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10. In Sukhdei Bibi v. Kidarnath 9 Ind. Cas. 628 : 33 A. 467 : 8 A.L.J. 280 it was held that the easement of necessity was an easement without which a property cannot be used at all and not one merely necessary to the reasonable enjoyment of the property, A similar view was taken in Chunilal Mancharam v. Manishankar Atmaram 18 B. 616, as to the meaning of 'easement of necessity.' In that case the Easements Act was held not applicable as it was not extended to the Bombay Presidency till Act VIII of 1891 was passed.

26. In Sukhdei Bibi v. Kidarnath 9 Ind. Cas. 628 : 33 A. 467 : 8 A.L.J. 280 which was a decision after the Easements Act was made applicable to the United Provinces it was held that an easement of necessity was an easement without which a property cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property. This casa arose out of a partition of immoveable property and the question was as regards a passage in the property which fell to the share of the defendant. The learned Judges referred to the English cases as to what would be an easement of necessity. There was no suggestion in that case that where the Easements Act applies a right of way which is not an apparent and continuous easement will pass under Clause (f) of the Easements "Act in case of partition of properties but it is open to the remark that in this decision the applicability of Clause (f) has not been considered.

33. It is argued from these observations that if there was a formed and metalled way that would pass as an easement. We do not think that this case takes us any farther than Kadambini Debi v. Kali Kumar Haldar 26 C. 516 : 3 C.W.N. 409.

34. Reference has been made to Ranchordass Amtha Bhai v. Maneklal Gordhandass 17 B. 648. We may point out that this case was before the Easements Act was made applicable to the Bombay Presidency.

35. It is argued by the learned Advocate-General for the respondent that the distinction between apparent and continuous and non-apparent and discontinuous easements is one which is known to the English as well as the Indian Law, that in determining whether an easement would pass under the Easements Act as regards a right of way, the English Law before the passing of the Act was that in the case of a formed road it was treated as a continuous easement that the subsequent development of the English Law made it clear that an easement was held to exist when there was a formed road though it was not strictly a continuous easement and that in interpreting the Easements Act it would be relevant to refer to the English decisions on the subject and to apply those decisions to cases where such a right is claimed in India. It is pointed out that in the case of an easement of necessity it has been held that the law in India and England is the same and English decisions have been referred to.

57. Aldridge v. Wright (1929) 2 K.B. 117 : 98 L.J.K.B. 582 : 141 L.T. 352 affirmed Wheeldon v. Burrows (1879) 12 Ch. D. 41 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 and the exceptions in the case of a grantor are given by Gree, L.J., in his judgment.

58. This departure from the English Law, however, does not, in our opinion, lead to the conclusion that a departure should be made as regards apparent and continuous easements in dealing with Section 13 of the Easements Act.

59. So far as the case-law in England subsequent to the passing of the Easements Act is concerned, the trend of the authorities is to treat a formed and metalled road as a kind of apparent and continuous easement. We may refer to Brown v. Alabaster (1888) 37 Ch. D. 490 : 57 L.J. Ch. 255 : 58 L.T. 265 : 36 W.R. 155 Head v. Mearal (1912) 1 Ir. Rep. 262 : 12 Ir. L.R. 638 and Aldridge v. Wright (1929) 2 K.B. 117 : 98 L.J.K.B. 582 : 141 L.T. 352. But we are of opinion that having regard to the provisions of the Easements Act it is not open to us to follow the English decisions subsequent to the Easements Act and to hold that a formed and metalled pathway would be an apparent and continuous easement for the purpose of determining the rights of parties under Section 13, Clause (1) of the Easements Act.