Vikramajit Sen, J.
1. By these orders I shall dispose of an application filed by the Plaintiff praying for issuance of an ad interim injunction in the suit for permanent, prohibitory and mandatory inunction. Briefly stated the Plaintiff was the tenant in respect of the Mezzanine Floor of 11-E, Connaught Circus, Connaught Place, New Delhi which tenancy had been created in 1970. In 1986 the Plaintiff entered into a lease in respect of the First Floor bearing municipal No.E-37 Connaught Circus, Connaught Place, New Delhi (hereinafter referred to as the `suit premises'). In this manner the Plaintiff became the tenant of both the floors. A suit for eviction in respect of the Mezzanine Floor was filed by the Defendant in the year 2000 which suit has already been decreed. The Plaintiff has been evicted from the premises through the Court Bailiff. This suit, thereforee, concerns the First Floor premises, and has been filed on 30th December, 2000 which is a fortnight after the aforementioned eviction of the Plaintiff from the Mezzanine Floor. An ex parte ad interim injunction had been granted on 30.12.2003 interdicting 'the Defendants from obstructing or preventing access of the Plaintiff, his representatives and customers to the showroom in the first floor through the staircase leading to the opening on the inner circle and leading to the mezzanine shop and first floor delineated in Annexure A and B.'
2. The suit premises has been let out for a term of five years from 1.7.1986 by a Lease Deed of that date. There is no specific mention in the Lease Deed as to the mode of ingress and egress to the suit premises. However, in the plan annexed to the Lease the rear staircase has been shown albeit not as a part of the suit premises.
3. It is the admitted case of the parties that on 4.7.1986 the Plaintiff sought permission from the Defendants to carry out additions/alterations in the suit premises as well as the Mezzanine Floor by means of two letters of that very date. Interestingly the letter pertaining to the suit premises makes no mention of the front staircase or that from the Mezzanine to the First Floor, use of which has been claimed in these proceedings. This subject has been dealt with in the letter in which reference to the Mezzanine Floor has been made. It reads as follows:
4th July, 2004
Shri Raghubir Saran Charitable Trust,
40-42, Janpath,
New Delhi.
Dear Sir,
Sub: PERMISSION UNDER CLAUSE 4 OF THE LEASE DEED DATED 1ST JULY, 1986
The undersigned is a tenant of Shop No.11-E (Mezzanine Floor) forming part of your building situated on Units Nos. 13 to 29, Block-E, Circus-D, Connaught Place, New Delhi on a monthly rental of Rs.2,500/- per month. There is a stair case abutting inner circle of Connaught Place, New Delhi that stair case leads; up to the Mezzanine Floor over and above 11-E, Connaught Place, New Delhi. I seek your permission to provide an additional internal staircase leading from Mezzanine of Shop 11-E to first floor, Flat No.4, Mpl No.37-E, the tenancy of which also is in the name of the undersigned. I, the undersigned assure you to fulfill the following conditions:-
1.That the internal stair case will be provided to connect Mezzanine and first floor premises taken by the undersigned on rent without causing any damage to any part or portion of the building of which the demised premises are a part.
2.That for providing the internal stair case I shall engage qualified architect or building engineer. The construction work will be carried out on the advice of the said architect/building engineer.
3.That all expenses incurred in engaging the Architect/building engineer and contractor etc. together with all expenses to be incurred for the provision of the said internal star case will be borne by me alone; and no amount will be spent by you on any score concerning the said construction in any way whatsoever.
4. That I shall remain responsible to answer, remedy and remove any or all objections if raised by NDMC, DDA, L & DO or any other local or quasi judicial, authorities in respect of this extension of the staircase and further indemnify your Trust, its Trustees and Officials harmless from any action of the aforesaid authorities. In case any warrant or summons for arrest or demolition orders of any order, if issued or received by your Trust from any of the authorities, I shall solely remain responsible for the same. The said orders may be communicated to me for onward action.
5. The undersigned shall bear all additional municipal taxes, ground rent and or any other penalty, levy, tax, case fee or any amount imposed by whatsoever name it may be by NDMC, DDA, L & DO or any Authority in respect of this providing internal staircase. In the event of any such amount if required to be paid by you or charged from you in this regard, I undertake to reimburse the same to you and if I fail to reimburse you with the said amount within 10 day upon hearing from you the same will be realised from me with an interest @ 20% per annum thereupon till it is finally and completely paid or discharged.
6. That in the event of my vacating the said premises the said construction will be left intact and no compensation will be claimed in respect thereof.
I, shall thereforee, request you to accord your approval in writing for the construction of internal staircase referred to above up to the first floor level as requested herein.
Thanking you,
Yours faithfully,
Sd/-
(Sanjeev Kumar Jain)
4. Quite obviously because the Lease Deed of the suit premises makes no mention of access through the front staircase (this could not be possible as is would have been anachronistic since the interconnecting stairway was constructed after the commencement of the tenancy) the Plaintiff has relied on Section 13 of the Easement Act. The Plaintiff's contention is that a conjoint reading of the Lease Deed and these two letters gives a vested right to the Plaintiff to use the front staircase. Alternatively Section 13 of the Easement Act has been invoked to protect this right. Access to the suit premises from the rear staircase, it has been contended by learned counsel for the Plaintiff is not a substitute for the front/one nor has the rear staircase ever been used by the Plaintiff. The Defendant, to the contrary, has argued that the ex parte ad interim injunction had been obtained by suppressio vari or suggestio falsi as the Plaintiff has deliberately misrepresented itself as a tenant in respect of the Mezzanine Floor, although it had already been evicted there from. The Plan shows the rear staircase. The permission was given only to interconnect the Mezzanine and First Floor, and not by way of a right to use the front staircase.
5. In order to effectively decide the conundrum which has manifested itself in this dispute, the concept of an 'easement of necessity' has to be understood in all its complexities and manifestations. Section 4 of the Easement Act, 1882 defines it as '...a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own'. The statute thereafter clarifies that ' the land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner'. The Section further explains that the expression 'beneficial enjoyment' includes also possible convenience, remote advantage, and even a mere amenity; and the expression 'to do something' includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon'. The Illustrations first gives the instance of an easement as that A, as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house. Thereafter, Section 13 defines easements of necessity and quasi easements thus-
'13. Easements of necessity and quasi easements.-- Where one person transfers or bequeaths immovable property to another--
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or lessee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c ) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied be entitled to such easement.'
6. The decisions rendered in England around the time of the enactment of the Easement Act should be discussed as they will disclose the legal ethos which led to the enactment of the statute. Pearson v. Spencer, 1861 Q.B.1B. & S. 569 sets down that even if a particular passage has been enjoyed for a considerable period, upon a change in content or ownership of the entire property this right must be mentioned in the conveyance with the exception of land-locked property where it continues as a necessity. In Wheeldon v. Burrows, [1874] All 669 these principles had been expressed - 'On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed there will pass by implication to the grantee all those continuous and apparent easements and quasi easements which are necessary to the reasonable enjoyment of the property granted and have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted. If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant, save in the case of an easement of necessity the reservation of which will be implied. Otherwise no implication can be made of the reservation of an easement to the grantor'.
7. The foregoing decision was analysed in Brown v. Alabaster, 1886 B. 3051 490 Chancery Division Vol.xxxvII. It seems to me to be of importance to underscore that the 'back-way' was already in existence when the property was conveyed/demised in this case before the Chancery Division, which crystalised the law in this passage--
In Wheeldon v. Burrows (1), as is well known, the Court of Appeal drew a distinction on the much-contested question what rights were reserved to a grantor, and the distinction, as taken in the language of Lord Justice Thesiger, which has been much considered and approved of by other Judges, and which has been often quoted since, is this (2): 'We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements)'-- and the interpretation there interposed is necessary, because, where the owner of two tenements grants one of them, there can be no easement at the moment of the grant over the other tenement, the two tenements having belonged to one and the same person, and an easement being a right over the land of somebody else --'or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant.' That is the broad distinction which has been recognized, as far as I know, ever since, between the implied grant of an easement and the reservation of an easement.
8. In Pwllbach Colliery Co., Ltd. v. Woodman, [1914] All 124, the House of Lords has encapsulated the facts in these words - 'By a lease of certain lands and premises dated Sept. 28, 1907, and made between F.G. and the Y. company, the Y company were authorised to put up works and erections and to carry on the trade of mining. By a sub-lease dated Aug. 8, 1908, the appellants became sub-lessees of the premises on the terms of the lease of Sept. 28, 1907. In 1909 F. G. demised to the respondent adjoining land on which the Respondent erected buildings which he used as a slaughterhouse, sausage factory, etc. In 1912 the appellants erected on their land buildings in which they broke, screened, and washed coal, thereby creating dust which the respondent alleged penetrated his buildings and damaged his meat and sausages therein. In an action by the respondent for an injunction restraining the appellants from continuing this course of action the jury found that what the appellants had done amounted to a nuisance, but that they had carried on their operations in a way which was reasonable and customary in the neighborhood'. The following passage from the speech of Lord Atkinson justifies extraction-
Sir James Ingram in Blakesley v. Wheeldon (6) founding himself on these two cases, laid down the law thus (1-Hare, at p.180):
'The general principle of law, that, where a person makes a grant of any given thing, he impliedly grants that also which is necessary to make the grant of the principal subject effectual, does not admit of dispute.'
In Hinchiffe v. Earl of Kinnoul (7) which was a case concerned with a right of way in which the jury had returned a special verdict, TINDAL, C.J., in delivering the judgment of a court composed of VAUGHAN, BOSANQUET, COLTMAN, JJ., and himself, said (5 Bing.N.C. at p.24):
'We are of opinion on the facts found in this special verdict, such right [i.e., the right of way] did pass as a necessary incident to the subject-matter actually demised.'
He then cites the passage from PLOWDEN's COMMENTARIES already referred to, and says:
'TWISDEN, J., in Pomfret v. Ricroft (4) lays down the rule of law to be 'when the use of a thing is granted everything is granted by which the grantee may have and enjoy such use. As if a man gives me a license to lay pipes of lead in his land to convey water to my cistern, I may afterwords enter and dig the land to mend the pipes, though the soil belongs to another and not to me.''
The special verdict had found that the right of way was not only convenient but necessary for the use of the lessee's premises.
From these authorities it is, I think, clear that what must be implied is, not a grant of what is convenient, or what is usual, or what is common in the district, or what is simply reasonable, but what is necessary for the use and enjoyment, in the way contemplated by the parties, of the thing or right granted. Three cases, however, were cited by counsel for the appellants in support of their contention on this point. First, Hall v. Lund (1). In that case a lessee of a mill carried on for a number of years on the premises demised the trade or business of a bleacher. In the course of this business he discharged into a certain watercourse, the property of his Lesser, about seven times each fortnight, water used, and in the using fouled, in his woks, thereby polluting the water in the watercourse. The lessee surrendered his lease, and a new lease was made by this same Lesser to a lessee described in it as a 'bleacher,' the premises demised being themselves described as the premises late in the occupation of the former lessee. By the last clause of the new lease it was provided that all buildings erected by the lessee for the purpose of carrying on the bleaching business should at the end of the term belong to the Lesser. It was held that there was an implied grant to the lessee of the right to use this watercourse, as the former tenant had used it, for the purpose of carrying on the bleaching business. That case, however, was wholly different from the present. Here the works causing the nuisance were erected and worked during the term. There was no user antecedent to the grant of the lease of any portion of these premises for a business such as the appellants carried on in them. The ground of the decision, as stated by MARTIN, B., shows that the case had no application to the present case. He said (1 H.C. at p. 681):
'In ascertaining what passes by a conveyance evidence may be given as to the state of the property at the time and the mode in which it was enjoyed.'
9. It would be of advantage to refer the decision of the Privy Council of over a century's vintage in Sultan Nawaz Jung versus Rustomji Nanabhoy Byramji Jijibboy, 2nd 24 PC 156 where the provisions of the Easement Act came to be considered and interpreted as follows:
The Indian Easements Act, 1882, section 15, enacts that 'where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for 20 years... the right to such access and use.... shall be absolute,' and Explanationn I says 'nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement.' It was contended for the appellant that the matter here rested in negotiations and there was no agreement. Their Lordships do not agree to this; they think the fair inference from the letter of the 17th May 1865, is that the respondent accepted the promise in the letter of the 11th May, 1865, but wished for some alterations in the form of it which be left to the option of Rustomji (165) Jamsetji Jijibhoy. This is confirmed by the letter of 4th September 1867, in which he refers to the correspondence and says that Rustomji Jamsetji Jijibhoy had agreed to throw no obstacle or hindrances of any kind whenever he required the windows to be blocked up. (This is not accurate, as the promise only related the respondent building his house higher, but it is probably what was meant.) Then he says that in his letter of the 17th May 1865, he asked for a more particularised paper to the above effect. This shows he considered that he had accepted the promise in substance, but wanted it to be in a different form. He then asked for an agreement or writing binding the appellant himself to block up the windows. This would be a different action from what is mentioned in the letter of 11th May, but having the same result. If this had been agreed to, it might have been contended that it was to be substituted for the other agreement, but it was not agreed to. The Appeal Court has found that there was an agreement in pursuance of which the appellant is allowed to enjoy the access of light and air through the windows on the south side of his house in return for which he promises that he will not raise any objection to those windows being blocked when the respondent should rebuild and raise his house, and the Judges say they were informed that the learned Judge at the trial in his oral judgment treated the letter of the 11th May as an agreement between the parties. Their Lordships are of this opinion, and they see no reason for holding that the respondent when he asked for the other agreement waived the performance of the promise in the letter of the 11th May 1865, or intended to abandon that agreement. Such negotiation as there was, related to the other proposed agreement. It appears to their Lordships that there was an agreement between the parties which prevented the enjoyment by the appellant of the access of light and air through the windows under section 15 of the Easements Act, giving a right to an easement, and they will humbly advise Her
Majesty to affirm the decree of the High Court in the appeal to it, and to dismiss this appeal. The appellant will pay the costs of it.
10. In Daroga Lal and Ors. v. Devi Lal : AIR1918Pat327 it has been observed that the principle established inter alias in Wheeldon v. Burrows, viz., 'when the property cannot be used at all and not where it is merely necessary to the reasonable enjoyment of the property' has been incorporated into the Easement Act. The Court dismissed the plaintiff's suit because of the finding that the plaintiff could have opened a door towards the north for access to his share and hence an easement of necessity did not exist. In M Gangulu and Anr. v. T. Jagannatham and Ors., AIR 1924 Mad 108 the DB discussed the same English precedent and held in favor of the plaintiff since it found sufficient evidence of an apparent, continuous and necessary easement. In Hindustan Co-operative Insurance Society Limited v. Secy. of State : AIR1930Cal230 , the Division Bench has opined that in order to claim an easement of necessity the land conveyed should be surrounded on all sides by lands belonging to third persons, the only ingress and egress being through the contiguous land of the grantee.
11. The comparatively recent decision of the Court of Appeal in Wong v. Beaumont Property Trust, [1964] 2 All 119. is also apposite and illuminating, and the following passage is worthy of reproduction--
'The question is: Has the tenant a right to put up this duct without the landlords' consent? If he is to have any right at all, it must be by way of easement and not merely by way of implied contract. He is not the original lessee, nor are the defendants the original Lessers. Each is a successor in title. As between them, a right of this kind, if it exists at all, must be by way of an easement. In particular, an easement of necessity. The law on the matter was stated by Lord Parker of Waddington in Pwllbach Colliery Co.. Ltd. v. Woodman, where he said, omitting immaterial words:
'The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted ... is to be used ... But it is essential for this purpose that the parties should intend that the subject of the grant ... should be used in some definite and particular manner. It is not enough that the subject of the grant ... should be intended to be used in a manner which may or may not involve this definite and particular use.:
That is the principle which underlines all easements of necessity. If you go back to Rolle's Abridgment you will find it stated in this way:
'If I have a field inclosed by my own land on all sides, and I alien this close to another, he shall have a way to this close over my land, as incident to the grant; for otherwise he cannot have any benefit by the grant.'
I would apply those principles here. Here was the grant of a lease to the lessee for the very purpose of carrying on a restaurant business. It was to be a popular restaurant, and it was to be developed and extended. There was a covenant not to cause any nuisance; and to control and eliminate all smells; and to comply with the food hygiene regulations. That was 'a definite and particular manner' in which the business had to be conducted. It could not be carried on it that manner at all unless a ventilation system was installed by a duct of this kind. In these circumstances it seems to me that, if the business is to carried on at all-- if, in the words of Rolle's Abridgment, the lessee is to 'have any benefit by the grant' at all--he must of necessity be able to put a ventilation duct up the wall. It may be that in Mr. Blackaby's time it would not have needed such a large duct as is now needed in the tenant's time; but nevertheless a duct of some large kind would have had to be put up the wall. The tenant may need a bigger one. That does not matter. A man who has a right to an easement can use it in any proper way, so long as he does not substantially increase the burden on the servient treatment. In this case a bigger duct will not substantially increase the burden.'
12. The present application under Order XXXIX of the CPC has to be decided in the light of the above appreciation of the law and the rival contentions of learned Senior Counsel for the parties. As has already been mentioned above the Lease Deed dated 1.7.1986 makes no mention which staircase is to be used for ingress and egress to the suit premises. The annexed plan, however, shows the rear and not front staircase. Since the Mezzanine and First Floor were not interconnected at the inception of the tenancy of the suit premises the Lease Deed could not have conceivably granted the right of use of the front staircase which does not lead to the suit premises. Logically, the Lease Deed could also not have made any mention of this fact for the simple reason that it had not been anticipated that the Plaintiff would be evicted from the Mezzanine Floor only. Since the tenancy was for the term of five years it had necessarily to be reduced to writing, to be duly stamped and to be registered. Section 91 of the Evidence Act, 1872, thereforee, immediately comes into play thereby restricting reliance to the Lease Deed itself. While there may be legal impediments in relying upon even the letters dated 4.7.1986 no oral evidence to contradict or add any of the terms of the Lease Deed is admissible. If it was already within the contemplation of the parties that the Mezzanine and First Floor would be interconnected they could easily have mentioned it in the Lease Deed itself, thereby rendering this controversy completely otiose. It would then not have been dealt with separately in the two letters dated 4.7.1986. The sixth paragraph of the letter extracted above states that in the event of the Plaintiff's vacating (or being evicted from) the suit premises the interconnecting stairs would be left intact, would constitute an accretion to the entire property and no compensation would be claimed for it. As in the case of the Lease Deed this document also does not specifically grant or record the Plaintiff's right to the use of the front staircase. As has already been seen the rear staircase has been shown in the Plan which is a contemporaneous document along with the Lease Deed. This Plan which was annexed to the Lease Deed dated 1.7.1976, has been suppressed by the Plaintiff and no satisfactory Explanationn for this is forthcoming. The inescapable conclusion is that the Plaintiff has no contractual right to use the front staircase.
13. Understandably, thereforee, learned Senior counsel for the Plaintiff has relied on Section 13 of the Easement Act. The statute as well as precedents on the point are explicitly clear that in order to avail of the benefits of Section 13 of the Easement Act the Plaintiff must show that the use of the front staircase was one of necessity. The Plaintiff must satisfy the Court that no ingress and egress is possible to the suit premises except through the front staircase or that if the rear staircase which is contemplated in the Lease Deed, alone has to be used it would render at naught the utilization of the suit premises. It must also be borne in mind that there is no embargo on the tenant to relinquish or return the possession of the suit premises to the Defendants. This is not a case where the tenant wishes to bring the demise to an early end and that the landlord insists on the tenure of the lease being completed. None of the cases mentioned above or the precedents on the question contemplate the emergence of an easement of necessity solely on the ground that it would be more convenient or commercially advantageous to the tenant to use an alternate way to the suit premises. It is true, as has been forcefully contended by Mr. Kapur, learned Senior counsel for the Plaintiff, that there is no foundation for the Defendants' assertion that permission to interconnect Mezzanine and the First Floor was granted by the Defendants on the understanding that the tenant had no right to use the staircase after the termination of the tenancy. However, where an easement of necessity is claimed it is for the Plaintiff or claimant to establish that the demise would be useless but for the easement. It is a positive obligation on the Plaintiff. None of the material made available to the Court at this stage makes out even a prima facie case to this extent. It would be wholly inappropriate for the Court to enforce a right of way under Section 13 of the Easement Act only because it is more convenient or commercially beneficial to the tenant. It has been suggested by Mr. Kapur that the rear staircase is not usable. This statement is not correct. It has also been argued that the Plan does not show that the back staircase was part of the tenancy on the First Floor. I find it difficult to accept this argument for the reason that staircases provide access to the demised premises and need not, in all cases, become an integral part of the tenancy. It is conceivable that more than one party may simultaneously use the staircase. It is only a right of way. thereforee, even if the back staircase was not a part of the tenancy it would partake of the nature of an easement of necessity. It cannot be overlooked that when the tenancy came into existence the use of the front staircase so far as the suit premises was concerned was not possible.
14. Mr. Kapur had suggested that the Court can even fix a compensation for the user but that, in my understanding, would be a transgression of the jurisdiction enjoyed by the Court. It is for the parties to enter into parlays on this subject.
15. For these reasons I am of the view that the Plaintiff has failed to make at a prima facie case. The interim orders are recalled and the application is dismissed. Parties to bear their respective costs.