JUDGMENT

Jagmohan Lal, J. - This second appeal has been filed by a plaintiff whose suit for injunction has been dismissed by the courts below. The brief facts of the case were that one Wasi Hasan Mirza was the owner of a piece of land of which a lease for 99 years was granted by him to the plaintiff-appellant in the year 1947 by means of a registered document for building purposes. To the north of the land so demised, there was some other land belonging to the lessor which was described in the lease deed as Rasta belonging to the lessor. Subsequently the plaintiff constructed a factory building on the land leased to him. To the east of this land there was a public road. The plaintiff wanted to keep the gate of his factory towards east opening on that public road so that his vehicles including trucks could enter his factory through that gate. But that would have meant substantial wastage of the land out of the land demised to him by Wasi Hasan Mirza by keeping it as open land for the passage of trucks. In order to avoid that wastage of land the plaintiff requested Wasi Hasan Mirza to grant him a right of passage over the land lying to the north of the demised land which was already in use of the lessor as a passage so that the plaintiff could open a gate in his factory in the northern side and use this passage. Thus the trucks and other vehicles would enter this passage from the public road in the eastern side and from this passage they could have access into his factory through the northern door. Wasi Hasan Mirza agreed to grant this right of passage to the plaintiff on payment of Rs. 75/- by him vide his letter dated 6th May, 1953 Ext. 2. The plaintiff paid Rs. 75/- to Wasi Hasan Mirza through the receipt dated 9-5-1953 Ext. 3. Thereafter the plaintiff opened a door in the northern side in his factory building and through this door his vehicles had an access to his factory by passing over the passage land of Wasi Hasan Mirza in the north. Wasi Hasan Mirza then transferred this land in the north of the plaintiff factory on which this right of passage was granted to him, to the defendant-respondent for Rs. 100/- by means of a sale deed dated 29-6-1954 Ext. A-l. Some time after that the defendant-respondent started interfering with the plaintiffs right of passage over this land with the result that the plaintiff filed a suit for injunction against him claiming a right of passage. Originally the plaintiff had set up a case of licence granted by Wasi Hasan Mirza under the document Ext. 2. Subsequently a case of easement granted under Sec. 8, Easements Act was set up.

2. The claim of the plaintiff on both these grounds was contested by the defendant-respondent. Before the amendment of the plaint by means of which the alternative case of easement was set up, the trial court framed the following two material issues -

1. Whether plaintiff had a right of passage and to pass his trucks through the land in suit as alleged.

2. Whether the defendant is not bound by the right of the plaintiff.

3. The trial court held the documents Exts. 2 and 3 to have been duly executed by Wasi Hasan Mirza who was dead at that time. Relying on those documents and other evidence the learned Munsif held that the plaintiff has a right of passage and to pass his trucks through the land in dispute as claimed by him. But under Issue No. 2 he held that since this right of passage was claimed by the plaintiff only as licenses the defendant as transferee of the servient tenement was not bound by this licence under Sec. 58 of the Easements Act. The suit was accordingly dismissed.

4. The plaintiff filed an appeal against that decision. The lower appellate court allowed the plaintiff to amend the plaint and set up a case of an easement imposed by the owner of the servient tenement under Sec. 8, and thereafter framed the following issues which were remitted to the trial court for recording findings thereon :-

1. Whether the plaintiff has a right of easement to pass his tr