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10. In these circumstances, it was clear that `B' schedule pathway was given to plaintiff as an easement of grant.

Defendants argued that no implied grant was pleaded in the plaint. However, it does not make a difference to the findings arrived at, as the plaintiff had pleaded easement of grant. The plaintiff's right to `B' schedule pathway does not affect the interest in the Ashramam property in any manner. Since this issue was found in favour of the plaintiff, the relief of declaration and injunction was granted as prayed for.

19. The very fact that the plaintiff was continuing to use the said pathway for access to `A' schedule property was an indication that there was implied grant of `B' schedule pathway of the plaint for access to the `A' schedule property even while `A' schedule property was separately allotted to him under settlement deed. Such implied grant is inferable also on account of the acquiescence of the defendants in the original plaintiff (since deceased) using `B' schedule as pathway till it was for the first time objected on 21st of July, 1982 as alleged by the original plaintiff (since deceased).

24.Feeling aggrieved by the concurrent orders of the Courts below, the defendants/Appellants have filed the present special leave petition, which, on grant of leave, was heard in the presence of the learned counsel of the parties.

25.We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the `B' Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in `A' Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to `A' Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of `B' schedule pathway for access to `A' schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the `B' schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to `B' schedule property of the plaint for its use as pathway to `A' schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the `A' schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the `B' Schedule property of the plaint. It is an admitted position that both `A' schedule and `B' schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have `B' schedule property of the plaint as a pathway could not have been taken away. In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed :

27.The learned counsel for the appellant raised an argument that since no case was made out by the plaintiffs/respondents in their plaint about the easementary right over the `B' Schedule Pathway by implied grant, no decree can be passed by the courts below basing their conclusion on implied grant. We have already noted the findings arrived at by the Trial Court, on consideration of pleadings and evidence on record on the right of easement over `B' Schedule pathway by implied grant. The Trial Court on consideration of the evidence of both the parties recorded the finding that there was no evidence on record to show that either Yogini Amma or the defendants themselves until 1982 had objected to the plaintiff's use of `B' schedule pathway to access `A' schedule property. The Trial Court on consideration of the plaintiff's evidence and when the defendant had failed to produce any evidence, had come to the conclusion that the plaintiff was given right of easement by Yogini Amma as an easement of grant. Considering this aspect of the matter, although there is no specific issue on the question of implied grant, but as the parties have understood their case and for the purpose of proving and contesting implied grant had adduced evidence, the Trial Court and the High Court had come to the conclusion that the plaintiff had acquired a right of easement in respect of `B' schedule pathway by way of implied grant. Such being the position, we are not in a position to upset the findings of fact arrived at by the Courts below, in exercise of our powers under Article 136 of the Constitution of India. We also agree with the finding of the Trial Court that from the evidence and pleadings of the parties `B' schedule pathway was given to the plaintiff/respondent as an easement of grant. It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.