Distinction between acquisition of easement by presumed grant or operation of law on one hand and by implied grant on the other
law of easement both in India and England draws a distinction between acquisition of easement by presumed grant or operation of law on one hand and by implied grant on the other. In the case of presumed grant, the right of way claimed must be an absolute necessity of the enjoyment of the dominant tenement and the law presumes such a grant or the grant is created by the operation of law in the event of the required conditions being fulfilled. In the case of an implied grant the intention of the grantor and the circumstances prevailing at the time of the grant are material. In support of this contention, Mr. Mukherjee has referred to law relating to Easement in British India by Peacock (Tagore Law Lectures-- 1904 Edition) at page
279. It has been observed by the learned author to the following effect : --
"In the former case the grant is an implied grant arising out the intention of the grantor and the words used by him considered with reference to the state of circumstances existing at the time of grant, whereas in the latter case the grant operates not by virtue of any word used by the grantor, but by virtue of a legal presumption arising on the ground of necessity, whether absolute, or of the qualified character to be found in what are called quasi-easements.
Calcutta High Court
Sm. Pravabati Roy And Anr. vs Dwijendra Lal Sengupta And Anr. on 22 July, 1986
Equivalent citations: AIR 1987 Cal 97, 91 CWN 441
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