JUDGMENT
P.S. Narayana, J.
1. This Second Appeal filed by the appellant-plaintiff and the cross objections filed by the defendants are coming up before this court today for final hearing.
2. Heard Sri M.S. Ramachandra Rao, the learned Counsel representing the legal representatives of the deceased plaintiff-appellant in Second Appeal No. 13 of 1994 and Sri Srinivas Rao, representing Sri M. Lakshmana Sarma, the counsel for the respondents-defendants-cross objectors. This court on 29-4-1994 made the following order:
In view of the substantial question of law raised in ground No. 2, this appeal is admitted.
3. The substantial questions of law raised in ground No. 2 are as hereunder:
(a)Whether court below is right in refusing to grant relief of injunction to the extent of tractors in spite of unimpeached evidence of Commissioner report and admitted evidence of marks of using the passage for motor vehicles?
(b) Whether the admission of defendants regarding usage of motor vehicles by plaintiff itself is not sufficient to declare the easementary right to the plaintiff and if so the courts below are right in refusing the reliefs?
(c) Whether the appellate court is correct in refusing the relief of easementary right in part for tractors while reversing the trial court decree and accepting the entire evidence in favour of plaintiff and if so the court below is perverse in not considering the evidence as it is?
(d) Whether the courts below are right in refusing the relief regarding tractors, the right of easement, in spite of finding by Commissioner the pathway is being used for tractors also and which was denied?.
4. Submissions at length were made by both the counsel. The counsel representing the legal representatives of the appellant-plaintiff would contend that the appellate court having granted a decree limiting the same for certain purposes and negetiving the relief for passage of tractors cannot be sustained. The learned Counsel had also drawn the attention of this court to Section 13 of the Indian Easement Act,1882 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience). The learned Counsel also had drawn the attention of this court to report of the Commissioner and also plan filed by the Commissioner and would contend that even if the passage in question is used for taking up tractors, it would not alter the situation in any way and hence both in law and equity the appellant is bound to succeed. The learned Counsel placed reliance on certain decisions also in this regard.
5. Sri Srinivas Rao, the learned Counsel representing the respondents- defendants-cross objectors had taken this court through the findings recorded by the court of first instance and also the appellate court and would contend that the findings recorded by the appellate court relating to the right of passage are unsustainable findings. The learned Counsel also would submit that the partition deed was not produced before the court nor the partition between the parties had been proved. Even otherwise in the facts and circumstances of the case, Section 13 of the Act is not applicable and in view of the facts and circumstances, the judgment and decree of the court of first instance dismissing the suit to be restored by setting aside the judgment and decree made by the appellate court.
6. Heard the counsel on record.
7. The Second Appeal was filed by the plaintiff Undavilli Mangayamma being aggrieved of refusing relief for injunction to the extent of passing of tractors by the appellate court. The defendants who were successful before the court of first instance challenged the very reversing of the judgment and decree of the court of first instance by way of cross objections. The plaintiff who is no more, Undavilli Mangyamma instituted suit O.S. No. 49 of 1984 on the file of the Principal District Munsiff, Ramachandrapuram as against the defendants 1 to 3- respondents in the second appeal praying for declaration of right of way for passage of men, cattle, and vehicles like carts, tractors of the plaintiff to pass through the passage shown MNOP of the plaint plan into the plaintiff’s site ‘P’ marked land through the ‘D’ marked land of the defendants covered by R.S. No. 104/93 of Rayavaram Village for carrying agricultural operations in all seasons and for permanent injunction restraining the defendants from ever interfering with the right of passage of the plaintiff through the said passage and for future damages that may be fixed by the court and for other appropriate reliefs. The court of first instance, on the respective pleadings of the parties, settled the issues, recorded the evidence of P.Ws 1 to 5 on behalf of plaintiff and marked Exs.A.1 and A.2 and examined D.Ws 1 to 4 on behalf of defendants and marked Exs.C.1 to C.4 and ultimately came to the conclusion that the plaintiff is not entitled to the reliefs prayed for and dismissed the suit. The matter was carried by way of appeal- A.S. No. 13 of 1991 on the file of the Subordinate Judge, Ramachandrapuram and the appellate court having framed the point for consideration at para 7, discussed all the factual details commencing from Paras 8 to 13 and ultimately allowed the appeal setting aside the judgment and decree of the court of first instance and decreeing the suit of the plaintiff to the extent of taking her cattle, men, cattle plough for the purpose of puddling the land and other agricultural operations and also taking the bullock cart for carrying manure and to transport the cut paddy from the ‘P’ marked land through the ‘D’ marked land, but however, the prayer of the plaintiff for exercising the right of taking the tractor had been disallowed and accordingly permanent injunction is granted in favour of the plaintiff and against the defendants to the extent of the plaintiff’s right of taking her cattle, men and cattle plough, for the purpose puddling the land and other agricultural operations and also taking the bullock cart for carting manure and to transport the cut paddy from the ‘P’ marked land through the ‘D’ marked land and directed the parties to bear their own costs.
8. As already referred to supra, aggrieved by that portion of the judgment and decree in negetiving the relief of permission to take tractors, the plaintiff preferred S.A. No. 13 of 1994 and the defendants aggrieved by the reversing judgment and decree made by the appellate court preferred cross objections.
9. On the strength of elaborate pleadings before the court of first instance, the following issues were settled:
1.Whether the plaintiff is entitled to the declaration of right of way for the passage to pass through MNOP of the plaint plan into the plaintiff’ s ‘P’ marked land and also ‘D’ marked land of the defendants as shown in the plaint plan?
2.Whether the plaintiff is entitled to the injunction as prayed for?
3.Whether the plaintiff is entitled to damages? if so, to what extent?
4.To what relief?
10. As already referred to supra, PW 1 to PW.5 and DW.1 to DW.4 were examined and Exs.A.1 and A.2 and Exs.C.1 to C.4 were marked. For the purpose of convenience the parties hereinafter would be referred to as ‘Plaintiff’ and ‘Defendants’. It is needless to say that the plaintiff is no more and at present the legal representatives are prosecuting the present litigation. It appears that the plaintiff being an old lady was not examined and PW.1 who had knowledge about all the facts was examined and his evidence was well corroborated by PW.2, PW.3, PW.4 and PW.5- the Advocate Commissioner also was examined. Exs.C.1 to C.4- the commissioner warrant, notice to both parties given by the Commissioner, Commissioner’s report and Commissioner’s plan also had been discussed at length. The evidence of DWs 1 to 4 also had been discussed in elaboration. It may be appropriate to have a glance at respective pleadings of the parties as hereunder:
Plaint:
Plaintiff’s husband late Undavilli Venkanna, 1st defendant’s husband and father of defendants 2 and 3 one Undavilli Kondayya and another Undavilli Veerraj are brothers and sons of late Undavilli Amanna and his wife Seshamma. Plaintiff’s husband died issueless and intestate leaving the plaintiff as the sole heir at law, and since then plaintiff has been enjoying all the property devolved upon her after the demise of her husband with absolute rights including the ‘P’ marked property shown in the plaint plan covered by R.S. No. 104/3 constituting the eastern half of the same. Late Kondayya died intestate leaving behind him the defendants as his heir about 4 or 5 months after the death of the plaintiff’s husband and hence after the demise of Kondayya all his properties have been in enjoyment of the defendants including the D marked portion situated in the western side of R.S. No. 104/3 as shown in the plaint plan. Late Veerraju who is the youngest brother of late Venkanna predeceased Venkanna leaving his widow, three sons and one daughter. These three brothers late Venkanna, Kondayya and Veerraju divided their properties in the year 1935 while their parents were alive and have been enjoying their respective shares since then including the plaint schedule property covered by R.S. No. 104/3 along with other properties. The total extent of R.S. No. 104/3 of Rayavaram is Ac.0.49 cents out of which eastern half fall to the share of Venkanna and the remaining extent fall to the share of Kondayya. D marked land covered by ADEF belongs to the defendants and the P marked land covered by ABCD belongs to the plaintiff and AD is the boundary bund existing since after the partition of the land between late Venkanna and Kondayya and there is a bodi running on the north of the ED boundary bund up to the P marked portion existing since the time of partition carved out by late Kondayya and Venkanna together, for supply of irrigation water to the P marked land. Late Venkanna and thereafter plaintiff have been drawing irrigation water uninterruptedly though the bodi for all the crops including 1st and 2nd paddy crops raised in the ‘P’ marked land. There is a wide puntha abutting on the west of the ‘D’ marked share running from north to south covered by R.S. No. 104/1 serving as a passage to men, cattle, carts and tractors and other vehicles to be taken to the various lands in the vicinity for the agricultural operations during all the seasons of the year including the land covered by R.S. No. 1043 shown in the plaint plan. As a result of the partition of the land shown in the plaint plan into two shares between Venkanna and Kondayya in the year 1935 naturally on the severence of tenants, a right of way had to be provided to reach the P marked land through the D marked land for men, cattle, and vehicles for carrying on various agricultural operations during all the seasons of the year and such a right in fact has been provided to the plaintiff’s husband late Venkanna by Kondayya and it has been in continuous use and vogue since the time of partition and after the demise of alte Venkanna, the plaintiff also has been continuing the personal cultivation of the ‘P’ marked land through the assistance of one Valluri Sathiraju and Mallidi Sathireddi till the marriage of the foster daughter of the plaintiff who is the natural daughter of late Veerraj brother of late Venkanna and after her marriage, her son-in-law Anaparthi Venkataramanmurti has been assisting the plaintiff to carry on the personal cultivation of the plaintiff including the P marked land. The right of way has been enjoyed by the plaintiff’s husband and later by the plaintiff continuously as of right openly, peacefully, without any obstruction by late Kondayya or by the defendant till ten days prior to the issue of the Registered notice to the defendants on 1.1.1984. The defendants have no manner of right to obstruct the right of way so as to disable the plaintiff to carry on the agricultural operations in the ‘P’ marked land. Out of spite and jealous, the defendants resorted to cause obstruction to the passage of a Tractor when it was being taken for puddling the ‘P’ marked land in order to raise 2nd crop. As the plaintiff has no children, she brought up the daughter of her husband’s brother Veerraju and got her married to one Anaparthi Venkataramanmurthy about two years ago and this invoked irritation and dislike to the defendants. Apprehending that the plaintiff may give out all the property to her foster daughter alone, defendants resorted to cause trouble to the plaintiff so as to coarse her and extract some property and with this intention, they caused obstruction to the passage of the tractor through the MNOP passage and the plaintiff was obliged to leave the ‘P’ marked land hallow without raising the 2nd crop in the land in the year 1983-84 and hence she got issued a notice dated 1.1.1984 through the advocate not to obstruct the passage of tractors through the MNOP, for which the defendants got issued a reply dated 13.1.1984 with contentions averments, and their main contention is that there is no possibility of taking carts and tractors through the D marked land to the P marked land since the partition in the year 1935 and as such the plaintiff or her husband never enjoyed such a right and could not have enjoyed it since 1935. It is further averred in the said notice that the ploughing of the land was being carried on with the help of country ploughs only and no carts or tractor were ever used by the plaintiff or her husband or by late Kondayya and the defendants to carry on agricultural operations in the lands covered by the plaint plan and the cut crop was being carried by head loads to the fields west of the Puntha where thrashing operation was carried on. The right of passage for carts and tractor was set up for the first time at the instance of Anaparthi Venkataramanamurty. There used to be a cement pipe of about 4 or 5 yards in length in the bodi existing previously abutting the Dimma and men, cattle, carts and tractors used to pass through this passage to the Dimma and from there into the P marked land. It is absolutely false to state that vehicles could not pass between the two tamarind trees of the defendants. There is sufficient width for the vehicles to pass through. However, they are not concerned in the puntha existing to the north of R.S. No. 104. The plaintiff has been carrying on the agricultural operations with the aid of a tractor since over 20 years from beyond the period of limitation. The relationship between the plaintiff and the natural mother of her foster daughter were not cordial and were strained. The right of way that was granted and exercised from the time of partition is general in character and it cannot be limited now to the passage of men and cattle only at the choice of the defendants. Change in implements and technological improvements in carrying on various agricultural operations cannot be excluded to be utilized by the sharer and stick on only to the out dated modes of work and implements. General right of way for agricultural purposes necessarily includes the passage of vehicles like carts to carrying produce, manures etc., to the fields. It is inconceivable that no cart was over used either by the plaintiff or the defendants in carrying on the agricultural operations in the respective fields. In fact, carts were used till the advent of tractors for carrying on the materials to and from the fields of both the parties and since the advent of tractors 20 years ago use of tractors for ploughing and carrying materials have come into vogue. It is common knowledge that use of tractors improves the fertility of the land and yields more produce than ploughing with help of age old wooden ploughs. In the absence of any plea limiting the general right of way, defendants cannot put limitations in its reasonable use of right use of way for cattle and carts including the right of way for tractors under Law. Hence, the defendants cannot set up rights prohibiting the passage of tractors in the absence of the contract to the contrary. Therefore, the plaintiff is entitled to the declaration.
11. Written Statement was filed by defendant No. 2 and the same was adopted by defendants 1 and 3. It was pleaded in the written statement as hereunder:
The plan filed by the plaintiff is prepared designedly to prop up the false contentions raised in the plaint to support the reliefs claimed in the suit. The plaintiff did not show extension of the Dimma in the ‘D’ marked land to the south in continuation of the Dimma shown in the north on the west and the entire western portion of D marked land of the defendants is Dimma. The plaintiff omitted to show the existence of cattle shed in the north-west of D marked land on Dimma and also the well with cement rings to the south of T-2 marked Tamarind tree nor did she show the existence of traces of the removed hay-rick on the southern side of Dimma on the south of the well. The plaintiff also did not show the three mango trees the neem tree, living palmyrah tree and the bottom trunk of the cut palmyrah tree on the edge of the dimma in the D marked land. Various physical features willfully omitted to be shown in the plaint plan, if actually shown, that the alleged right claimed by the plaintiff to take a tractor across the defendants’ D’ marked land from west from the Puntha to the west of the ‘D’ marked land into the P marked land and the puddling of the P marked land with the tractor would be not only absurd but would be impossible and to avoid the same, the plaintiff omitted to show all the relevant things existing in the P & D marked lands. The partition of the family properties amongst the plaintiff’s husband Venkanna, the first defendant’s husband the father of D.2 and D.3 by name Kondayya, and another Veerraju is true, in which out of the full extent of Ac.0.49 cents covered by R.S. No. 104/3 western half shown as D fell to the share of Kondayya while the eastern half shown as’ P’ fall to the share of Venkanna and they have been in possession and enjoyment of the plaintiff and the defendants after the death of Venkanna and Kondayya. There is a puntha on the west of extent of Ac.0.49 cents runs from north to south and there used to be an irrigation bodi running from north alongside the western field bund of the D marked land and the width of the bed is about one yard and the width of each of its bunds on East and West are also of similar width and that bodi used to extend up to South-west corner of the D marked land from where the bodi shown on the south of the D marked land used to flow into the ‘P’ marked land. The said bodi used to supply water for irrigation purposes to both the lands. The Puntha on the west of the western bodi existing to the west of D marked land was very narrow from the beginning having encroached up by the ryots of owners of lands on the East and West of the puntha. Consequently, neither carts nor tractors nor any other vehicles used to pass through. A cement pipe of about one yard length was laid in the said North- South running bodi alongside the western bund of the D marked land and over it a temporary baddi of one yard width was constructed and over that baddi cattle and men used to pass to the D marked land and from there to the P marked land. All along the P and D marked lands are puddle with country ploughs drawn by ploughing cattle. Neither P marked land nor the D marked land were over puddle by a tractor from the beginning till so far. The puddling of P and D marked lands with the tractor is impossible, so also the getting of a tractor to the said lands is also not possible. The use of tractor by agriculturists has begun round about 10 to 12 years that too by land owner owning large tracts of land and owners of small extents of lands like the plaintiff or the defendants have been puddling their lands all through by country ploughs drawn by ploughing cattle. The existence of dimma on the west of D marked land and cattle shed over it, trees, well and the hay-rick, the trees on the edge of dimma and debris pit on the western edge of the dimma and above all the width of the puntha on the west of D marked land prior to its widening in the year 1983 do not admit the taking of a tractor from the narrow puntha in the west to the P marked land via D marked land. The plaintiff or her husband never took a tractor accordingly into the P marked land. After the receipt of the reply notice, the plaintiff prepared a plan showing MNOP as the pathway for tractor to the P marked land from the West. The averments in para 12 of the plaint that the plainiff’s right of way became perfect and enjoyable by adverse enjoyment since the plaintiff enjoyed the right till ten days prior to issue of registered notice dated 1.1.1984 are not at all true. The plaintiff and her husband have a right to take their ploughing cattle and country ploughs through the D marked land from the western puntha into their P marked land and plough their land, which the plaintiff’s husband has on account of the partition of the extent of Ac.0.49 cents of land into two shares. Further, the cut paddy crop in both the P and D marked lands used to be carried over head loads through lands on the west of the puntha where they used to thrash paddy with the cattle. Therefore, there was no need for any carts to be taken to the P marked land via D marked land from the puntha in the West and it was never contemplated at the time of partition that carts and tractor should be taken to P marked land. The idea of tractors could not be there at the time of partition in the year 1935 when the use of the tractors is not in vogue by the agriculturists. There was no need for the plaintiff or her husband to take carts in to the P marked land for any purpose. The plaintiff’s husband always puddle the P marked land with country ploughs drawn by ploughing cattle and after his death, the plaintiff has been continuing the same till today. Recently Undavilli Satyanarayanamurthy who is the President of Rayavaram Panchayat Samithi improved the village in several ways and in doing so, one of the improvements that he did was all the encroachments in the porambokes by the adjoining ryots or land owners were removed without any consideration what-so-ever and while so doing, the bodi running on the west of D marked land running from North to South was found dug in an encroached portion of the puntha and so it was covered up and similarly the encroachment on the western side of Puntha was got removed. Thus the width of the puntha is enhanced by widening it and also by raising its level to facilitate taking carts and tractors up to drainage channel in the North from the land covered by R.S. No. 104/3. The removed bodi on the west of the D marked land was dug on the west of newly formed puntha and the said newly formed bodi was connected with the existing bodi on the southern side of the D marked land shown in the plaint plan on the north of the Southern boundary bund ED, connecting the newly formed bodi with the bodi in the D marked land by means of cement pipes laid across the widened puntha covered into a mud road and since the widening of the road, a tractor or vehicle though they can go through the puntha from North to South they cannot go to the East in to the P marked land of the plaintiff through D marked land of defendant because of the physical features and other features existing there on the West of the D marked land adjoining the puntha. It is true that the plaintiff fostered the daughter of Veerraju, the younger brother of Venkanna and Kondayya and married her to Anapparthi Venkata Ramaanamurthy. The brother-in-law of Anaparthi Venkataramana Murthy by name Yaremanti Panasaramanna purchased a tractor and so with a view to create the right of taking tractor to P marked land of the plaintiff through the defendant D marked land, the plaintiff’s son-in-law and his brother-in-law attempted forcibly to take tractor through the Defendant’s Dimma causing great damage to the trees, other constructions and the hay-rick for which D.2 and D.3 obstructed and thereupon the son-in-law of the plaintiff and his brother-in-law were disputed by the defendants’ before Sri Vundavilli Satyanarayamurthy who has been also owning land on the South of the D marked land covered by R.S. No. 104/3 as well as on the west of the newly formed bodi on the West of the widened puntha, who admonished them for their attempt to take for the first time a tractor through the defendant’s Western Dimma causing damage and he advised them to follow the age old custom of taking cattle and country ploughs through defendant’s dimma and puddle P marked land and transplant the second crop. The plaintiff’s son-in-law and his brother-in-law having been persistent in their malafide attempt, get a notice dated 1.1.1984 issued to the defendants with false, frivolous, vexatious and contentions averments, for which the defendants sent a reply notice dated 13.1.1984 stating the real facts. The motive attributed in para 12 of the plaint for obstructing the plaintiff’s alleged right claimed in the suit is not at all correct and it is invented for the purpose of the notice and later to the suit. The defendants never expected plaintiff’s property and they never grew jealous on the plaintiff fostering the daughter of the Junior Paternal uncle of defendants 2 and 3. In fact, the plaintiff’s foster daughter’s mother and her three sons have been working with Sri Vundavilli Satyanarayanamurthy and it is only on account of that reason, the plaintiff’s son-in-law and his brother-in-law approached Vundavilli Satyanarayamurthy, but he being the elder man and who knows the facts relating to the subject matter of the suit despite the fact that the foster daughter of the plaintiff’s relations are working with him, could never tell falsehood and gave his decision in the matter based on his personal knowledge, actual practice obtained on land ever since he know it. The averments in the plaint that D.2 and D.3 are the henchmen of Rayavaram Munsiff and the relationship between the plaintiff and the natural mother of her foster daughter are not cordial and were strained were invented for the purpose of the suit. The averment that Rayavaram Munsif is enimical towards the husband of the foster father of the plaintiff since the husband worked for Telugu Desham Party during Assembly elections is not true. The taking of the cattle through the defendant’s D marked land into the plaintiff’s P marked land is different from taking carts and tractor. The taking of a tractor and carts naturally would enhance according to Law burden on the defendants’ D marked land which is a servient tenament. Hence, the alleged plaintiff’s right to take tractors across the defendants’ D marked land should be rejected. The defendants are always ready and willing to allow the plaintiff or her men to exercise the usual right of taking ploughing cattle and country ploughs to the P marked land via D marked land, and they informed the same to the plaintiff in their reply notice dated 13.1.1984. Notwithstanding the same, the plaintiff deliberately refrained from raising the 2nd crop in the P marked land and kept the same hallow with the malafide intention. If she did so, she did it out of her free volition and at her own risk and the defendants are in no way responsible for the same. The plaintiff is not entitled to the relief of declaration prayed for in the suit.
12. The issues settled were already referred to supra.
13. The fact that there was partition between the brothers- Venkanna, Kondayya and Viraraju and the plaintiff is the legal heir of Venkanna and she had succeeded to the ‘P’ marked land of the plaint plan and the defendants are the legal heirs of Kondayya and they had succeeded to the ‘D’ marked land of plaint plan, these aspects are not in serious dispute. As can be seen what had been recorded by the appellate court at Para 9 is that ” the contention of the plaintiff is that the right of passage is given over D marked land of the plant plan to reach her P marked land not only for men, but also for cattle and vehicles like carts and tractors to puddle the P marked land. But the defendants disputed this and contended that only right of passage is given for passing of men and cattle and not for carts and tractors.”
14. Substantially the contest between the parties, appears to be to the said limited extent. Section 13 of the Act deals with Easement of Necessity and Quasi Easement. Section 13(e) & (f) read as hereunder:
Where a partition is made of the joint property of several persons:
(e) If an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall been titled to such easement; or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
15. In Ershad Ali and Ors. v. Muhammad Yakub Khan and Ors. it was held at para 7 as hereunder:
It is not necessary to deal with the various grounds raised by the defendants in cross objection, as prima facie the finding of the lower appellate court that plaintiffs are entitled to a right of“111 way on Plot No. 718 as easement of necessity is contrary to law and also not a case pleaded in the plaint. The trial court in its finding under issue No. 3 held that plaintiffs acquired a prescriptive right of way by their possession and user for more than twenty years till the obstruction was created in the year 1953. On the other hand, the lower appellate court does not appear to have accepted this finding and has referred to the report of the commissioner and his evidence and observed that ” in view of the commissioner’s report that there is no other passage for going to the main road from the house of plaintiffs Nos. 1 to 4 except on plot No. 718. I think, plaintiffs Nos. 1 to 4 are entitled to a right of way as decreed by the trial court as an easement of necessity.
As stated above, this finding cannot be maintained. Firstly in the plaint, a right of way as an easement of necessity has not been claimed by the plaintiffs. Secondly an easement of necessity arises only where by a transfer , bequest or partition, a single tenement is divided into two or more separate and distinct tenements and any of these tenements (whether transferred or reserved) is so situated that it cannot be used at all without the enjoyment of a certain privilege on any other of such tenements. In such circumstances, law presumes the implication of a grant or reservation of such a privilege in favour of the person holding the tenement. In other words, to constitute an easement of necessity, a single tenement must have been divided into two or more separate and distinct units and the situation of one of them is such that it cannot be used or enjoyed without a certain privilege like a right of way etc. over another.
16. In Pedda Sethammappa and Ors. v. Pedda Appaiah 1961 (1) Andhra Weekly Reporter 383 it was held that the effect of Section 13 of the Easement Act is that in cases of partition, if an easement is one of necessity, a person to whose share certain property falls is entitled to the easement apart from any question of its being apparent or continuous, but that if the easement is not one of necessity but is merely one necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, then such an easement should be apparent and continuous. In the instant case the right claimed is the right to a path-way or cart-track and so far as the right of way is concerned, it is settled law that it is not apparent and continuous easement.
17. The appellate court while allowing the appeal had carefully scrutinized the whole evidence available on record and came to the conclusion that the findings recorded by the court of first instance cannot be sustained. As can be seen from the report of the Commissioner and also the plan submitted, it is clear that this passage in question is sufficient for passing through of the tractors too. It is not the case of the either parties that it is not possible to take tractors through this passage or the width of the passage to be expanded.
18. That being so, appellate court having granted the relief specifying certain categories and negativing relief for the passage of tractors, in the considered opinion of this court is neither just nor equitable. Hence, in addition to the relief which had been already granted by the appellate court, it is made clear that the appellants are entitled to use the passage in question for taking tractors also. It is needles to say that the grounds raised in the cross objections being devoid of any merit and the same are liable to be rejected and accordingly negatived. In the light of the appreciation of the evidence available on record at length by the appellate court, this court is of the considered opinion that the same exercise need not be repeated again by this court while exercising the jurisdiction under Section 100 of the Code of Civil Procedure.
19. In the light of the findings recorded above, the appellant is bound to succeed and accordingly the S.A. No. 13 of 1994 is hereby allowed granting relief in favour of the appellants-legal representatives of the plaintiff to take tractors also in the passage in question. The cross objections are hereby dismissed. In view of the close relationship between the parties, the parties to the litigation to bear their own costs.