A right to use a passage conferred by a partition deed among the parties is not a license and is not revocable under Section 60 of the Indian Easements Act, 1882.

The Second Appeal has been preferred by the plaintiffs.

2. The plaintiffs filed the suit for declaration that they are entitled to use the B schedule passage without obstruction or blocking the passage by the defendants in any manner and for an injunction restraining the defendants, their men or their agents etc. from preventing the use of the passage.

3. The case of the plaintiffs is that under registered sale deed dated 21-11-1975 they purchased vacant site from V. C. Govinda Doss and two others for valuable consideration. They put up construction and by virtue of registered partition deed dated 9-4-1975, the vacant sites were divided by four parts into ABCD. They left the passage. Though the passage is conveyed to C and D yet, the other two persons have been given permission to use passage. The partition deed mentions that the allottees A and B and their successors in interest are also entitled to use the common passage. Therefore the plaintiffs are entitled to use the passage. But the defendants have started preventing and obstructing the use of the passage. Hence the suit.

4. The defendants contended that the passage was conveyed only to the owners of the C and D as per the partition deed dated 21-11-1975 and the allottees of other shares i.e., A and B are not entitled to use the passage. They also contended that the plaintiffs have been access to the road directly from their property. There is no necessity to use the passage. There is no record to show that any permission or licence was granted to the plaintiffs. The trial Court after considering the evidences, has come to the conclusion that the plaintiffs are entitled to use the B schedule passage. It is also found that intention of the parties to the partition deed has been very clearly stated in the recital and such intention could not be brushed aside.

5. The Appellate Court has reversed the finding and judgment and decree of the trial Court. According to the appellate Court the clause contained in the partition deed with respect to the passage amounts to the licence and since it is not the licence coming under the definition to S. 60(a) of the Indian Easements Act, the plaintiffs are not entitled to claim right over the passage.

6. The learned counsel for the appellants contended that the lower Appellate Court has thoroughly gone wrong in assuming that the plaintiffs were claiming the right as an easement. The learned counsel for the respondents on the other hand contended that there is no plea of licence and there is no necessity also for using the passage. Further the licence can be cancelled since the plaintiffs have committed nuisance in the passage.

7. The lower Appellate Court has found that the right conferred under the partition deed does not come under S. 60(a) of the Indian Easements Act. According to the Appellate Court, unless the grant of licence and the transfer of property relate to the same property, it is not possible to hold that the licence granted is coupled with the transfer of property within the meaning of S. 60(a) of the Act. The learned appellate Judge has thoroughly gone wrong. The plaintiffs have not claimed the right to use the passage as a licence at all. Further from the evidence of Ex. A. 4, the partition deed there is no question of licence. The licence is defined under S. 52 of the Indian Easements Act as follows :

"Where a person grants to another, or to a defined number of other persons, a right to do or continue to do, in or upon the immovable property of the grantor something which would, in the absence of such right, be unlawful, and such right does not not amount to an easement or an interest in the property, the right is called a licence."

First of all to attract the above Section the person who grants the licence must be the owner of the property. The other person who gets the permission must be a sranger or had no right in the property. But here in this case, the parties have entered into a partition agreement dividing