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Shortly put, the case of the plaintiff is that he has got a right of easement, either acquired by prescription or by an implied grant, and that the defendants have no right to interfere with his enjoyment of that right. The defendants dispute this position and they contend that the plaintiff has no right of easement, and that, even if he has such a right, it has become extinguished by reason of the provisions of a Central enactment called the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954-

The plaintiff therefore submits that the acts and conduct of his father Khaleel Shirazee were such as to indisputably lead to the conclusion that he must have intended to confer a right of way through A B C D to gain access to Rushkrum, the property settled upon him. Of course, the plaintiff's case is that this passage has been used by the persons in occupation and management of the premises Rushkrum from time immemorial and that even if the facts would not be suggestive of an implied grant by Khaleel Shirazee, the necessary ingredients for acquisition of a prescriptive right are present. A volume of evidence has been let in on behalf of the plaintiff to prove that persons who were tenants in portions of the building Rushkrum and persons who had to go to that building every day by reason of their employment in the offices located therein used to get access to the building only through the gateway A B C D.

The property given to the plaintiff is described as follows:

"House and ground No. 1/35-B and 1/35-A at Mount "Road, Pudupakkam, Madras, within the subregistration district of Triplicane and registration district of Madras-Chingleput, bounded on the north by Woods road, south by Club House road, west by premises No. 1/35 and 1/.35-C, east by land of Mohamed Khaleel Shirazee, bearing old S. No. Part of 33 and re-survey No. 31:4, of the value of Rs. 92,000."

At the time of the settlement the property given to the plaintiff had the amenity of being reached from Mount Road. In fact Khaleel Mansions building itself came into existence only sometime between 1923 and 1925 and when Khaleel Shirazee made a gift of Rushkrum to the plaintiff knowing full will that the right of way to the building was from the Mount Road and executed the document without expressly stating that the old right of way should continue, it would not amount to the plaintiff (donee) being deprived of that right. It is significant to note that there is no alternative right of way mentioned in that document of gift. If nothing was said in the document it would rather mean that the donor, wanted the old state of affairs to continue and not that he was averse to conform any right on him. We are unable to agree with Mr. Gopalaswami Aiyangar's contention that because there are no express words in the document of gift in favour of the plaintiff it would be impossible for a Court to spell out an implied grant. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the .absence of an express grant would negative an implied grant is quite untenable.

16. As to the true meaning of an implied grant or an implied obligation arising out of a contract or conveyance the following observations of Cotton, L. J., in Birmingham Dudley and District Banking Co. v. Ross, (1888) 38 Ch D 295, 308 may be usefully quoted:

"By an implied obligation or an implied right I mean this: an obligation or right arising not from the express words of an instrument, nor from that which, having regard to the circumstances must be considered the true meaning and effect of the words of the instrument; but that obligation or that right which results from the position in which the parties have placed themselves by the contract ............ When the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results."