An easement apparent, continuous, and necessary for the enjoyment of the dominant tenement passes to the transferee upon the transfer of the property, unless a different intention is expressed or necessarily implied.

1. The plaintiffs are the appellants. The suit is for a declaration of the plaintiffs right to take water to the second schedule land comprised in S. No. 612/1A measuring 1 acre 47 cents and 613/measuring 2 acres 95 cents from the first schedule land which is a tank measuring 9 acres 10 cents in S. No. 612/1A, 616/2 and 718/2 and also for an injunction against the defendant restraining him from culling the bund of the tank and allowing the lands of the plaintiffs to be inundated.

2. The case of the plaintiffs is that on 9th January 1965 under Ex. A.2 the defendant sold the second schedule to the plaint to the plaintiffs. Prior to the sale deed the defendant is the owner of both the first and the second schedules. It is clear from Ex. A.6 which is of the year 1907, the second schedule sold to the plaintiffs came in the ayacut of the first schedule. This is fortified by the village plan, Ex. A.1 also. Thus the plaintiffs claim as of right that they are entitled to irrigate their lands from the first schedule tank water. Though this right is not included in Ex. A.2, the plaintiffs claim that they get this right by virtue of the easementary right and also under S. 8 of the Transfer of Property Act. Since the defendant attempted to cut the bund, the plaintiffs fearing that their lands will be inundated by the water of the tank have come forward with the above suit.

3. The defendant contended that the plaintiffs cannot have any manner of right in the first plaint schedule property and that since a portion of the tank bed is being used for cultivation, the tank has ceased to be a tank as such.

4. The trial Court after elaborately discussing the evidence on record came to the conclusion that the second schedule land is included in the ayacut of the first schedule tank, that the said ayacut cannot be changed, that mere cultivation on a portion of the tank will not put an end to the character of the tank as such, that the bunds were cut by the defendant; and as such there must be an injunction as prayed for by the plaintiffs. Thus the trial Court decreed the suit as prayed for. Aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal to the Sub-Court, Tirunelveli. The lower appellate Court, holding that there was no necessity as such for the plaintiffs to take water from the plaint first schedule tank, allowed the appeal, and thereby dismissed the suit filed by the plaintiffs herein. Aggrieved by the judgment and decree of the lower appellate Court, the plaintiffs have preferred the above second appeal.

5. Mr. Ratnam, learned counsel appearing for the appellants pointed out the mistakes committed by the lower appellate Court as regards S. 13(b) of the Indian Easements Act and also pointed out that the reasoning of the lower appellate Court is not in accordance with the various decisions cited by him.

6. Thirumathi Vimala, learned counsel appearing for the respondent submitted that there must be necessity also for the purpose of taking the water from the first schedule tank and in as much as the plaintiffs also are irrigating their lands through a well, it is not necessary to take water from the tank. She submits trial in as much as there is no necessity for the plaintiffs to take water from the lank, S. 13(b) of the Indian Easements Act is not applicable. She tried to distinguish the case cited by Mr. Ratnam on this aspect of the matter. She also submitted that on a reading of Ex. A.2, it has to be construed that the defendant never intended to give any right to take water from the first schedule tank.

7. I have been taken through the judgments of the Courts below and also the evidence on record. It is unnecessary for me to elaborately deal with the facts of the case. Both the Courts below have concurrently found that the right enjoyed by the plaintiffs by taking the water from the plaint first schedule tank is apparent and continuous. The evidence on record both on the side of the plaintiffs