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Dakshtna Ranjan Choudhury v. Surendra Lal Das Gupta
Summary of Opinion — R.C. Mitter, J. (with Henderson, J.)
Factual and Procedural Background
This appeal was brought by the defendant against an order of the Additional Subordinate Judge of Chittagong dated 18 June 1934, which reversed the judgment and decree of the Munsif, First Court, Chittagong, and remanded the case to the trial court. The original dispute concerned a small north–south strip of land forming part of Dag 792.
Facts as stated in the opinion: Uma Charan Choudhury and others owned Dag 792 and on 27 April 1911 divided and sold it in three portions: the eastern portion to Tara Charan and Jogendra (from whom the plaintiff purchased), the middle portion to the defendant, and the western portion to Ishan. Each conveyance recorded a breadth of eighteen cubits and four fingers. The defendant built a house; immediately to the east of that house there is an admitted pucca drain belonging to the defendant. The dispute concerns a narrow strip immediately east of that drain.
The plaintiff sued for declaration of title to the strip, confirmation of possession, declaration that the defendant had no right of way over it, and a permanent injunction. The defendant pleaded that the strip belonged to his parcel, and alternatively claimed a right of way on three grounds: necessity, prescription, and implied grant. A Commissioner was appointed for local investigation and reported. The Munsif, on the Commissioner's findings, held that a 2′.10″ wide portion immediately east of the defendant's pucca drain belonged to the defendant and that the remainder belonged to the plaintiff; the Munsif also held that the defendant had established a right of way over the portion belonging to the plaintiff.
The plaintiff appealed the Munsif's decree. The defendant filed cross-objections arguing the whole disputed strip belonged to him. The Additional Subordinate Judge concluded that because both parties had attacked the Commissioner's report, a fresh local investigation should have been ordered; he remanded the case to the trial court to determine title on the evidence already on the record. The present appeal challenges aspects of that order and the holdings on easement claims.
Legal Issues Presented
- Whether the defendant has proprietary title to the disputed strip of land (i.e., whether the whole or any part of the strip belongs to the defendant).
- Whether the defendant has acquired a right of way (easement) over the disputed strip by prescription.
- Whether the defendant has a right of way by necessity.
- Whether the defendant has a right of way by implied grant (i.e., whether, on severance of the tenements, an easement passed by implication).
- Whether the remand to the trial court for further determination of title (including appointment of a new local commissioner) was appropriate in view of the parties' attacks on the Commissioner's report.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff contended that the Munsif's finding that any portion of the strip belonged to the defendant was wrong.
- The plaintiff also challenged the Munsif's finding that the defendant had a right of way over the portion of the land adjudged to the plaintiff.
Defendant's (Appellant's) Arguments
- The defendant contended that the entire disputed strip belonged to him in proprietary right.
- Alternatively, the defendant claimed a right of way on three bases: (a) way of necessity; (b) prescription; and (c) implied grant by the common vendors.
- One specific argument (advanced by Mr. Das for the defendant) was that the period of user after the institution of the suit could be added to earlier user for the purpose of acquiring prescriptive rights; the court rejected that contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| “96 IC 9131” (as cited in the subordinate judge’s judgment) | Invoked by the subordinate judge to support a broad proposition that the rule of implied grant does not apply in Bengal (as recorded in the subordinate judge's expressions). | The appellate court stated that if the subordinate judge intended to assert as a broad proposition that the rule of implied grant does not apply in Bengal, that assertion would be wrong. The appellate court therefore rejected the broad reading of that authority for the present case. |
| “8 Cal 9562” (as cited in the subordinate judge’s judgment) | Referred to by the subordinate judge in support of the same proposition regarding implied grant (the subordinate judge said it "is not good law" as referred to in the next citation). | The appellate court did not adopt the subordinate judge's view that this citation negates the rule of implied grant in Bengal; instead, the appellate court clarified the correct legal test for implied grants and applied it to the facts. |
| “8 CLJ 2893” (as cited in the subordinate judge’s judgment) | Referred to by the subordinate judge in the context of the subordinate judge's statement limiting the rule (the subordinate judge said the earlier citation was referred to in this source). | The appellate court observed that the subordinate judge's sentence was inartfully expressed and that any broad conclusion that implied grants never apply in Bengal would be wrong; the appellate court instead applied established principles regarding implied grants. |
| Gale on Easements, 11th Edn. (authoritative legal treatise) | Summarizes the rule that where, at the time of severance, a formed road exists over the servient tenement for the apparent use of the dominant tenement, such a formed road may pass by implied grant; contrasts situations where there is no formed or defined road and implied grant does not operate. | The court relied on the doctrine as summarized in Gale to explain that implied grants pass only where a formed road existed at severance; because the parties admitted there was no formed road in Dag 792 when it was undivided, the doctrine of implied grant did not apply to pass an easement to the defendant. |
Court's Reasoning and Analysis
The court considered each of the defendant's alternative grounds for claiming a right of way in turn — prescription, necessity, and implied grant — and addressed the procedural question concerning the remand.
Prescription
The court held that the relevant date for potential acquisition of prescriptive rights was the date of severance, 27 April 1911. Any user prior to severance was as owner and therefore could not support an easement acquired by prescription after severance. The suit was instituted nineteen years, eleven months and twenty-five days after the 1911 severance — short of the twenty years required for prescription. The court rejected the defendant's contention (advanced by Mr. Das) that the period of user after the institution of the suit could be added to prior use to complete the twenty-year period, because such subsequent user was disputed and not peaceable. Consequently, the claim based on prescription failed.
Necessity
The court accepted the Additional Subordinate Judge's finding that the strip was not absolutely necessary for enjoyment of the defendant's land, since the defendant had other ways to reach the tank. That factual finding disposed of the necessity claim; the defendant's counsel ultimately conceded inability to maintain the case on the basis of necessity.
Implied Grant
The court analyzed the doctrine of implied grant using the established principle (as summarized in Gale on Easements) that quasi-easements of an apparent and continuous nature pass by implied grant only where, at the time of severance, there is a formed road or other apparent sign of user. The court found: (a) the conveyance in favor of the defendant contained no express grant of a right of way; (b) the parties admitted there was no formed or defined road over Dag 792 when it was undivided; and (c) the defendant's pleadings effectively described the disputed strip as left as a common passage by agreement after partition, not as an existing formed roadway at severance. On those facts, the court concluded there was no scope to apply the doctrine of implied grant to pass a right of way to the defendant.
Remand and Commissioner's Report
The Additional Subordinate Judge had remanded the case to the trial court for appointment of a new Commissioner for local investigation and to determine title on the evidence already on record because both parties had attacked the original Commissioner's report. The appellate court did not overturn the remand in substance but clarified the scope: the remand order should cover only the question of title to the disputed strip of land; the appellate court affirmed the lower court's conclusions on the easement claims and limited the remand to the proprietary title issue.
Holding and Implications
Holding: The appeal is dismissed. The court affirmed the judgment of the subordinate court insofar as it negatived the defendant's claims to an easement; specifically, the defendant's claim to a right of way over the disputed strip (or any portion thereof) is negatived. The remand ordered by the Additional Subordinate Judge stands but is limited to the question of title to the disputed strip of land; it does not extend to the easement questions which have been resolved by this appellate court.
Implications / Consequences:
- The defendant's claim to an easement (by prescription, by necessity, or by implied grant) has been rejected by the court.
- The remand to the trial court is confined to determining proprietary title to the disputed strip; the appellate court's decision on easements is final in this appeal.
- Costs: the respondent (plaintiff) is entitled to the costs of this appeal; the hearing fee is assessed at two gold mohurs; further costs will await the result (i.e., they will abide the result of further proceedings on title).
- No order was necessary on the application referred to in the opinion.
- The opinion resolves the dispute between the parties in relation to easements but does not purport to lay down a novel or broad new precedent beyond applying established principles (the court explicitly rejected an overbroad statement that implied grants never apply in Bengal).
Disposition: Appeal dismissed.
Judges: R.C. Mitter, J. (author of the opinion) — Henderson, J. agreed. (Notations in the opinion: “K.S/R.K” and the concluding direction “10. Appeal dismissed.”)
R.C Mitter, J.:— This appeal is on behalf of the defendant, and is directed against an order of the Addl. Subordinate Judge of Chittagong, dated 18th June 1934, by which he reversed the judgment and decree of the Munsif, First Court, Chittagong, and remanded the case to the trial Court. The judgment is not very clear and the ordinary portion is ambiguous.
2. One Uma Charan Choudhury and others were the owners of a long strip of land which is described as Dag 792. He divided this Dag into three portions, the eastern portion, middle portion and the western portion. On 27th April 1911 he sold the eastern portion to Tara Charan and Jogendra. The plaintiff purchased it from Tara Charan and Jogendra. The middle portion was sold to the defendant and the western one to one Ishan. There are measurements given in all these three conveyances, it being stated that the breadth of each of these parcels of land is eighteen cubits and four fingers.
3. The defendant constructed his house and to the east of his house there is admittedly a, pucca drain belonging to the defendant. The disputed land is a small strip of land north to south in length to the immediate east of this drain. The plaintiff filed the suit on the allegation that this strip of land appertained to the land which was sold by Uma Charan and others to his vendors Tara Charan and Jogendra. He asked for a declaration of title to this piece of land, for confirmation of possession therein for a declaration that the defendant had no right of way over it, and for a permanent injunction restraining him from entering upon the land.
4. The defendant pleaded that the suit land appertained to the parcel of land which was sold to him by Uma Charan and others. He put forth an alternative plea that if the suit land or a portion of it did not belong to him, he got a right of way over it, and this right he claimed on three grounds. Firstly he says that it is a way of necessity, secondly he has acquired the right by prescription, and thirdly there was an implied grant to him by Uma Charan and others, the common vendors of himself and of the vendors of plaintiff. There was a Commissioner appointed for a local investigation by the Munsif and he submit feed a report. The learned Munsiff could not with all the findings of the Commissioner but found that the strip of land 2′. 10′ broad immediately to the east of defendant's pucca drain, belonged to defendant, and the rest of the suit land belonged to the plaintiff. On the alternative defence he found that the defendant had established a right of way over the portion of the suit land belonging to the plaintiff.
5. There was an appeal by the plaintiff. He contended that the finding of the learned Munsiff that a portion of the strip of land belonged to the defendant was wrong as also the finding of the learned Munsiff that the defendant had a sight of way over the rest of the land. The defendant filed cross, objections and contended that the learned Munsiff ought to have found that the whole of the disputed land belonged to him in proprietary right. The learned Subordinate Judge Was of opinion that as both the parties had attacked the Commissioner's report, the Court of first instance ought to have appointed another commissioner for local investigation. In this view of the matter he said that for the purposes of determining the proprietary right to the land in suit a new Commissioner, ought to be appointed. For this purpose he remanded the case to the trial Court and directed that Court to determine the Question of title on the evidence already on the record. With regard to the form of this remand order the appellant has raised no question nor has the respondent attacked the form of the remand order.
6. With regard to the claim of easement by the defendant, the Court of appeal below held that inasmuch as the suit was instituted nineteen years, eleven months and twenty five days from the date when Uma Charan and others sold their property to the defendant and the plaintiff's vendor, the claim of the defendant to an easement based on prescription could not be justified. We think that this view of the lower appellate Court is right. During the time of Uma Pharan and others, if any portion of Dag 792 was used by them for the purposes of going to the tank, that user was in their character as owners of the land. It is only on 27th April 1911, that Uma Charan and others divided the land into three parts. It is from this date, there could be scope for acquisition of a right of easement by prescription. Inasmuch as the suit was instituted before the defendant could use the strip of land as a pathway for a period of twenty years. We agree with the learned Additional Subordinate Judge in holding that the claim based on prescription could not be sustained, because the user of the defendant was not for the requisite period. We do not agree in the contention of Mr. Das that inasmuch as the defendant had in fact been using the pathway after the institution of the suit, his client is entitled to add the period of user after the institution of the suit, for the purpose of acquiring by prescription a right of easement. Such user was not peaceable but disputed after the institution of the suit. In this view of the matter, as we have already said, the claim of the defendant based on prescription, cannot stand.
7. The learned Additional Subordinate Judge has also found that there could not be any claim based on necessity. He pointed out that the disputed strip of land was not absolutely necessary for the enjoyment of the defendant's land, because he has got other ways to go to the tank. This finding at once demolishes the defendant's claim to the pathway as a way of necessity. Mr. Das in the end very fairly conceded that he could not place his case on the basis that the disputed strip of land is a way of necessity. There remains only the question as to whether the defendant can claim a right of way over the disputed strip of land on the basis of implied grant. In this respect the learned Subordinate Judge is not very happy in his expressions, for in one part of the judgment he makes the following observations:
In Bengal the rule of implied grant does not apply: 96 IC 9131; So 8 Cal 9562 is not good law, as it was referred to in 8 CLJ 2893, where there was no pucca metalled road.
8. If be meant to lay the proposition in the broad way that in Bengal the rule of implied grant does not apply certainly he is wrong. But the last portion of this involved sentence introduces a qualification by saying “where there is no metalled road.” Although we are of opinion that this sentence is not a very happy sentence, on the facts which are admitted, there cannot be any question, of there being an implied grant in favour of the defendant. The facts are these. Three conveyances were executed on the same day to three sets of persons whom we have already named. In the conveyance in favour of the defendant there was no grant of any right of way over any other land which was conveyed to the other sets of persons. From para. 8 of the written statement it is quite clear that there was no formed road during the time the whole dag belonged to Uma Charan and others. The defendant clearly states in that para that after his purchase of the middle portion and the purchase of Tara Frasanna and Jogendra of the eastern portion the disputed land was left as a common passage by agreement between them. The law on the subject is well settled. Where two tenements are severed, the grantee takes by an implied grant all quasi-easement of an apparent and continuous nature. A right of way is not classed generally amongst quasi-easements of an apparent and continuous character. It is only when there is a formed road that the quasi easement can be classed as one of an apparent and continuous nature. At p. 165 of “Gale on Easements,” 11th Edn., the law is summarized by the learned author, after an exhaustive examination of the leading cases in England on the subject thus:
Where two tenements are severed and at the time of severance a formed road exists over one (the quasi servient) tenement for the apparent use of the other (the quasi dominant) tenement, such formed road being necessary for the reasonable and convenient enjoyment of the quasi dominant tenement, a right to use such formed road will, it is submitted, pass by implied grant with the quasi dominant tenement, even where the only apparent sign, is the state of the road on the quasi servient, tenement itself and where the apparent sign, of user is a part, not of the tenement retained, but of the tenement conveyed, such as a substantial and permanent door-way or a formed road extending over both tenements, there is ample authority for saying that the doctrine of implied grant applies.
As regards the cases, however, where there is no formed or defined road over the quasi servient tenement so that the way is not evidenced by any apparent sign the rule in the older authorities was clear that upon severance there was no implied grant, in other words, that quasi easements not continuous and apparent in their: nature (like an ordinary right of way) did not pass on severance unless the owner used language to show that he intended to create the easement de novo.
9. We have already said that in the conveyance in favour of the defendant, there is nothing which would imply that an easement was intended to be created. The admission of the parties is that during the time of Uma Charan and others, there was no formed or defined road way in any portion of Dag 792. In this view of the matter we hold that there is no scope for the application of the doctrine of implied grant to the case before us, and on this ground we support the decree of the Court below by which the defendant's claim to easement has been negatived. The result is that the order of the Court below is affirmed, but as there is ambiguity in the order of the learned Subordinate Judge we think it right to summarize the result of the appeal. The result is that the claim of the defendant that he has got a right of easement over the disputed strip of land or any portion thereof is negatived, and the remand order of the learned Subordinate Judge would cover only the question of title to the disputed strip of land. The respondent is entitled to the costs of this appeal hearing fee is assessed at two gold mohurs. Further costs will abide the result. No order is necessary on the application.
Henderson, J.:— I agree.
K.S/R.K
10. Appeal dismissed.
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