Easement of necessity must be essential for property enjoyment, and bona fide purchaser's rights cannot override prior contract plus transfer.

Odgers, J.

1. In this case water rights in respect of a piece of land which will be referred to as 19/9 are in question. This plot, together with the adjoining plot at the north 132/1 were at one time in the ownership of one person called Shankara Bhattar. On the 6th October 1916, this person sold 132/1 to the defendants under Ex. I, and on the 17th March 1917, he sold 19/9 to the plaintiff by Ex. A. Now the plaintiff alleges that the mamul practice from time immemorial is to irrigate 19/9 by water originating on 132/1, that 19/9 is a bale and that the only source of supply of water to it is that just referred to. The case is complicated by the fact that the contract for sale to the plaintiffs, which preceded Ex. A, is earlier than the transfer deed to the defendant Ex. I. The first question argued is as to whether or not this is an easement of necessity as has been found by both the lower Courts. The Munsif says that 19/9 is a bale field as admitted by the defendants and was classified as No. 1 nanja, double crop in the settlement register of the village. He also observes that two crops were being raised on the land till recently and that the spring which was alleged by the defendants to be the water source for 19/9 was not a source of irrigation for any field. Both the Courts have found, as stated, that the easement is one of necessity for enjoying 19/9 as a bale field.

2. Now as against that finding it has been urged by Mr. Sitarama Rao for the appellant that this is not sufficient. An easement of necessity does not mean an easement of convenience or something whereby your enjoyment of your property is increased but it must mean a thing without which you cannot enjoy your property at all, and he refers to the well-known case of Union Lighterage Co. v. London Graving Dock Co. [1902] 2 Ch. 557 where it was held that it was not an easement-of necessity for the owner of the dock to place the tie roads outside his boundary and within the limits of the land reserved by the previous common owner. But the Court there found that notwithstanding that, the dock was still usable as a dock. Reference is also made to Sukhdei Bibi v. Kidarnath [1911] 33 All. 467 where the English cases are summed up and their conclusions adopted and applied to the case in hand. But there it was found that the right was not absolutely necessary for the enjoyment of the respondents share of the house as another door could have been opened in order to afford access to his part of the house. I take it that it is really a question of fact from the circumstances of each case as to whether an easement of the claim is an easement of necessity or not. Both the Courts have found on the evidence that this is an easement of necessity meaning thereby, I suppose, that this field is unusable as a bale field unless this water is supplied.

3. Reference was also made to Ananta Murarrao v. Ganu Vithu A. I. R. 1921 Bom. 417 There one of the learned Judges says that no authority has been quoted on the other side for the proposition that the right to take the water would be under any easement of necessity and the learned vakil for the appellant tries to pin to the statement a general proposition that you cannot have an easement of interest in water in this country. As at present advised I cannot accede to that proposition. There is no such exception in the Act and one can well conceive circumstances as, for instance in the case in hand where such an easement may be one of necessity. Krishnamarazu v. Marraju [1905] 28 Mad. 495 only emphasizes the fact that Section 13, Indian Easements Act simply restates the English law on the point. So then it seems to me that both the lower Courts were justified under the circumstances of this case in coming to the conclusion that this was an easement of necessity.

4. This is sufficient to dispose of the second appeal, but another point has been raised and it is this. It is said that if this is not an easement of necessity under Section 1