The central legal point established in the judgment is the entitlement of the plaintiffs to exercise the right of way and discharge of water through the defendant's property based on the transfer of easement rights under the Indian Easements Act and the inapplicability of Section 40 of the Transfer of Property Act.

( 1 ) THIS appeal by the defendants is directed against the judgment and decree of the lower Appellate Court by which the suit of the plaintiffs has been decreed acceding to their claim of right of way through the Oni and Angala of defendants' house and that of discharging rain and drain waters through the suit drain (kaluve ).

( 2 ) THE entire suit property formerly belonged to the family of the contesting parties which was purchased by one Kori Halappa who subsequently sold the same to Uduchanda Halappa. Defendants purchased half portion of the plaint schedule property bearing No. 30 from the said Halappa under a registered sale deed dated 10-5-1961 (Exhibit P-2) and the other half portion bearing No. 29 was retained by the vendor. Subsequently the said Halappa sold the other portion of the house bearing No. 30 to the plaintiffs under a registered deed dated 21-4-1977 (Exhibit P-1 ). Admittedly the defendants had executed a registered document Exhibit P-3 dated 10-5-1961 contemporaneously with the execution of the sale deed in their favour wherein they granted and conceded a right of way and that of discharge of water through the property purchased by them in favour of their vendor Halappa obviously for securing beneficial enjoyment of the other property held by their vendor. The said right so conceded was to be exercised over the Oni passing through the Angala as shown in the plaint sketch and the drain described therein.

( 3 ) IT has been found by the Courts below that subsequent to purchase of property No. 29 by the plaintiffs, they had been using the said Oni passing through the Angala for carrying their cattle and other purposes, within the knowledge of the defendants. But they abruptly started obstructing to the exercise of that right which led to the filing of the present suit in 1981.

( 4 ) THE Trial Court keeping in view the pleadings, framed the following two material issues for determination:" (1) Whether the plaintiffs prove that they have a right to use the Oni and the Angala as shown in the suit sketch? (2) Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed for?"the said issues were answered in the negative by the Trial court by holding that the right of way conceded under Exhibit p-3 was a personal right of the vendor Halappa, and as such it was extinguished on sale of the property in favour of the plaintiffs. It was further held that since the plaintiffs have not based their relief by raising the plea expressly in terms of the Indian easements Act, 1882 (hereinafter referred as 'the Act') claiming their right in the nature of easement, it cannot be adjudicated.

( 5 ) THE lower Appellate Court reversed the judgment and decree of the Trial Court keeping in view the provisions of section 40 of the Transfer of Property Act, 1882 and also by accepting the plea pertaining to easement of necessity. The learned Counsel for the defendants has assailed the judgment of the lower Appellate Court by submitting that there being no foundation in the plaint pertaining to the plea of easement of necessity, the Court below could not have granted any relief based thereon. His further submission is that the document exhibit P-3 merely confers a personal right on the parties which do not stand transferred to the plaintiffs in law.

( 6 ) ON the other hand, learned Counsel for the plaintiffs by relying on the averments in the plaint and the relevant provisions contained under the Act, supported the reasonings contained in the impugned order.

( 7 ) THE substantial questions of law falling for my consideration, as reformulated, are as follows: (1) What is the nature of the right reserved and conceded to Sri Halappa the vendor of the contesting parties under the documents Exhibits P-2 and P-3? (2) Whether the right possessed by the said Halappa was a right personal to him or was it annexed to the property bearing No. 29 retained by him and as such exercisable by every