to the terms of the conveyance.

In this conveyance also there was similar assertion which is compendiously known as the "all estate clause" and accordingly in my opinion having regard to the opinion of the Privy Council it should be held that no right, title and interest was left to the owners after the sale of that strip of land to the trustees in 1933.

An implied grant can be excluded by the term of the contract : Gale on Easements, 13th ed., p. 75, Goldbug v. Edwards Supra.

Therefore, in my opinion, an implied reservation may be excluded by the term of the contract.

Hence I Mold on a consideration of the above documentary evidence that there could not be and there is no implied reservation.

It may, however, be observed that in spite of these positive assertions in a conveyance there may be cases where common intention may be inferred according to the decisions which had been adverted earlier. It should be confined to absolute necessity and in such a case, in my opinion, the circumstances must be such as to overweigh the indications given in the conveyance.

Hence on this ground also, in my opinion, the Defendants Cannot succeed.

In the result the issues which were canvassed before me are answered as follows:

Issue No. 2 : No. There was no easement of necessity. It may have been necessary, for the beneficial enjoyment of premises No. 67D, Beadon Street, retained by the owners. In law, however, no effect can be given to it in view of the express provisions of the conveyance and further in view of an unbroken series of decisions.

Issue No. 3 : No. The conveyance was not affected with any implied reservation.

Issue No. 4 : This issue seems to be the same as Issue No. 2. In any event, my answer is in the negative.

Issue No. 5 : No.

Hence the Plaintiffs succeed in this suit. There will be a decree in terms of prayers (a), (b) and (e). In view of the fact that it will take some time to make alternative arrangements the prayer (b) will hot take effect immediately but will remain suspended for 18 months. The Plaintiffs will get the costs of this suit. Certified for two counsel.