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3. The dispute between the parties is as regards the right of way to the premises belonging to the plaintiff called "Rushkrum" from Mount Road, Madras, across the premises known as "Khaleel Mansions". Khaleel Mansions buildings abut the Mount Road. But the premises Rushkrum does not adjoin Mount Road but lies in the hinterland. On the west of the buildings a road called Woods 'Road runs North to South and on the East there is another road called Club House Road, also running North to South. That there is some access to the premises Rushkrum from both these roads is not in dispute. But the question is whether the owner of the said premises is entitled as of right to use the pathway ABCD from Mount Road and get access to his building. 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 XLIV of 1954.

5. Admittedly "Khaleel Mansions" which became evacuee property was sold by the Central Government in exercise of the powers conferred upon them by the Statute and the defendants became the purchasers of the property on 12th May, 1955. After purchasing the property they raised a wall X Y marked red in the plan and effectively blocked the passage from Mount Road leading up to the building Rushkrum. This was in denial of the plaintiff's right of access to Rushkrum from Mount Road.

6. The plaintiff claims that he has acquired a right of way through A B C D by prescription, or, in the alternative, by grant. We may at once, mention that there is no express grant in favour of the plaintiff from the original common owner Khaleel Shirazee, but, a right of an easement can be inferred from facts and circumstances, which would necessarily imply a grant. 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 plaintiffs' 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 acts would not be suggestive of an implied grant by Khaleel Shirazee the necessary ingredients for acquisition of 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.

House and ground No. 1/35-B and 1/35-A at Mount Road, Pudupakkam, Madras, within the Sub-Registration 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 35 and re-survey No; 314 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 some time between 1923 and 1925 and when Khaleel Shirazee made a gift of Rushkrum to the plaintiff knowing full well 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 confer any right on him. We are unable to agree with Mr. Gopalaswami Ayyangar'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 Go. v. Ross (1888) L.R. 38 Ch. D. 295 at 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.