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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 133 of 155)
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grant, and the grantor shall assign the way where he can best spare it. So,
too, if the close aliened be not entirely enclosed by my land, but partly by
the land of strangers for he cannot go over the land of strangers. Quoere.'
The chapter of Rolle in which these sections occur is headed : 'In what
case one thing shall pass by grant of another. Incidents.' And the
first pi. is : ' The grant of a thing passes everything included therein,
without which the thing granted could not be had.' PI. 16 is : 'If a
man grant. or reserve wood, that implies liberty to take and carry it away, 1
thus evidently treating it as a necessary implication of the intention
of the grantor, as in the case of all other incidents which the law attaches
to grants."

The illustrations (a) and (&) to s. .13 of Act No. V of 1882 are con-
sistent with the view of the law as to ways of necessity to be gathered from
the passages in Roll's Abridgment and Williams' Notes to Saunders'
Reports, which we have quoted above. It is [292] evident on the
facts found in this case that the way claimed here cannot be regarded in
law strictly as an easement of necessity for the sufficient reason that the
plaintiffs, although at very much greater expense, can procure from Captain
Lae's spring sufficient water for the use of the Charleville Hotel by
bhishtis passing to and fro over the '' zipzag " which is a public path. If
Act No, V 1882 applied to this case it .*ould be plain from an examina-
tion of s. 13 of that Act and the illustrations to s. 13 that no easement of
necessity over the defendant's land exists, so far as the plaintiffs are

As the Courts below, on the authority of Charu Surnokar v. Dokouri
Chunder Tkakoor (1), held that on the facts which they found the plain-
tiffs had proved an easement of necessity, it is necessary to consider
whether prior to 6fch of March 1891 there could have been in these
provinces as a necessary incident to a transfer a way of necessity other
than a way which would be strictly an easement of necessity under
circumstances similar to those mentioned in clauses (a), (c) and (e) of
s. 13 of Act No. V of 1882.

Act No. V of 1882 did not apply in the case of Charu Surnokar v.
Dokouri Chunder Thakoor (1). If the learned Judges in that case had con-
sidered that s. 13 of Act No. V of 1882 read with s. 5 of that Act correctly
embodied the principles of law which existed independently of that Act,
they could not have held that a way over the path and ghat in that case
might pass as an easement apparent and continuous and necessary for the
enjoyment of the defendant's tenement in the state in which it was at the
time of the severance. As their Lordships of the Privy Council held in
Maharani Rajroop Koer v. Syed Abdul Hossein (2), that Act No. IX of 1871
did dot exclude or interfere with titles and modes of acquiring easements
existing independently of that Act, it follows that Act No. XV of 1877


JUNE 27.


15 A. 270 =

(1893) 151,

(1) 8 C. 956.

(2) 7 I.A.240.


15 All. 293



1893 does nob exclude modes of acquiring easements existing independently of

JUNE 27. that Act, and we are consequently entitled to see whether on general

principles a way which [293] is not strictly an easement of necessity, but

APPEL- which was a made and visible path and was used at the time of the

LATE transfer, and was. and is, necessary to the enjoyment of the land or house

ClYIL. transferred in the state in which it was at the time of the severance, is

capable of passing as an incident to the transfer and can be inferred to

153*. 270= have passed in this case.

1 13 A.W.N. We have been able to obtain little assistance on this point from the

(1893) 181. decisions of the Courts in India. In Chant Surnokar v. Dokouri Chunder
Thakoor (1), it was apparently assumed by the Calcutta High Court that
such a way would pass as a quasi-easement of necessity. We know of
no other decision of a Court in India throwing any light on this particular
question. We shall now examine some of the cases decided in England
relating to the acquirement of easements of ways by implication or as
incidental on a grant. In referring to decided cases on this subject it is
necessary to bear in mind that there can be here no suggestion of a
lost grant, and as the plaintiffs have not put any title-deed in evid-
ence that those cases in which a grant of a right of way has been inferred
from the use of particular or general words in deeds of conveyance, or in
wills, can throw no light upon the legal questions to be decided in this case.

It is difficult to deduce any clear and uniform rule from the decisions
of the Courts in England on this particular question.

In Polden v. Bastard (2), in Ex. Oh., Erie, C.J., in 1865, said

" There is a distinction between easements, such as a right of way or
easements used from time bo time, and easements of necessity or con-
tinuous easements. The cases recognize this distinction, and it is clear
law that, upon a severance of tenements, easements used as of necessity
or in their nature continuous, will pass by implication of law without any
words of grant ; but with regard to easements which are used from time
to time only, they do not pass, unless the owner, by approoriato language,
shows an intention [294] that they should pass. This right to go to a
well and take water is not a continuous easement, nor is it an easement
of necessity." In the judgment of Erie, O.J., in Polden v. Bastard,
Pollock, C.B., Willes, Byles, and Keeting, JJ., Bramwall and Pigott,
B.B., concurred.

In Worthing ton v. Gimson (3), in which on a partition of two farms
which belonged to two persons as joint owners the question to be decided
was, whether bn the partition by conveyance of the farms to separate
owners in severalty there was an implied grant of the right to use a way
which had been regularly used for many years by the occupier of one of
the farms over the other. It did not appear whether there was a hard or
visible track. It was held there was no implied grant of a right to use
the way. In that case Crompton, J., in I860, after approving of the dis-
tinction drawn in Gale on Easements between apparent and continuous
easements on the one side and ways on the other, said (at page 626 of 2
E. and E) : " It is said that this way passed as being an apparent and
continuous easement. There may be a class of easements of that kind,
such as the use of drains or sewers, the right to which must pass, when
the property is severed, as part of the necessary enjoyment of the severed
property. But this way is not such an easement. It would be a dangerous

(1) 8 C. 956.

(3) 2 E. and E. 618 = 29 L.J.Q.B. 116.

(2) L,E. 1 Q.B. 156.



15 All. 296

innovation if the jury were allowed to be asked to say from the nature of
a road whether the parties intended the right of using it to pass."

On the other band, there are some cases from which it may be inferred
that a necessary implication of an intention to grant a right to use a way
arisas when parts of a building are so constructed for use that they cannot
conveniently and usually be used except by using a n*ay over other premises
which at the time of the grant belonged to the grantor and were then in his
possession or came into his possession before the grant was to take effect.
The case of Hinchliffe v. Earl of Kinoul (1), which was decided in 1838,
[295] was one in which Earl Grosvenor, in 1819, who was entitled, in
reversion expectant on a ground lease which would determine in 1824, to a
messuage and an adjoining passage, granted a lease of the messuage to
the plaintiff for a term to commence on the expiration of the ground lease.
In 1822 Earl Grosvenor granted a lease of the passage to Lord Hampden
for a term to commence on or about the expiration of the ground lease.
At the time when the lease of the messuage was granted to the plaintiff
in 1819 the messuage had a coal shoot opening into the passage. The
occupants of the messuage had long used the passage for the purpose of
filling the coal cellar. The jury found that the coal shoot was necessary
for the convenient and beneficial use and occupation of the messuage, and
that the coal shoot could not be used without parsing and repassing over
the passage. On that finding the Court of Common Pleas held that the
plaintiff was entitled by the legal operation of the lease to a right of way
over the passage for the purpose of using the coal shoot. Tindal, 0. J., in
his judgment in that case said : " Since therefore, as it appears to us, the
right in question passed to the lessees under the reversionary lease of 1819
as incidental to the enjoyment of that which was the clear and manifest
subject-matter of demise, it becomes unnecessary to consider the question
argued at the bar before us how far the same right might or might not
pass to the lessees under the express words used in the lease itself as ' an
appurtenant unto the said piece or parcel of ground, messuage, or
tenement, erections, buildings, and premises belonging or appertaining.'"

In Morris v. Edgington (2), which was decided in 1810, the facts
were as follows. The defendant had granted a lease of a public house to
the plaintiff. The greater part of the leased premises was on the west
side of a gateway of the defendant, which led, to a yard of the defendant.
A portion of the leased premises, being the tap room of the public house,
was on the east side of the gateway. By the lease 'the gateway and the
yard were expressly reserved to the defendant, but ifc granted a right of way
to the [296J plaintiff through the defendant's yard to some cellars at the
back of the yard, bub no right of way to the tap room was expressly
granted. Access to the tap room might be had either by entering that
part of the public house to the west of the gateway from the public
street by a door and passing through the coffee room and thence out and
across the gateway to the tap room, or by passing through the gateway
direct from the public street to the tap room. On entering the gateway
the door of th tap room and a finger board pointing to the tap room
could be seen. On the finger board were the words "To the tap room."
The defendant shuts the gate in the gateway at nightfall, and thus caused
the plaintiff some loss of custom. For that obstruction of the direct way
from the street to the tap room and the consequent damage, the plaintiff
brought his action and got a verdict, which the Court of Common Pleas


JUNE 27.




* 3 * 270=
* 3 A.W.N.
(1893) 151.

(1) 5 Bing. N.C. 25.
A VII 114

(2) 3 Taunton 24.


15 All. 297



1893 refused to set aside. It was there contended that the express grant

JUNE 27. f the right of way to the coal cellars excluded any implied grant of

a right of way direct from the street through the gateway to the tap room.

APPEL- In delivering his judgment Mansfield, G. J., said : "I say nothing of what

LATE * s a wa Y of necessity. I know not how it has been expounded. But it

ClVIL would not he a great stretch to call that a necessary way without which

the most o nvenient and reasonable mode of enjoying the premises could

13 A. 270= not be had. Then what are the circumstances of this case ? First, it is
13 A..W.N. much more convenient for any one to go to the tap room through the gate-
(1893) 151. way than through the coffee room, and it is much more convenient to
carry out beer through the gateway than through the coffee room. Can
it then be doubted that the intent was to give the same use of the way
over the gateway as the lessor before used to have ? * The

argument founded in the expression of the special right of way goes too
far ; for. if it deprives the plaintiff of this way it deprives him of all ways
to the tap room." It is rightly said of that case by the learned editor of
Gale on Easement, 6th edition, at page 113 : " This case is not conclusive
on the point " (of an implied grant of a way as apparent continuous)
" as it sufficiently supported by the principle that, some way beinq
necessary, the most usual and convenient should be taken. [297]
But the dictum of Sir J. Mansfield is of great importance." That
view is apparently based upon a dictum of Park, B., in the course of the
argument in Pheyse v. Vidiry (1). In that case Parke, B., said: " Is the
way contended for by the plaintiffs to be construed as of absolute necessity
for access to property in ir.g strict sense, as in the older cases, or as neces-
sary to the convenient enjoyment of his dwelling house with reference to
its condition at the time the testator had the use of ifc, as put in Morris
v. Edgington by Sir James Mansfield, who says : ' it would not boa great
stretch to call that a necessary way without which the most convenient and
reasonable mode of enjoying the premises could not be had.' One or other
of the ways there in question was essential to the use of the house, and
the Court ruled that the most convenient of them was that way of neces-
sity to which the party was entitled." With the fullest respect for the
opinion of so eminent a lawyer as Lord Wensleydale, we thick it may be
doubted if Sir James Mansfield could have intended to base his decision
on the way through the gateway from the street being an " easement of
necessity " by which the tenant's customers should go to, or return from,
the tap room, as in that case it might be doubtful if there, could bo another
way for the tenant's customers' use from the coffee room across the gate-
way to the tap room, with the result that a customer of the public house
who might be in the coffee room and who desired to carry away a pot of
beer, would have to go from the coffee room into the public street, and
thence through the gateway to the tap room instead of passing directly
from the coffee room across the gateway to the tap room.

The English cases which we have cited afford examples of the diffi-
culty of deducing a certain rule on this question from the decisions in
England. *

Although the more recent decieions in England show that where
in consequence of a severance of unity of possession such general
words of grant as " together with all ways now used or enjoyed
therewith" [Barkshire v. Grubb (2), Kay v. Oxley (3)] or as " with all
[298] rights, members, or appurtenances to the hereditaments belonging,

(1) 16 M. and W. 484.

(2) 18 Oh. D. 616.

(3) L.R. 10 Q.B. 360.



15 All. 299

or occupied, or enjoyed as part, parcel, or member thereof " [Bayley v.
G.W.E. Co. (1)J are used the distinction between a continuous easement
and a discontinuous easement does not apply and a right to use any made
and visible road over other land of the grantor which at the date of the
grant was in fact used for access to the land conveyed passes under such
general words, yet we are not aware of any authorities in England in
which it was necessary to decide, and inwhich it was decided, that a way
without any express or general words in a conveyance and apart from any
structural peculiarities of a building indicating that for the use of the
building, a way must have been intended to pass, would pass on a severance
as an apparent and continuous easement. In Bayley v. G.W.R. Co. (1)
Fry, L.J., appeared to have been prepared to go further than we think
any English Judge had previously gone. He there said (at p. 457 of the
report) : "If one person owns both Whiteacre and Blackacre, and if there
be a made and visible road over Wbiteacre, and that has been used for the
purpose of Blackacre in such a way that, if two tenements belonged to
several owners, there would have been an easement in favour of Blackacre
over Whiteacre, and the owner aliened Blackacre to a purchaser, retaining
Whiteacre, then the grant of Blackacre, either ' with all rights usually
enjoyed with it, ' or ' with all rights appertaining to Blackacre,' or probably
the mere grant of Blackacre itself without general words, carries a right of
way over Whiteacre." We do not suppose that Fry, L.J., intended to
suggest by the illustration that he would hold that a mere grant of
Blackacre itself without any general words would carry a right of way
over Whiteacre unless it either appeared en the production of the convey-
ance or was admitted by the parties concerned that the conveyance con-
tained nothing from which a contrary intention should be implied.

In our opinion an examination of the authorities does not support the
decision in Charu Surnokar v. Dokouri Chunder Thakoor (2), that a way
under the circumstances of that case might pass [299] by implication on
a severance as an apparent and continuous easement.

We are not prepared to hold that in this case, in which the plaintiffs
who bad to make out their title to a way over the defendant's property,
and who could have produced, but refused to produce, their title deed, any
right of way whatever over the property which now belongs to the defend-
ant passed to them by implication or as incidental on the transfer to them
of the Charleville property in 1886.

In conclusion, we may say that in these provinces in which strict
rules of conveyancing based on cases decided in England are little under-
stood, and are consequently seldom followed, the principle of justice, equity,
and good conscience embodied in sub-ss. (2), (4) and (5), read together, of
s. 6 of 44 and 45 Viet., Chap. 41, should be applied by us in this case, and
that we should hold, as we do, that the plaintiffs, have failed to make out
a right to use any way whatever over the defendant's land. If the plaintiffs'
title deeds would show that we might in justice, equity, and good consci-
ence hold that a way over the defendant's land passed by implication or
as incidental on the transfer to them in 1886 of the Charleville property,
they have only themselves and their legal adviser to blame for the result
of this litigation.

We allow the appeal and dismiss the suit with costs in all Courts.

Appeal decreed.


JUNE 27.


15 A. 270 =
13 A.W.N.
(1893) 151.

(1) 26 Ch. D. 434.

(2) 8 C. 956.



1393 15 A. 299 = 13 A.W.N. (1893) 142.


EEVI- Before Sir John Edge, Kt., Chief Justice, Mr. Justice Burkitt, and

Mr. Justice AiJcman.




18 A - 299 = [14th July, 1893.]

13 A W N

Act XLV of 1860, s. 395 Dacoity Forcible removal of cows by Hindus from the pos-
893) 142. session of Mahammadans.

Where a large body cf Hindus acting in concert and apparently under the
influence of religious feeling attacked certain Muhaminadans who were driving
cattle along a public road and forcibly deprived them of the possession of such
cattle under circumstances which did not indicate any intention of subsequently
restoring such [300] cattle to their lawful owners, Held that the oSence of
which the Hindus were guilty WAS daooity under s. 395 of the Indian Penal
Code, and not merely riot.

THE facts of this case are fully stated in the judgment of the Court.
Mr. /. E. Howard, for the applicants.

The Public Prosecutor (for whom Mr. A. H. S. Reid), for the


EDGE, C.J., BURKITT and AIKMAN, JJ. Rambaran Rai, Durga Rai,
son of Ram Baran Rai, Bhajan Rai, Durga Rai, son of Lappafl Rai, Aggia
Rai, Billar P t ai, Khedu Rai, and Abhai Rai were convicted by a Magis-
trate of the first class of offences under ss. 147, 325 read with 149 and 353
of the Indian Penal Code. For the offence under s. 147 they were sever-
ally sentenced to six months' rigorous imprisonment ; for the offence under
s. 325 each was sentenced to three months' rigorous imprisonment, and
for the offence under s. 353 jshey each received a sentence of three months'
rigorous imprisonment. They appealed to the Sessions Judge of Azam-
garh and he dismissed their appeals. They then presented an application
for revision to this Court. That application was rejected, but the Judge
before whom it came directed that these men should have notice to show
cause why their sentences should not be enhanced. The legality of the
convictions cannot now be questioned ; the only question is as to what
sentences the convicts ought to receive. In order to come to a conclusion
as to whether the sentences passed on these men were adequate or inade-
quate, it is necessary for us to see what were the facts which were found
and upon which the convictions were had. The facts wore shortly
these :

On the 9th of January, in the present year, one Pir Bakhsh and some
others were driving forty-two head of cattle along a public road known
as the Ghosi-Ghazipur road. The cattle were being driven to be sold to
some Commissariat contractors, no doubt with the intention that they
should ultimately be slaughtered for Commissariat purposes. When these
men arrived near uhe village of [301] Bhadisa a large number of people
came up, drove the men in charge of the cattle away and seized and carried
away the cattle. Information was given at the thana, and on the follow-
ing day the Sub-Inspector accompanied by some constables and chauki-
dars and others went in search of the stolen cattle and found them being
driven towards the jungle by three Ahirs. The Sub-Inspector and his

* Criminal Revision No. 296 of 1893.


men took possession of the cattle, and shortly after they had taken 1893
possession of tham, these eight men who have been convicted, and a JULY 14,
considerable crowd of others : who have not bean convicted or arrested,
came upon the scene armed with lathis. They attacked the Sub-Inspector BEVI-
and his assistants and succeeded in beating them off. They broke the SIGNAL
wrist of one of them and cut open the bead of another. We may mention CRIMINAL.

that one of those who were injured was one of the men from whom the

cattle had been taken on the 9fch of January. The persons who rescued 13 A. 299=-
the cattle from the custody of the police drove them away, and, so far as 13 A.W.N.
appears, the cattle have never yet been restored to the possession of their (1893) 142.
lawful owners. It has been argued by Mr. Howard, not that the offences
of which these men have been convicted were not committed by them,
but that we should take into account that the persons who attacked the
police and took from their custody the stolen cattle were actuated by a
religious motive which made them take away the cattle to prevent their
being slaughtered.

The Indian Penal Code is a statute of the Legislature applicable to
Muhammadans, Hindus, Christians and all other sects alike. It is
necessary in every civilized state that in order to protect the lives and
property of the members of the community penal laws should exist and
be enforced, and should be enforced no matter whether the person who
commits an offence against them is a Christian, or a Muhammadan,
or a Hindu or member of any other religious denomination. Penal
laws are made for the protection of all classes alike, and they do
not recognise any exception in the case of any particular denomi-
nation. A theft or a dacoity would not be any the less a theft or a
dacoity if committed by members of one denomination upon the mem-
bers of another ; for example, no Christian or [302] Muhammadan could
plead in a Court of Justice that he was not liable to be punished for
theft because he acted undar the incentive of some religious motive, if the
facts showed that theft had inreality been committed. There must, in all
states in which law and order are to abide, be penal laws -equally enforce-
able against every denomination ; and it is further necessary, unless we
are to return to barbarous times, that persons who choose to wage a
species of civil war on their neighbours should be adequately punished,
not only as a punishment to themselves, but as a warning to debtor others
from committing similar offences. A cow is an animal which in this country
a Muhammadan is entitled to hold as his property and over which he is
entitled to exercise all the lawful rights of an owner, and so long as that
Muhammadan in dealing with his own property does not, in the exercise
of his rights of ownership, commit an offence against the Indian Penal
Code, the law must and will protect him in the exercise of his rights.
Similarly the law will protect a Hindu or a member of any other denomi-

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 133 of 155)