This second appeal arises out of a dispute as to a right of way. The parties are the tenants of the same landlords, the Ujjir Babus, and the way claimed by the Plaintiff lies as to part of it between lands which they respectively occupy as lessees. The whole way takes the form of a right angle as in the following rough plan:—
In this plan the way claimed runs south from the point A to the point B and then turns east, terminating at the point C. The portions A B and B C have been separately considered in the Courts below. The land leased to the Plaintiff extends on the north-west to the southern part of A B. The Defendants are tenants of land to the south of B C and more recently land to the north of B C and east of A B was also leased to them. The way B C therefore runs between their older premises on the south and their newer premises on the north. Their premises on the south extend to the point C and the land between C and E is occupied by other tenants of the Ujjir Babus. The Defendants' land on the north extends to a point opposite the point D. The importance of this will appear later.
It is conceded that from the point. A access can be obtained by a road or path to a public highway on the west. It is further conceded that from the point C there is a way to a point E further east and that from the point E access can be obtained to a public highway on the south. The way C E is used by the Defendants and the tenants of the lands between D and E. The Plaintiff's contention is that the way C E is merely a continuation of the way A B C and that the Defendants are obstructing the way in order for their own convenience to join up their, land on the north with their land on the south. The Defendants' answer is that the Plaintiff is trying to force a way through land leased to and occupied by them. It is apparent that the real bone of contention is the portion B C.
Another point may be mentioned. The land in the angle A B E including the Defendants' land there, was reclaimed from a larger area known as Ujjir's tank. The reclamation was carried out by the landlords in or about the year 1904. The Defendants' lease is dated Sravan 1315 (1908) but they were in possession for a year or two before the lease was executed.
As to the pleadings, in the plaint the Plaintiff claimed the way by grant, by user as of right for more than twenty years, as a way of necessity, as a customary way and “under a general right of way of all sorts of user.” The Defendants, apart from formal pleas with which we are not now concerned, denied the existence of any way and asserted that A B and B C were included in the reclaimed land leased to them by the landlords.
Both the Courts below agreed in thinking that the Plaintiff had failed to establish any right based on immemorial user or the Limitation Act or necessity or custom. That conclusion is not open to review by us as it depends on the facts found and not upon considerations of law, and in saying that we do not suggest that any other conclusion was possible in the circumstances. So far, therefore, as the claim is founded on these grounds the Plaintiff fails. The trial Court, however, found that she had a right by grant from the landlords to the way A B while the lower appellate Court found that she had a right by grant not only to the way A B but also to the way B C.
The difference of opinion between the two Courts in regard to the way B C arose chiefly out of the different views which they took as to the precise boundaries of the reclaimed land leased to the Defendants. Both Courts held that the alleged way A B was excluded from the area leased and this finding is not now disputed. As to the alleged way B C the first Court held that the lease included this land while the lower Appellate Court came to the conclusion that this land was also excluded. The question turns on the description of the southern boundary of the land in the schedule of the lease. The description runs “Pathway on the old south bank of Ujjir Dighi and Sital Choudhury's (i.e, the Defendant's) old basha.” The learned Subordinate Judge in the lower Appellate Court considered this description in the light of the evidence on the record and found that the pathway mentioned extended not only from the point D to the point C but also from the point C to the point B. Before us an attempt was made to argue the question whether the Subordinate Judge was right or not as a question of pure law relating to the construction of a document. It was said that the description was satisfied by confining the reference to a pathway to the admitted pathway C D and the remainder of the description to the Defendants' old premises. That may be so. But the description is also capable of the meaning which the Subordinate Judge put upon it and the question is not a mere question of grammar or law. Evidence is always admissible to show how the language of a document is related to existing facts or to facts which existed when the document was written. In construing the words used the extent of the pathway is a factor which cannot be neglected or left out of account. The Subordinate Judge was entitled therefore to consider the evidence on the point and it cannot be said that the construction adopted by him according to which the whole way claimed is outside the area leased to the Defendants, is bad in law.
But so to construe the lease is not sufficient to dispose of the case. The fact that the land was not leased to the Defendants does not prove that the Plaintiff has a right of way over it, though the fact that the land was used or described as a way at the time of the lease may be of some assistance to her.
That brings us to a question which was raised for the first time in this Court. As things stand, at any rate, the Plaintiff is not in any sense in possession of the right of way. In order to succeed she must prove her title to it. The other grounds on which she put her case being found to be untenable, the title on which she relies is a grant from the landlords. She must therefore prove a right by way of grant which she would be in a position to assert as against the latter. It is not sufficient for her to show that she used the way by the leave and license of the landlords. That is not her case and it is at the least extremely doubtful whether the mere leave and license of the landlords would invest her with anything in the nature of a right which she could enforce by suit. She might have good reason for complaining to the landlords without herself having any further or legal remedies. It would then be for the landlords to take such legal action as they might think fit.
The Plaintiff then has to prove a grant. In finding a grant of a part or the whole of the way the Courts below have depended entirely on parol evidence. The alleged grant is not supported by any document on which the Plaintiff can rely as a title-deed. The Defendants' lease is plainly not such a document. The Courts below inferred the grant from the facts and circumstances of the case, including the terms of the Defendants' lease. The question is whether they were at liberty to do so or whether in the absence of a written and registered document creating a right of way in the Plaintiff's favour, the suit must fail. In other words, is the evidence legally sufficient for the purpose of proving a grant? The point is one open to the Defendants, the Appellants before us, in second appeal, though it was not taken below and we have to deal with it.
The argument was to the following effect. A right of way is immovable property and the grant of a right of way is a transaction governed by the Transfer of Property Act. The transaction in the present case must have been either a sale or a gift. If it was a sale, it was the sale of intangible immoveable property, or of an intangible thing, within the meaning and scope of sec. 54 of the Transfer of Property Act. If it was not a sale (as the Plaintiff has never suggested that any consideration moved from her) it was a gift of immoveable property within the meaning of sec. 123. In either case a written and registered instrument was necessary irrespective of the value of the right claimed. In reference to this argument what the Plaintiff founds upon seems to be a reservation of the way by the landlords for the use of the Plaintiff and other tenants whose premises abut upon it. The way being a private way and not a public or village way [Chuni Lal v. Ram Kishen(1)], the transaction by which it was created may perhaps be plausibly represented as possessing the elements of a gift, “Dedication” cannot be predicated of a private way. But before the argument is accepted a closer examination of it is necessary.
In England, no doubt, a right of way is said to lie in deed and not in livery. The reasoning seems to be that incorporeal or intangible rights require a deed to support them because it is difficult or impossible to deliver actual possession of such rights. The rule, that is to say, is one of evidence or archaic form rather than of substance or principle. What there may be of substance in it is illustrated by the commonly accepted view that sec. 9 of the Specific Relief Act does not extend to incorporeal rights because they are not rights of which “possession can be taken and delivered to a claimant” [sec. 5(a), Fadu Jhala v. Gour Mohan Jhala(2)]. However that may be, what has to be considered is the Indian Law and not the English Law. Before the Transfer of Property Act was passed no writing was necessary for the creation or grant of a right of way and it is not suggested that if a writing is not required by the Transfer of Property Act, there is anything else in Indian Law which requires a writing. The question therefore is how the Transfer of Property Act deals with the matter.
As to the term “immoveable property,” the definition in the General Clauses Act of 1897, which is identical with the definition in the earlier Act of 1868, may be wide enough to include a right of way. But the case just cited shows that such a right is not always or necessarily included. The term is not defined in the Specific Relief Act (1877) and the definition in the General Clauses Act was therefore primâ facie applicable to the words as they are used in sec. 9 of that Act. It was held, nevertheless, that the context was sufficient to take rights classified as incorporeal rights out of the operation of that section.
In the interpretation section of the Transfer of Property Act, sec. 3, all that is said is that “immoveable property” does not include “standing timber, growing crops or grass.” That proposition is consistent with the term being used so as to include other things included by the General Clauses Act. It does not exclude, at any rate, it does not expressly exclude, rights of way. Assuming that rights of way are included, the argument for the Defendants proceeds on the lines indicated.
The learned Pleader for the Plaintiff on the other hand referred to the case of Bhagwan v. Narsingh and laid stress on cl. (c) of sec. 6 of the Transfer of Property Act. The clause lays down that “an easement cannot be transferred apart from the dominant heritage.” It is said that the clause shows that an easement does not come within the scope of the Act until it is created and that the Act does not regard the creation of an easement as a transfer of property.
Now, no doubt, the right claimed by the Plaintiff is a right in the nature of an easement. It is true that the right is claimed over other land of the landlords and it may be that such a right cannot be acquired by prescription under sec. 26 of the Limitation Act [Madam Mohan v. Sashi Bhusan]. It can however be created by grant.
But has cl. (c) of sec. 6 the effect contended for? Does it do more than express the rule that there cannot be an easement in gross? The right which the landlord assigns is not in his hands an easement because he cannot have an easement over his own property. The right becomes an easement in the hands of the grantee and the clause merely says that the grantee cannot transfer his easement apart from the dominant heritage to which by the nature of the right it is attached. There still remains the question whether the act of the landlord in creating the easement is governed by the Act.
It is perhaps unnecessary to consider whether a right of way is included in the words “in the case of a reversion or other intangible thing” in sec. 54 of the Act, because on the materials on the record it would be impossible to say that the transaction amounted to a sale. The real question is whether the transaction amounted to “a gift of immoveable property” within the meaning of sec. 123 of the Act. What we are about to say, however, is as applicable to sec. 54 as to sec. 123.
In our opinion the provisions of the Transfer of Property Act have no application to the creation of easements for the simple reason that the Act was not intended to deal with that topic.
In the first place the preamble of the Act, which was passed as Act IV of 1882, shows that the Act, was not intended to be exhaustive. Its object was “to define and amend certain parts of the law relating to the transfer of property by act of parties.” No doubt the preamble does not control any plain enactment which follows it but it may be a most useful guide when a question of doubt arises upon construction of a particular provision and considerations relating to the scope of the Act are involved. Now, not only is the preamble of the Transfer of Property Act in the terms stated, but the next Act passed by the Indian Legislature Was the Indian Easements Act (Act V of 1882) which purports “to define and amend the law relating to easements and licenses” or in other words to be a complete and self-contained Code on those subjects. It is true that the Act was not applied to the whole of India. It originally extended to Madras, the Central Provinces and Coorg. It has since been applied to other Provinces but not to Bengal. The fact however that the Easements Act was not and is not universal in its operation does not affect the scope of the Transfer of Property Act. It still remains that the Supreme Legislature dealt with some parts of the law relating to the transfer of property in one Act, with easements in another Act and that there are Provinces in which both Acts are in force. In those Provinces to which the Easements Act was not applied, the Courts were left to follow the course which they had previously pursued of drawing upon English sources for their substantive law, on the principle that the English law on the subject is in accordance with justice, equity and good conscience. Where legislation has stepped in, it has done so by express enactment. In Bengal, for instance, there were, and still are, in force the provisions relating to the acquisition of easements by prescription in the Limitation Act, and stray legislative provisions regarding easements may also be found elsewhere as in sec. 6 of the Transfer of Property Act.
These observations on the scope of the Transfer of Property Act and the relation of that Act to the law of easements may be somewhat general but their bearing on the particular question we have to decide is apparent. That question is one of form only and as we have already indicated neither the English law nor the dictates of justice, equity and good conscience can be of any assistance. The answer-depends in this Province at any rate entirely on the provisions of the Transfer of Property Act and the effect of those provisions on the law as it previously stood, under which, it must be borne in mind, no writing was necessary for the creation or imposition of an easement. In our opinion, the course which legislation has taken, the existence of scattered provisions which directly and expressly refer to easements, the fact that the Transfer of Property Act was immediately followed by the Easements Act, all indicate that great caution should be used before applying, to easements general provisions such as those contained in secs. 54 and 123 of the Transfer of Property Act in which easements are not expressly referred to. There is the further consideration that if the Legislature ever contemplated making a writing necessary for the purpose of creating an easement, the natural place for such a provision would be in Chap. II of the Easements Act, which is headed “The Imposition, Acquisition and Transfer of Easements.” The Allahabad High Court however has pointed out in the case above referred to citing Dr. Whitley Stokes' Anglo-Indian Codes, Vol. I, p. 882, that the Easements Act does not require the imposition of an easement to be in writing. The language used in secs. 54 and 123 of the Transfer of Property Act is certainly-not such as to compel us to include, the creation or imposition of easements within their scope. On the contrary the language is scarcely adapted for that purpose. The conclusion at which we arrive (in agreement so far as sec. 54 is concerned with the conclusion reached by the learned Judges of the Allahabad High Court) is that those sections were not intended to change, and did not change, the pre-existing law regarding easements so as to require a writing for their creation or imposition where no writing was previously necessary. The Courts below therefore were at liberty to determine the question between the parties as a question of fact on the materials on the record.
It may be added that sec. 2(6) of the Registration Act which defines “immoveable property” for the purposes of that Act, expressly includes “rights to ways.” Where, therefore, a right of way is created in writing, the writing may require registration but not if the value of the right is less than one hundred rupees.
In the result the objections taken before us to the decision of the Court below all fail and the appeal must be dismissed with costs.
N.G
Appeal dismissed.