R.L. Murab, J.
This is a second appeal by the plaintiff arising out of a suit for an injunction restraining the dependant from interfering with his right of easement.
The house of the defendant-respondent is situated to the West of the plaintiff-appellant''s house and the two houses adjoined each other. The plaintiff had purchased his house on 12-3-1935 by registered sale-deed. At that time it was single storeyed. Some time after the purchase the plaintiff made additions and alterations in the house and added 2 storeys over the ground floor. On the 2nd and 3rd storeys there are certain ventilators through which light and air was received from the west, that, is, from the side of the defendant''s house.
In December, 1956 the defendant also made additions and alterations to his house by constructing 2 storeys over it so as to interfere with the access to light and air through the ventilators in the house of the plaintiff from the west. So far the facts are not in dispute.
The case of the plaintiff-appellant is that he has acquired a right of easement for passage of light and air through the ventilators by prescription as well as by grant and as such the defendant has no right to interfere with it. He therefore, served the defendant with a notice dated 29-12-1956 to stop the construction of his house so as not to interfere with the aforesaid right; but as the defendant paid no need, he filed this suit claiming an injunction restraining the defendant from interfering with the aforesaid right of easement.
The defendant denied the claim of the plaintiff mainly on the ground that the plaintiff had not acquired any such right of easement. The trial Court held that although the plaintiff had failed to prove that he had acquired the alleged right of easement by prescription, he had acquired such right under a grant from the predecessor in title, namely, Mst. Nagina Bai and, therefore, decreed the claim. On an appeal by the defendant the decree of the trial Court was set aside and the suit of the plaintiff was dismissed. The plaintiff has, therefore, preferred this second appeal.
Shri H. G. Miskra, learned counsel for the appellant, frankly conceded that he was not in a position to challenge the finding of the Courts below that the plaintiff had failed to prove the acquisition of the right of easement by prescription. He, however, urged that the acquisition of the right under a grant had been established satisfactorily and, therefore, the decree of the trial Court should be restored.
Before proceeding to consider the question of acquisition of an easement by a grant, it would be pertinent to refer to the pleadings of the plaintiff on this point. In paragraph 3 of the plaint, the plaintiff stated as under:
The aforesaid pleading even if liberally construed merely means that the ventilators in question were constructed with the concurrence or acquiescence of Mst. Naginabai. There is no clear pleading on the point that Mst Naginabai had conferred a right of easement of light and air through the ventilators on the plaintiff.
It is no doubt true that the grant of easement may be either express or implied. It may arise by mere implication from the circumstances and conduct of the parties and it seems that the plaintiff has mainly relied on an implied grant to be inferred from the conduct of Naginabai. But where a grant has to be inferred from the conduct, the conduct must not be equivocal. If it is equally consistent with the non-existence of the grant, the grant cannot be inferred.
In the instant case no grant of easement can be inferred from express or implied consent of Naginabai to the construction of ventilators. The plaintiff was free to keep as many ventilators as he liked and in fact Naginabai had no right to object to the same because none of her rights was infringed thereby. Therefore if the plaintiff obtained the consent of Naginabai to the construction of ventilators it was superfluous because no such consent was necessary. No inference of grant of an easement of light and air can be drawn from such consent. Although an easement may be created by an oral grant and no particular words are necessary to constitute a grant, it should be clear that the grantor intended to impose an easement on the servient tenement belonging to him in favour of dominant tenement. Ordinarily one would expect an easement to be created by an instrument. Where the grant is oral great; caution is necessary to see what were the actual words uttered by the grantor and whether he really intended to create an easement in favour of the grantee.
As pointed out above, Naginabai had no right whatsoever to raise any objection to the construction of the ventilators and she could not take any steps to prevent the plaintiff from doing so. In these circumstances no grant can be inferred from the mere fact that she did not object to the construction of the ventilators.
Express grant has not been pleaded in clear terms. Moreover in the absence of any written instrument it was necessary for the plaintiff to prove the actual agreement between the parties pertaining to the grant. No such agreement has been proved.
Although no particular form or language is necessary to constitute a grant, the words used must convey the idea of an unequivocal grant of easement by the servient owner for the beneficial enjoyment of the dominant heritage by the dominant owner. There must be the manifestation of an unequivocal intention on the part of the servient owner to that effect. Where the grant is oral, the question whether it is a grant of interest in land or an easement or a mere licence is a question of fact to be determined by the Court from the words used and the circumstances under which they were used.
Even if it is assumed that Naginabai had made a grant of easement as alleged it would not help the plaintiff because it was not disputed before me that she was a limited owner of the property and she died long back. Section 8 of the Easement Act lays down that an easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. It is, therefore, clear that Naginabai was not competent to make a grant of the easement in question beyond her life time. To overcome this defect, Shri H. G. Mishra, learned counsel for the plaintiff appellant urged that the grant had been made with the consent of Hridaynarayan (P. W. 4) the next reversioner and, therefore, it could enure beyond the life time of the grantor. In the first place it has not been pleaded that the grant was made with the consent of Hridaynarayan (P. W. 4) and, therefore, no evidence on this point could be looked into. The plaintiff could not be permitted to make out at the trial a case different from the one pleaded by him. But even apart from this the evidence of Hridaynarayan (P. W. 4) does not appear to be worthy of reliance. Having lost interest in the property after transfering it to the defendant, he is free to say anything he likes to the detriment of the defendant and therefore, it would not be safe to rely on his testimony in the absence of any documentary evidence on the point.
In the instant case the learned Additional District Judge considered the evidence relating to the alleged grant as not reliable. I am inclined to agree with him for the reasons given above. Moreover the plaintiff merely pleaded a grant by Naginabai who was admittedly a limited owner. Even if such a grant is held to be proved the suit is liable to be dismissed on the ground that the grant must be deemed to have terminated on the death of Mst. Naginabai in view of section 8 of the Easement Act. The suit of the plaintiff was, therefore, rightly dismissed by the learned Additional District Judge.
The appeal, therefore, fails and is hereby dismissed with costs. Counsel''s fee according to scale, if certified.
