Patna High Court
Rajpur Colliery Co. And Ors. vs Pursottam Gohil And Anr. on 19 December, 1958
Equivalent citations: AIR1959PAT463, AIR 1959 PATNA 463, ILR 38 PAT 443
JUDGMENT S.C. Prasad, J.
1. This is an appeal by defendants 1 to 4 against the Judgment of the Subordinate Judge of Dhanbad decreeing the suit filed by the plaintiff-respondent No. 1 for declaration or the right of way for vehicles, men and others in the shape of a road 1030 feet x 20 feet shown on the sketch map attached to the plaint between letters A and C and for a mandatory injunction compelling the defendants to provide a diversion indicated by letters B. C. D, from the road A to C, There was also an alternative relief for compensation estimated at Rs. 2000/-for the loss of the road A to C if the first relief was not available to the plaintiff. He also claimed Rs. 2000/- as damages for the loss already suffered by him by having been deprived of the use of the road A to C.
2. The facts for the purpose of this appeal briefly stated are as follows. Raja Durga Prasad Singh, herein-after referred to as the lessor, was the owner of a large area of coal bearing land. On 14-7-1908 the lessor granted a coal mining lease of 95 bignas of land to Hardayal Singh and other in village Bherakatta for 999 years. On 13-11-1912 these lessees granted a sub-lease to Sheikh Imam Ali and Ramnath Banerji. It was aliened by the plaintiff that these sub-lessees developed the collieries and carried on their business in the name and style of "North Jharia Colliery". The plot, which was the subject matter of this lease and sub-lease, was plot No. 23 of the above village.
The sub-lessees, Sheikh Imam Ali and Ramnath Banerji were alleged to have made residential quarters, office, bungalows and Dhowras (Blochi for labourers to live in) in the plot in or about the year 1913 and they and their successors, assignees and representatives were in possession thereof. In the month of August, 1934 the plot in question, namely, plot No. 23, together with, the colliery building etc. appertaining thereto were sold in auction sale in Execution case No. 520 of 1933 of a mortgage decree which had been obtained by the lessor for royalty due from the lessees, sublessees and their assignees and representatives, and was purchased by him. The lessor took delivery of possession of this property through court and a few months thereafter by a registered Indenture dated 26-2-1935, he granted a lease of the said coal land and collieries with surface and all other rights concerning or relating thereto together with all inclines, pits etc. to the plaintiff for a term of 999 years and since then the plaintiff claimed to have been in possession of coal land with all other rights by carrying on coal business therein in the name and style of "Khas Bhagatdih Colliery".
3. It may be mentioned that plot No. 24 adjoins plot No. 23 and this had been acquired by one Bhaban Jeba and others by a lease from the lessor in 1914 by a registered lease. This lease was transferred to the defendants-appellants in or about 1920, since when they have been in possession of that coal land and have been carrying' on business of coal and have set up a colliery in that plot named "Rajapur Colliery".
4. It was further alleged by the plaintiff that the lessees Sheikh Imam Ali and his cosharer, their successors, assignees and representatives, who successively owned the North Jharia Colliery, and, thereafter, the plaintiff, his employees, miners and customers, had been using to the knowledge of the zamindar and other persons concerned the disputed portion of plot No. 24 of Mauza Bhera-katta for going to and coming from the bungalows and the colliery on foot and by cars and motor cars and for transporting coal and colliery stores etc from and to the said colliery by means of carts and motor trucks.
The plaintiff claimed to have acquired a right of way as easement on account of the user openly and without interruption for the last 37 years till he was illegally and wrongfully obstructed by the defendants who had on 22-8-1941 illegally and wrongfully cut three ditches across the road in plot No. 24 in the portion between B and C as shown in the sketch map attached to the plaint and put up fencings therein, resulting in complete blockade of the road. It may be pointed out that the road in question A to G runs throughout its length in this plot No. 24.
It was further alleged by the plaintiff that the defendants had or have not only no right, title or interest to obstruct this right, but they were also prohibited under the terms of the lease of their coal land from blocking or closing any road existing or running over their demised land and were bound to maintain the same having no right to interfere therewith. When the plaintiff protested against the said wrongful acts of the defendants-appellants, there arose a likelihood of the breach of the peace with the result that the police intervened and a proceeding under Section 133 of the Code of Criminal Procedure was started by the Sub-divisional Officer of Dhanbad.
It was subsequently converted into a proceeding under Section 147 of the Code of Criminal Procedure, but during the pendency of that proceeding, the appellants illegally and wrongfully removed the underground coal pillars between points B and C marked in the map with the mala fide intention of causing' subsidence thereof. In consequence of this wrongful and illegal removal of the coal pillars without providing for adequate supports for the road, cracks appeared therein, and mat portion of the road became dangerous to traffic.
The plaintiff claimed right of way over the portion of the land of plot No. 24, as shown in the map filed with the plaint, namely, the portion between A and C, 1030 feet in length and 20 feet in breadth, on which the road existed and also a natural right of support adjacent and subjacent, lateral as well as vertical. The plaintiff also claimed this support as having been acquirred by long user alleging that the defendants-appellants had absolutely no right to obstruct or interfere with the said right, being also bound to maintain sufficient coal pillars for supporting the said road. The Magistrate dropped the proceeding, on 26-5-1930, under Section 147 of the Code of Criminal Procedure, having found that the road had become dangerous to traffic by reason of the removal of the support in the shape of coal pillars.
The plaintiff, therefore, filed this suit, and claimed that in law as well as in equity the defendants were bound to provide a road upon their property and this they could easily do without any inconvenience to them by allowing the plaintiff to pass over the land indicated in green in the map between points B and D, but the defendants, in spite of his repeated requests, did not allow the plaintiff to use that portion, though they themselves had been using that part of the said land between points B to D as a road of their colliery by joining the same with the road to Dobri Colliery of Keshavji Pitambar shown in the said plan as emerging from the road in question at point C. The plaintiff further alleged that when he found that he had no other way by which he could transport the coal and ration etc. from and to his colliery, and as all ingress and egress had been totally blocked, he approached the Bastacola Colliery Company Limited, another adjacent colliery, and with great difficulty persuaded them to grant to him temporary permission of approximately 300 feet of land for use as a road at the yearly rental 1959 Pat. D.F./30 of Rs. 600/-. This arrangement had been extend-ed up to September, 1951 on a receipt of a further sum of Rs. 600/- after which the plaintiffs colliery and coal business and ingress and egress thereto will be totally stopped. Upon these allegations the plaintiff sought for the reliefs already stated.
5. The defence raised by the defendants 1, 2, 3, 4 and 6 who filed a joint written statement, relevant for the purpose of this appeal, is that there was no road in plot No. 24 as alleged by the plaintiff. They denied that any road had been made by Sheikh Imam Ali in this plot. They further said that they had made a private road for the ingress and egress for their colliery staff and labourers and for the use of their colliery people and also for passing carts and cars for carrying colliery materials over their own land in plot No. 24 from C to F and then From F to E as shown in the map filed by the plaintiff with the plaint.
The further area from F to B and B to A was waste land covered with Bantulsi plants and till about 1945 or 1946, only a foot track, about 2 to 3 feet wide through the jungle, existed, and was being used by the miners and labourers of the defendant's colliery for going to their residences made by the defendants near point B, and that in or about February, 1947 there was a serious dacoity in the colliery of the plaintiff, thereafter the defendants, for their own safety as also for the safety of the neighbours and as a precautionary measure against any dacoity in future, cut and cleared the Bantulsi jungles on the area from F to A and in other parts of plot No. 24.
They went on to say in the written statement that after this, the plaintiffs father, late Jairam Narain, requested these defendants to allow him and their colliery men to pass over the land thus cleared from A to C to which the defendants agreed, out of neighbourly feelings. In or about 1948, they also allowed the plaintiff's father to transport coal from the colliery on trucks temporarily, so long as he had not been able to make up the matters with the Railways which had stopped, and closed their siding situated near the Dhanbad Pathardih main line. Thus according to the defendants, the plaintiff had never any occasion to use the alleged road for transporting coal and for the passing of trucks or cars or for any purpose whatsoever before that period. They denied the claim of the plaintiff that he had the right of easement in the shape of right of way over any portion of their plot No. 24.
As regards the cutting of the coal pillars they said that they had every right to do so, because the pillars were their own property and by cutting the coal pillars they had done nothing to affect any right of the plaintiff. The defendants also denied that the plaintiff was entitled to get any damages in any shape or form and for any reason whatsoever.
6. It appears from the judgment of the learned Subordinate Judge that before him the plaintiff claimed right of easement on several grounds, namely by prescription, by express grant, by implied grant and as easement of necessity.
7. In the appeal before us the learned Counsel for the plaintiff has also raised the question of the liability of the defendants to be bound by the obligation in the shape of covenants between their predecessors-in-interest Bhawan Jeba and the lessor as incorporated in the deed of lease granted to the lessee Bhaban Jeba by the lessor, in 1914.
8. The learned Subordinate Judge found that there was a motorable road between A and C as alleged by the plaintiff "from at least after 1913" and that this road was for going to the North Jharia Colliery from the District Board Road, via Pure Jharia Colliery and the Rajpur land through the points A and C all along since at least 1913. He also found that it was clear from the evidence, that the road between these two points was a well-formed road "or a made and defined road running in a particular direction." His further finding is that this road between points A and C has been used since the year 1913, if not earlier, for the passage of men, Tangas, Ekkas and cars and in subsequent years also for the transport of coal by the plaintiff.
9. The learned Subordinate Judge then proceeded to consider the different points relating to the right of the plaintiff to claim this road. He negatived the claim of the plaintiff based on prescription. Before us this finding has not been challenged. The learned Subordinate Judge also did not accept the claim of the plaintiff based on express grant. It has been contended before us that this finding of the learned Subordinate Judge was not correct and that the lease of 1935 (Ex. 4/c), granted to the plaintiff, operated as a clear transfer of the right of way in question to him by the lessor.
10. The learned Subordinate Judge has upheld the claim of the plaintiff based on implied grant, and has also upheld the claim of the plaintiff on the ground of necessity holding that the plaintiff's colliery was land-locked and surrounded on all sides by the land of the grantor and that there was no other way for his coming out except through the lands of his grantor. He negatived the claim of the plaintiff regarding the right of support to the road, and thought that, in the circumstances of the case, namely, that by asking the defendants to give support for the road in question, they will be deprived of a large amount of coal, which will have to be left in the shape of pillars for the support of the road, and therefore it was just and reasonable to ask the defendants to give the plaintiff an alternative route.
He has rejected the alternative route, as indicated by the plaintiff in the plaint, on the ground that this will involve keeping intact the road between points A and B, but as the defendants were working the mine in that direction, sooner or later, a subsidence was bound to occur there also. Accordingly the learned Subordinate Judge thought that the best and the most reasonable view in the present case would be to find out an alternative route over the lands of the defendants. He has recorded the fact that the plaintiff was agreeable to have such a road, but due to the attitude taken up by the defendants in this case, no agreed route could be settled.
Ultimately, the learned Subordinate Judge has directed that the defendants should give an alternative route to the plaintiff either through plot No. 120 (a plot on the western extremity of plot No. 24 touching plot No. 23/114 belonging to the plaintiff on its south) up to the present Pure Jharia Colliery Road by acquiring new lands also, if necessary, to let the road meet the Pure Jharia Road or by the construction of another road along the barriers of their colliery from the point A up to the south-eastern limit of plot 23/114 of the plaintiff, then passing westward along the barrier of their colliery up to the north-eastern limit of plot No. 120, from there turning towards south along the barrier up to the south-eastern end of plot No. 120 and from there taking an easterly turn along the barrier of the defendants colliery up to the point C. He further directed that either of the two alternative routes must be provided within the period of two months from the date of the decree,, failing which it was to be open to the plaintiff to construct a road along the barrier as directed above at his own cost to be recovered from the defendants through the court.
11. As regards the damages in the shape of Rs. 2000/- claimed by the plaintiff for the loss already suffered by him, his rinding was that there was no satisfactory evidence to show that the plaintiff had actually suffered this amount of loss. He has allowed him a decree for Rs. 1200/- on the basis that the plaintiff has had to pay this amount as rent to Bastacola Colliery for a temporary road.
12. Shri Lal Narain Singh, the learned Counsel for the defendants-appellants, has raised the following points before us:
(a) That the findings of facts of the learned Subordinate Judge about the existence of road were not according to the weight of the evidence.
(b) That the lease executed by the lessor in favour of the plaintiff in 1935 was not a valid one, having not been done in accordance with the provisions of Section 107 of the Transfer of Property Act and, therefore, the plaintiff could not maintain the claim made by him.
(c) That the finding of the learned Subordinate Judge that the plaintiff had acquired the right of way as an easement of necessity was not correct, because the evidence clearly showed that there was an alter-native route possible.
(d) That the learned Subordinate Judge had erroneously held that the plaintiff had acquired the right of way by implied grant, because a right of way was in law neither a continuous nor an apparent easement. Alternatively, he has urged that even if the right of way were held to be continuous and apparent, as there was no evidence to show that the lessor enjoyed it at the time of the lease of 1935, this doctrine could not be invoked in his favour. Mr. Lal Narain Singh went further and said that even if it were found that the lessor was enjoying this right of way at the time of the grant, it had further to be seen if the easement claimed was necessary for the reasonable enjoyment of the property or the plaintiff. He urged that there was nothing to show that this right was reasonably necessary for that purpose, and finally, that it was the right of the owner of the servient tenement to select the alternative route, and that in this case the defendants-appellants had offered an alternative route which had not been accepted by the lower court. Mr. Lal Narain Singh urged mat this alternative route should be accepted by us, if this Court was disposed to agree with the trial court on other points and uphold the decree passed in favour of the respondent by that court.
13. In reply, Mr. B. C. De, the learned Counsel for the plaintiff-respondent, urged that the doctrine of implied grant was applied not only to easement of necessity but to all easements, for instance, where there was the case of an easement necessary for the reasonable enjoyment of the dominant tenement. He controverted the argument of Mr. Lal Narain Singh that in the latter case the easement claimed must be apparent and continuous. Mr. B. C. De contended that all easements could originate in implied grants irrespective of their nature.
14. He urged that if at the date of the grant to the plaintiff a well formed road existed, it must be held to have passed to the plaintiff by implied grant, that is, by the transfer by lease in 1935. He relied upon the cases of Kay v. Oxley, (1875) 10 QB 360 , Barkshire v. Grubb (1881) 18 Ch. D. 616, Bavley v. Great Western Rly Co.. (1884) 26 Ch. D. 434 and Iswar Gopal Jew v. Globe Theatres Ltd., AIR 1947 Cal 200.
15. On the point of easement of necessity, he urged that an alternative route should have been alleged in the written statement in a complete form. This had not been done by the defendants, their only defence being that the plaintiff had never used the road in question and, therefore, he urged that the finding of the court below, which was based on evidence on this point, should be upheld.
16. Mr. B. C. De also contended that this was a case of express grant of the right in question. I shall indicate the way in which he developed this point when I deal with it later.
17. Mr. B. C. De raised some new points before us. In the lease (Exhibit 4/b) granted by the lessor in favour of the predecessor-in-interest of the defendants in 1914 there is a clause that the lessee shall never be competent to close the roads that are in use or may be constructed upon the lease-hold land, that he shall always keep the same intact and that he, the lessor, the tenants under him, the lessor's representatives, and the general public shall be entitled to pass through them or use them, as he, the lessor, and they liked.
An identical provision is also to be found in the lease granted to the plaintiff by the lessor in 1935, as well as in the lease granted by the lessor to the previous lessees, namely, Hardayal Singh and others, in 1908 (vide Exhibit 4). Upon the basis of this restrictive covenant, in the lease of the defendants Mr. B. C. De urged that the lessor, as well as his transferees including the plaintiff were entitled to enforce it against the defendants who must be taken to have had notice of it when they had taken the transfer of the lease from Bhawan Jeba.
18. Mr. B. C. De also contended alternatively that if it were taken that this was not a covenant annexed to the land so as to run with it, the plaintiff as lessee was entitled to take advantage of it and to enforce it against the defendants, even though he was not a party to 'the contract between the lessor and Bhawan Jeba, because this clause was for the benefit of the plaintiff, as one of the tenants of the lessor.
19. I would first take up the questions of facts. I think the learned Subordinate Judge's findings on this point cannot be displaced. After a careful consideration of the entire evidence on the record he has, in my opinion, correctly come to the conclusion that there was a road between A and C in a well formed state and open to all sorts of traffic. Mr. Lal Narain Singh contended that although the plaintiff examined eight witnesses, he did not choose to examine himself and avoided coming to Court.
But that, I think, cannot take away the value of the evidence of the witnesses actually examined by the plaintiff, if on consideration it is found that there is nothing to doubt their credibility as well as their competency to speak about the actual fact that the road in question had been made sometimes very soon after Imam Ali and others had taken the sub-lease of the plot of land, namely, plot No. 23, from the lessees Hardayal Singh and others. That the P.Ws. have deposed to this fact has been clearly shown by the learned Subordinate Judge in his judgment. I have perused the evidence of each and every witness of the plaintiff and I find that each one of them was competent to speak of this fact.
There does not appear to be any reason to hold that anyone of them had any particular reason to give false evidence in favour of the plaintiff and against the defendants in this case. P.W. 1 is a very respectable witness. He said that he had gone for the first time to the colliery by a car. His evidence was supported by Exhibit 1 which bore his signature. P.W. 3 had used this road for the first time in January, 1934 in a car. This was also supported by Exhibit 1, which he bad signed. Similarly, P.W. 5' stated that he had used this road for going to the plaintiff's colliery in or about 1950 in a Tanga.
He had also occasions to go there sometimes in taxi. These statements are again supported by the fact that he had been appointed a Beceiver of the Khas Bhagatdin Colliery, namely, the plaintiffs colliery. P.W. 4 proved that he has used this road for going to the plaintiff's colliery in 1918. According to him this road was also being used for the transport of coal in case of local sales. This P.W. 4 had worked in the plaintiff's colliery in question formerly known as "North Jharia Colliery" from 1910 to 1929 as manager thereof.
The witness was also the manager of the defendants' colliery in ithe years 1922 to 1923. Obviously this witness was a very competent-person and also quite reliable. P.W. 8, a coal merchant and a colliery proprietor, also proved that he had seen the user of the road since the year 1913. He found Ekkas and bullock carts passing along this road-The learned Subordinate Judge has also rightly pointed out that Exhibit 1, which was a record maintained in the Mines Department, also supported the case of the plaintiff and the evidence of the witnesses in respect of the existence of this road.
This document also bears the signatures of different persons, who had visited the colliery of the plaintiff and signed this document. The earliest one is of 1922. There is an entry in this document to the following effect :
"Motorable road to the colliery. Take off at Jharia Church".
20. It is true that there is also mention of a pathway only. P.W. 3 has. however, explained it. It appears from his evidence that the word "pathway" had not been scored through, by oversight. This witness was a retired Deputy Chief Inspector of Mines of India and had occasion to officiate as Chief Inspector of Mines, the highest post in the department under the Government of India. The learned Subordinate Judge has, therefore, rightly said that he saw no reason why he should not accept the evidence of this witness on this point. I agree with the learned Subordinate Judge that the evidence of P.W. 3 should be accepted and that it proved the case of the plaintiff regarding the existence of the road for the period alleged by the plaintiff and in respect of its nature also as a motorable road open to all sorts of traffic.
21. The defendants examined six witnesses in this case to prove that there was no road. D.W. 1 is a servant in the defendants' colliery. He was working as the manager of the defendants' colliery since January, 1950, and was, therefore, clearly not competent to speak on the point under consideration. D.Ws. 2 and 6 were the servants of Pure Jharia Colliery. The learned Subordinate Judge did not feel inclined to place any reliance on their evidence, because it has been established that the proprietor of the Pure Jharia Colliery was a friend of the defendants. D.W. 4 made a highly improbable statement that the officers of the Mining Department used to go to the defendants' colliery and walked to the plaintiffs colliery from the defendants' colliery leaving their cars near the office of the defendants' colliery.
The learned Subordinate Judge has, in my opinion, rightly rejected this evidence. D.W. 5 was defendant No. 6 himself and the only remaining D.W. is D.W. 3. His evidence has not been accepted by the learned Subordinate Judge. It also appears that he was a manager of the Pure Jharia Colliery and there are some contradictions between his evidence and the evidence of D.W. 4. According to this witness, D.W. 3, there was no road between points A and C between 1918 and 1932, but from the evidence of D.W. 4 it would appear that so long as he was the manager of the defendants' colliery between 1922 and 1927, a part of this road existed. In my opinion, the learned Subordinate Judge has rightly rejected the evidence of D.Ws. On the point under consideration.
22. It is true that Exhibits D. and E, the Survey Settlement plan and the Survey Settlement Parcha, respectively, do not indicate the existence of this road, but having regard to the observations made by Mr. B. K. Gowhale, I.C.S., Settlement Officer, in the final report of the Survey Settlement Operations in the district of Manbhum, quoted by he learned Subordinate Judge, it appears that the details of the different collieries had not been given and the khanapuri had already been finished and, therefore, the road in question had not possibly been shown in the survey papers.
Consequently this circumstance was rightly taken by the learned Subordinate Judge as showing nothing against the plaintiffs case. The learned Subordinate Judge was also in my opinion, right in rejecting the contention of the defendants that since the Pure Jharia Colliery road was constructed in 1919, it was not possible that the road in question could have been constructed before that date. The learned Subordinate Judge has pointed out that there were papers in connection with this matter, which were not produced and he was not prepared to rely upon the evidence of unimportant officers of that colliery.
On the contrary, he has referred to the statement of P. W. 4 that the Pure Jharia Colliery had not made a new road but had repaired only an existing road. As regards the nature of the road the learned Subordinate Judge has also considered the evidence carefully and has then come to the conclusion that the road in question was a well-formed one. The witnesses for the plaintiff proved that it was 10 feet wide. Some of them had said that it was 14 to 15 feet wide and still other said that it was 12 to 13 feet wide. It is true that P. W. 1 has stated in his evidence that the road in question was not a road in the sense in which it is generally taken and that the road was not a metalled one, but more or less a thing over which a cart can go.
These statements, however, only constitute the opinion of this witness. The other witnesses have differed when they said that there was a well-formed road, that is to say, a road in the real sense of the term. As to the fact that it was not a metalled road, that would not affect the conclusion drawn in this case, because a road to be a well-formed one, need not necessarily be a metalled one.
What is necessary is that there should not be a rambling right of way over the entire tenement. It is a definite tract marked out used for the purpose of traffic which is necessary for the purpose of making a road to be a well-formed one. I, therefore, agree with the learned Subordinate Judge's finding that there was a road between A and C of a well formed nature open to all sorts of traffic, having been in use for the period alleged by the plaintiff.
23. The next question of fact is whether the plaintiff has got any other way or this is the only way for ingress to and egress from the plaintiffs: colliery in plot No. 23. On this point I am not inclined to agree with the learned Subordinate Judge. In this connection jt is necessary to refer to some documents. It appears that in 1949 before this suit was filed this very plaintiff had filed a suit against the adjoining Bastacola Colliery. The plaint of that suit is Exhibit F and it appears clear from the statements made by the plaintiff in paragraphs 3 to 7 of this plaint read with the affidavit (Exhibit G) filed by him in support of his claim for temporary injunction against the defendants in that suit, namely, Bastacola Colliery that there was another road also connecting the colliery of the plaintiff with the Pure Jharia Road, which was connected with the Dhanbad Jharia District Board Road. A map was attached to this plaint (Exhibit F) and the existence of that road will appear from that map.
According to the allegation made in that plaint that road was a very old one. There is also the further allegation that Imam Ali had made a road starting from point 'Y' marked on cart road No. 2 (vide Exhibit F) (which would, on comparison with the map of the present plaint, Exhibit 2/b, seem to correspond to the Pure Jharia Road connecting the Pure Jharia Colliery with the District Board Road) going to a point indicated by letter Z on cart road No. 1 of the map (Exhibit F).
It was stated in the plaint of the previous suit (Exhibit F) that this katcha road had been construct-ed by Imam Ali for his own convenience and transport facilities and the cart road No. 1 shown in Exhibit F was the only means of egress and ingress and, therefore, he had constructed that katcha road and the plaintiff had been using that katcha road and the portion of cart road No. 1.
This alleged cart road No. 1 was a public road leading to the north-east from plot No. 23 passing underneath a bridge of the railway in the Dhanbad Jharia main line and according to the claim made by the plaintiff in the previous suit that was the only means of egress and ingress of Imam Ali from his colliery in plot No. 23 for going and coming from to the Pure Jharia road. It also appears from the plaint (Exhibit F) that this cart road No. 1 proceeding further in south-western direction entered Bastacola Colliery and then met the District Board road running from Dhanbad and Jharia.
The map (Exhibit F) shows the Colliery of the plaintiff, Khas Bhagatdih Colliery, adjoining this road, namely, cart road No. 1. It was alleged in this plaint (Exhibit F) that Bastacola Colliery had obstructed a portion of this road and the plaintiff wanted removal thereof. This suit was, however, compromised. The compromise decree is Exhibit 13. It appears from this decree that the plaintiff's claim of right of way through plots 14 and 16 over which the Bastacola Colliery had put the obstruction in cart road No. 1 of exhibit F was allowed to be dismissed, the plaintiff undertaking to pay rent for plying their trucks and machineries through that portion of Bastacola Colliery's land, namely, plots 14 and 16.
It is clear from these facts the plaintiff cannot claim the road in question in this present suit on the ground of easement of necessity, that is to say, that he had no other means of going out or coming to his plot 23 except by the road, namely, the road marked A to C as shown in the map attached to the plaint of the present suit. I do not find any force in the contention of Mr. B. C. De that an alternative route had not been clearly alleged in the written statement. That cannot affect the conclusion which follows the evidence on this point.
24. I would now take up the other points raised in this appeal before us. The main question is whether the plaintiff has got this right of way by implied grant. As to the question of implied grant, the contention of Mr. Lal Narain Singh was that as a right of way was, in law, a discontinuous and non-apparent one, it did not pass by implied grant to the plaintiff when the lessor leased the property to him in 1935. He relied upon the principle of Section 13 of the Easements Act which, he urged, should be applied, because though this Act was not in force in the State of Bihar, the principle of that Act had been accepted by the Court and had been applied in deciding cases of easement. He further urged that this principle was the rule of English Law also. He cited the case of Kartic Manjhi v. Banamali Mukerji, AIR 1930 Pat 7.
That, however, was a case in which the question of taking water from certain openings in an embankment was under consideration. In the present case, however, what has been found is that the road in question was a well-formed one. According to the authorities on the subject that would mean that it was continuous and apparent in the sense that there was permanency in the adaptation of the tenement, namely, plot No. 23 and that is sufficient in law to make it a continuous easement, continuity of enjoyment being not indispensably necessary for the purpose.
25. It is settled law in England that whenever a well-formed road or path-way exists over a portion of a land belonging to one person for the beneficial enjoyment of another portion of that land and such formed road or path-way is required for reasonable and convenient use of the other tenement for which purpose it had been made, on severance of the two portions of that land, a right to use such road or path-way shall pass by implied grant.
This is clear from the English cases relied upon by Mr. B. C. De. In the case of (1875) 10 QB 360, the facts were that A was the owner of a dwelling house called Rossville and there was an adjoining farm over which there was a private road leading to the dwelling house. That adjoining farm also, belonged to A. A subsequently sold the dwelling house to the plaintiff with rights of way, appurtenances and easements etc., it was held that the road passed to him by this grant. In the case of (1881) 18 Ch D 616, the facts were similar substantially.
It was held that the grant passed to the grantee a right of way over a clearly defined path constructed over the other tenement and at the date of the grant actually used for the purpose of the tenement which was granted, even though the path did not exist prior to the unity of possession. In the case of (1884) 26 Ch D 434, the grant was by a person who was the owner of both the dominant and ser-vient tenements.
There was a road on the latter which had been used by the owner for the former. It was held that the grant passed the road which the owner had made over one of these lands. This case also laid down that a right of way, though not an easement of necessity, hut necessary for reasonable enjoyment for the land granted, would pass by implied grant.
26. There are also other cases more directly in point. In the case of Ford v. Metropolitan Rly., (1886) 17 QBD 12, the plaintiffs, lessees of rooms situate in the back of a house, the usual but not the only mode of access being through a passage and a hall part of the front block a Railway Company having removed the front block and the hall, were held in damages for the loss of the easements. This fight was held to fall under that class of implied grants "where there is no necessity for the right claimed but where the tenement is so constructed as that parts of it involve a necessary dependence, in order to its enjoyment in the state it is in when devised, upon the" adjoining tenement."
27. This question came up for decision directly in the case of Brown v. Alabaster, (1887) 37 Ch D 490. The facts were that a lessee of two plots of land A and B had constructed the houses with gardens in plot No. B. The houses fronted one road and the gardens communicated with another road by garden gates and a back way formed over plot No. A. The backway was not the only access of the plot B but was the only convenient way for taking manure etc. into the gardens and was admittedly essential to the convenient enjoyment of the houses.
The houses on plot B were conveyed to the defendants with their rights, easements and appurtenances and later on plot A was conveyed to the plaintiff. It was held that the plaintiff was entitled by way of implied grant, to a right of way over the back road. Kay, J. observed:
"It seems to me that the law is this --that a particular formed way to an entrance to premises like these 'Westbourne' and 'Cottisbrook' which leads to gates in a wall, part of these demised premises, and without which those gates would be perfectly useless, may pass, although in some sense it is not an apparent and continuous easement; or rather, may pass--because, being a formed road, it is considered by the authorities, in cases like this, to be a continuous and apparent easement -- by implied grant without any large general words or indeed without any general words at all....."
28. Similarly, in Borman v. Griffith, (1930) 1 Ch 493, the plaintiff, under an agreement in writing for a lease exceeding the term of three years held a certain property known as "the Gardens" "with the paddock, orchard and adjoining gardens, situate in a large park. The defendant subsequently became lessee of the rest of the park, the mansion house, holding of the same landlord. There was a carriage drive from the public road passing "The Gardens" to the mansion house.
At the date of agreement, which did not reserve a right of way to the plaintiff, the landlord was constructing and subsequently completed an alternative but less convenient way from the public road to the Gardens. Nevertheless, the plaintiff continued to use the carriage drive and claimed that right of way Maugham, J. applied the principle laid down in the above case of (1887) 37 Ch D 490, and decreed the claim of the plaintiff observing :
"It is true the easement, or, rather, quasi-easement, is not continuous. But the authorities are sufficient to show that a grantor of property in circumstances where an obvious i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it."
Some of these cases, have been followed in India (see the cases of AIR 1947 Cal 200; Dakshina I Ranjan v. Surendra Lal, AIR 1936 Cal 310.)
29. In some cases the fact that the road had been of a permanent nature, which is the case here, was taken as sufficient by itself for raising a presumption that there was an implied grant of this right (see the case of Annapurna v. Santosh Kumar, AIR 1937 Cal 661 and that of Schwann v. Cotton, (1916) 2 Ch 459). If in addition there be the fact of the existence of the continuation of the 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 (the road in the servient tenement), being necessary for beneficial enjoyment of the latter i.e., the dominant tenement, becomes much stronger and leads almost irresistibly to the conclusion that the right had been granted impliedly, (1887) 37 Ch D 490; Head v. Meara, (1912) 1 IR 262; and Thomas v. Owen, (1887) 20 QBD 225.
30. Now, in the present case if' we refer to Exhibit 2/b, sketch map attached to the plaint of the plaintiff, it is clear that from office bungalow and other structures existing in plot No. 23 there is a road in plot No. 23 itself which joins the road in dispute, so that it is clear that the road (A-C) is in continuation of the road in the plaintiff's land. Under such circumstances the road AC will be taken not only as an apparent sign of user but one which clearly proved the fact that the road in question was necessary for the beneficial enjoyment of the land, namely, plot No. 23, and the buildings thereon belonging to the plaintiff.
31. I will at this place refer to some facts which make out a clear case of implied grant, in favour of the plaintiff. Long before the execution of the deed of lease dated the 26th February, 1935 the road in question between points A and C existed having been made for the beneficial enjoyment of the plot No. 23 and the structures thereon. As already mentioned there is a clause in the lease granted to the defendants' predecessor-in-interest in L914 that the lessee shall not be competent to close any road that was in use and that might be constructed on the land and that road will be open to user by the lessor and tenants under him.
The lessee took over himself the responsibility of keeping the road intact. It is clear from the evidence that this road between points A and C was being used for a long time by the North Jharia Colliery people for all sorts Of traffic and that imam Ali and others and their successors had been using this road for that purpose as owners of that colliery. When the lessor purchased the property in 1934 and came in possession thereof, the result was that the dominant tenement came directly into his hands.
He remained in possession for a few months only. There is no force in the argument of Mr. Lal Narain Sinha that the road in question was not being enjoyed at the time of the grant in 1935. Having regard to the facts and circumstances of the case the only reasonable inference can be that this right was being enjoyed at the time of that grant. Even if it be taken that the plaintiff had not succeeded in proving the actual user by the lessor of this right of way during the short period that lessor was in possession for a few months in 1934-1935, it did not matter because having regard to this short period, it would not mean discontinuance or want of the requisite enjoyment.
Having regard to the facts of this case, it is also clear beyond any doubt that the road in question was reasonably necessary for the beneficial enjoyment of plot No. 23 and the structures thereon at the time of the grant in 1935 of these properties to the plaintiff.
32. It has also been found that the plaintiff and his men had also used this road for the aforesaid purposes and had been so doing till 1949, when the defendants obstructed this road by digging trenches and putting obstructions. The further fact also cannot be lost sight of that when the defendants' predecessor-in-interest took the lease in 1914, this road in question had already come into existence and that each and every person connected with the tenements in plots Nos. 23 and 24, namely, the lessor, the two lessees and their predecessors-in-interest must have been conscious of the existence of this road and its use for all sorts of traffic by the persons in possession of the property, i.e., plot No. 23.
In this background if we look to the contents of the lease of 1935 (Exhibit 4/c) granted by the lessor to the plaintiff, it becomes clear to me that the plaintiff had acquired the right to use this road, by implied grant.
33. The important and significant recitals in this deed of lease (Exhibit, 4/c) are that the plaintiff had expressed the desire of taking settlement of plot No. 23, together with all appurtenances, machineries etc. that is to say, the entire property. The lessor had granted this prayer and accordingly this putta had come into being. I do not think any other reasonable inference can be drawn from these facts than that the plaintiff had been impliedly granted his right of way, namely, the right to use the road between the points A and C, (see Hans-ford v. Jago, (1921) 1 Ch 322).
34. Mr. Lal Narain Sinha also raised the point that since the lease of 1935 was not in accordance with Section 107 of the Transfer of Property Act because no counter part of the lease had been executed by the lessee, and the lessee had not also executed Exhibit 4/c, the putta, no title had passed to him and consequently there was no valid grant in favour of the plaintiff, and, therefore, he could not claim the right by implied or express grant.
This argument, however, does not cut much ice for the appellants, for even if it be taken that the lease was initially invalid for the reason stated above, the position here is that the plaintiff has remained in possession of the leasehold property from the date of the grant in 1935 all along till his right of way was interfered with in 19.49 and indeed is still in possession of that property. It was not disputed before us that the lessor has been always treating the plaintiff as his tenant in respect of the leasehold property, plot No. 23, and lias also been accepting the rent etc. payable under the lease by him under the putta (Exhibit 4/c). There is, therefore, no force in this contention of Mr. Lal Narain Sinha.
35. I am also disposed to uphold the alternative contention of Mr. B. C. De on the point of the acquisition of the right of way by the plaintiff by express grant. This point was taken up in the court below and was discussed before us elaborately. Mr. B. C. De's contention as I understood it was that even if it were taken that by the purchase of the dominant tenement by the lessor in 1934, no change had taken place so far as the servient tenement was concerned, only the right of reversion remaining with the lessor, and this was not sufficient to attract the principle of implied grant which came into play only when a person was the owner in possession of both the tenements-dominant as well as the servient, the plaintiff would still succeed on the principle of express grant. He developed this argument thus : --
If Imam Ali and his partner who held the dominant tenement, plot No. 23, and the buildings thereon, had already acquired this right of easement in law, the subsequent purchase of this plot by the lessor in 1934 with all the rights etc. appertaining thereto had the effect of transferring this easement to him, and when the lessor transferred the dominant tenement (plot No. 23) to the plaintiff in 1935, it must be held that this transfer conveyed as a matter of law (see Section 8 of the Transfer of Property Act and also the same principle embodied in Section 19, Indian Easements Act) this right of way to the plaintiff, it having been not necessary to mention it specifically in the deed of lease of the 26th February, 1935 in favour of the plaintiff. I think this contention is correct.
It is settled law that once an easement has become legally appurtenant to a dominant tenement, it will ipso facto pass on a conveyance of that dominant tenement, no express mention thereof in the deed of conveyance being necessary; See International Teas Stores Co. v. Hobbs, (1903) 2 Ch D 165; Vishun v. Rangi Ganesh, ILR 18 Bom 382. It was, however, contended that there was nothing to show that Imam Ali and others had acquired any such easement for plot No. 23 before it was purchased by the lessor in court sale in 1934.
36. Now, it is also well established that Section 26 of the Indian Limitation Act is not the only way of acquiring an easement, but that it can as well be acquired in other recognised ways, such as express grant, implied grant or lost grant, i.e. long user raising the presumption of the legal origin of the right; see the case of Rajroop Koer v. Abdool Hossain, ILR 6 Cal 394 (PC ).
In the present case, upon the facts found, there can be only one reasonable conclusion that Imam AH and others had acquired this easement by virtue of lost grant, from the persons who were in possession of the servient tenement, viz. plot No. 24, as lessees, the fact that they as well as Imam Ali and his partners along with their lessors, i.e., Hardayal Singh and others, lessees under the head-lessor, the Raja of Jharia, were tenants under the same landlord, being incapable of affecting this position in any way; see Augrahit Napit v. Nabna-tannessa Bibi, AIR 1919 Cal 122; Krishna Chandra v. Ram Sahay, AIR 1917 Pat 530; Sital Chandra v. Mrs. Alien J. Delanney, AIR 1917 Cal 681.
37. The rules of lost grant are :
(1) The user shown must be as of right, for a long period of years and of a continuous, open and peaceable nature.
(2) The servient owner is not permitted to offer evidence that such a grant has not been actually made.
(3) But he may show that throughout the period there has been no person capable of making the grant.
38. Now, the facts found in this case (I need not repeat them) clearly establish the case of lost grant of the right in question in favour of Imam Ali and partners. They used this road for the period of 21 years to the full knowledge of the defendants and their predecessors-in-interest as of right continuously openly and peaceably. The predecessors-in-interest of the defendants had agreed not to close any road already existing in plot No. 24.
The evidence establishes further that this road in the disputed land had already come into existence before plot No. 24 had been settled with Bha-wan Jeba in 1914. It is impossible in these circumstances to come to any conclusion but that the right of way in plot No. 24 had a legal origin in the shape of a lost grant by the lessees and their transferees of that plot. That being so, when the lessor purchased the dominant tenement, plot No. 23, in court sale, he acquired all the rights including this right of way.
And when he transferred this tenement plot No. 23 to the plaintiff in 1935, he got this right by this transfer per se under Section 8 of the Transfer of Property Act. It must also be pointed that in this case clearly the defendants or Bhawan Jeba, their predecessor-in-interest were capable of making the grant. The plaintiff must, therefore, succeed on this aspect of the case also.
39. Now, I come to the points raised by Mr. B. C. De in respect of the covenant, in the lease of 1914 between the lessor and Bhawan Jeba, pre-decessor-in-interest of the defendants, according to which Bhawan Jeba was not to close any road that was in use or that might be constructed on the land, namely, plot No. 24 and the lessor had also reserved to himself or to his tenants the right to use that road at their will. It may be mentioned that although these points had not been raised in the court below, no objection was taken by the learned Counsel for the appellants to these contentions of Mr. De before us and indeed elaborate arguments were addressed to us by the learned Counsel On their behalf. It seems, therefore, proper that these should be examined and decision given.
40. The argument of Mr. De was that assuming that none of the grounds put forward so far by him were available to him, he could still succeed on the ground that the plaintiff had for the more beneficial enjoyment of plot No. 23 a right to restrain the defendants from obstructing or closing the road in question. He quoted Section 40 of the Transfer of Property Act. He contended that the covenant in question had beer, annexed to plot No. 23 and therefore the plaintiff as transferee could avail himself of it and enforce it against the defendants.
41. Now the law in India on restrictive covenants is almost similar to that in England and closely follows it. The law on this point may be summarised as follows ;
A covenant is ordinarily personal only the actual parties to it being bound by it unless it fulfils certain conditions. If it does so, it assumes the character of an equitable encumbrance on the land so that its burden runs with the land in accordance with the general principles applicable to all equitable interests, that is, it will bind the land into whatsoever hands it may come, save only a transferee without notice of it. Those conditions, are as follows;
(1) The covenant must be negative in character.
(2) It must be for the benefit of another land of the covenantee in the vicinity or at least the cov-enantee must have some interest in such land. If, therefore, the covenantee possesses no land in proximity to the land affected by the covenant (see London County Council v. Alien, 1914-3 KB 642; Mati Lal Daga v. Iswar Radha Damodar Chandra Jew Thakur, AIR 1936 Cal 727) or has parted with all the interests in it or with all his property in the vicinity (Formby v. Barker, (1903) 2 Ch 539} it will remain only a covenant enforceable against the covenantor and not against his assignees.
(3) The covenant must touch and concern the dominant tenement. The covenant must actually be for the benefit of the land retained, i. e., the dominant tenement, (4) The benefit of such a covenant also runs with the land provided the person other than the covenantee seeking to enforce it must prove, in addition, anyone or more of the following facts:
(a) its effective annexation and concern with the land in question Rogers v. Hosegood, (1900) 2 Ch 388.
(b) express assignment to him of the benefit of the covenant as a part of the transfer In re, Rutherford's Conveyance, (1938) Ch 396; In re, Union of London and Smith's Bank Ltd.'s Conveyance, (1933) Ch 611.
42. What is essential for the effective annexation of a covenant to a land is the intention of the original parties to the covenant for discovering which, you have to look to the wordings of the covenant and the surrounding circumstances. If they show either that the covenant binds the land in its inception or if it affects the nature, quality or value of the land (see Dyson v. Forster, 1909 AC 98 and Jamini Bala Dasi v. Administrator General of W. Bengal, (1953) 1 Cal 34), it will go with the land to the transferee as being annexed to it.
43. In my view upon the facts proved in this case it can be reasonably and fairly concluded that the above principles cover the present case.
44. There was not much controversy before us On the point that the covenant was restrictive in character and that its burden ran with the land (plot No. 24) so as to bind the assignees i. e., the defendants, who, it was not disputed before us, must be taken to have purchased the leasehold with notice of it. The covenant is negative in character, it binds the land in its inception and the lessor has interest in plot No. 23 in the shape of right of reversion which is immovable property, it being immaterial that the lessor has the same interest in plot No. 24 and that the transfers in respect of these two plots 23 and 24 are leases and not out and out sales (see AIR 1936 Cal 727, the case upon which Mr. B. C. De has strongly relied).
It seems also clear, in my view, from the facts of this case that this covenant is calculated and intended to benefit the lessor's interest in the land. The fact that the leases of plot No. 23 or plot No. 24 are for 999 years, does not, I think, affect this position (see the above Calcutta case of AIR 1936 Cal 727).
This covenant also affects the nature, quality or value of plot No. 23. It affects its nature because without the road in question, plot No. 23, and the buildings on this plot which existed before Bhawan Jeba took the lease could not be reasonably used. It affects its value, because without it the price, it may fairly be inferred, would be much less than with it. A coal land without any convenient egress from and ingress to it is without doubt much less valuable than one with it.
It is clear to me that this covenant has been annexed to the land, plot No. 23, effectively in order that its benefit should run with it and, therefore, when the plaintiff took the lease, he acquired the right to enforce it against the defendants who have taken the land, plot No. 24, with notice of this covenant. I, therefore, uphold this argument of Mr. B. C. De also.
45. There was still another alternative argument of Mr. B. C. De that even if this covenant in the lease of 1914 were taken as merely a personal obligation and, therefore, covered by the second paragraph of Section 40 of the Transfer of Property Act, nevertheless the plaintiff was entitled to take advantage of it on the principle enunciated in the cases of Deb Narain v. Chunni Lal, ILR 41 Cal 137: (AIR 1914 Cal 129) and Dwarka Nath v. Priya Nath, AIR 1918 Cal 941.
In the present case having regard to the terms of the covenant in question, I do not think that this argument of Mr. B. C. De can stand the test of scrutiny. The only expression upon which he has relied upon is "the tenants under me". The terms are to the following effect; "I, the tenants under me, my representatives and the general public shall be entitled to pass through them or use them as I and they like."
46. The expression "the tenants under me", in my opinion, refers to the tenants already in existence at the time when this agreement was entered into between the lessor and Bhawan Jeba in 1914 and at that time the plaintiff was not a tenant under the lessor in any way. Hardayal Singh and others were the tenants then. The plaintiff has not derived any title from them.
He has derived it from the lessor himself. It is clear, therefore, that this covenant between the lessor and Bhawan Jeba in 1914 had not been entered into for the benefit of the plaintiff so as to enable him to claim it on the basis of the dictum that even in the absence of privity of contract, a person can take advantage of a term in it intended to benefit him. Moreover, the plaintiff also cannot legitimately claim to have stepped into the shoes of the lessor in respect of this covenant by virtue of the lease granted to him by the lessor in 1935 per Exhibit 4/c which as I said above contains nothing to evince any intention of the transfer of such a personal right arising out of this covenant in favour of the lessor as against Bhawan Jeba and his assignees.
I would not, therefore, accept this argument of the learned Counsel for the respondent, but he was certainly right when he argued on the basis of the covenant in question as being annexed to the land and the defendants being purchasers with notice of this covenant. In conclusion, therefore, I uphold the findings of the learned Subordinate Judge that the plaintiff-respondent was entitled to the right of way as claimed by him.
47. As to the point diversion it is clear that having regard to the fact that the road between points A and C of the sketch map of the plaint cannot be used on account of the fact that the coal pillars supporting it had been removed and, therefore, it had become entirely unsuitable for any sort of traffic. The diversion allowed by the learned Subordinate Judge seems to be quite reasonable in the circumstances of the case.
The facts stated by the learned Subordinate Judge in his judgment indicating the attitude of the defendants-appellants On this point have not been controverted before us. The learned Subordinate Judge has also given good reasons for not accepting the proposed diversion of the plaintiff stated in the plaint. In the circumstances of the case, after having given full consideration to the matter, I am satisfied that the diversion found out by the learned Subordinate Judge is the only reasonable one which could be allowed to the plaintiff. I see no reason to interfere with the directions given by the learned Subordinate Judge in this matter.
48. The result, therefore, is that the appeal is dismissed with costs throughout.
Ahmad, J.
49. I agree with my learned brother that the appeal should be dismissed with costs throughput, that the plaintiff-respondent is entitled to the right of way as claimed by him, and that in the circumstances of this case, the diversion allowed in the judgment under appeal is just and reasonable; but in view of the fact that even if the case of easement of necessity be disallowed as it has to be, this case can be disposed of on the footing of implied grant alone. As such I, think it is not necessary for me as at present advised to express my opinion on other points canvassed before us in sup port of the appeal.