JUDGMENT Chakravartti, J. - This appeal is on behalf of the Defendant and arises out of a suit brought by the Plaintiff for a declaration of title to the western half of a narrow lane between his house and the Defendant's and certain other incidental reliefs. The trial Court decreed the suit, but on appeal the lower Appellate Court modified the decree in certain respects. The Defendant has appealed and the Plaintiff has filed a cross-objection. The history of the matter is the following: A lady, named Swarnamoyee Devi, was the owner of several premises standing on Ananda Chandra Roy Street in the town of Dacca. By a Will, executed on the 29th January, 1913, she bequeathed a house, described as holding No. 2, to a daughter's son who is the Defendant in this case and the Appellant before me. By the same document she bequeathed another house, described as holding No. 3, to a daughter's daughter, who was the mother of the Plaintiff. A third house, described as holding No. 4, was bequeathed to another daughter's daughter, but no question arises with regard to that property. 2. The subject-matter of the dispute between the parties is a narrow strip of land lying between the two houses, namely, holding No. 2 and holding No. 3. This strip of land lies to the west of holding No. 2 and east of holding No. 3. 3. Swarnamoyee died on the 4th April, 1917, and probate of her Will was in due course taken by her executors. In 1920, the executors handed over the two houses to the respective legatees by a deed of assent. In that deed, the disputed strip of land was stated to be comprised in holding No. 2, that is to say. the house bequeathed to the Defendant. The Plaintiff or, to be more accurate, his mother, went into occupation of the holding No. 3 on the 16th February, 1920, and the Defendant went into occupation of holding No. 2 in April of the same year. It appears that some time later, the Plaintiff let out the eastern portion of his house to certain tenants and the suit out of which this appeal arises is an off-shoot of a long-drawn quarrel which broke out and has been going on between the Plaintiff's tenants and the Defendant. 4. It appears that some time later, the Plaintiff let out the eastern portion of his house to certain tenants and the suit out of which this appeal arises is an off-shoot of a long-drawn quarrel which broke out and has been going on between the Plaintiff's tenants and the Defendant. 4. It appears that during Swarnamoyee's life-time, there were only two doors in the two houses abutting on the strip of land in question. The door in the Plaintiff's house was situated in the north-eastern corner of that house, whereas the Defendant's door was situated in the north-western comer of his, the two doors almost facing each other. In 1919 or 1920, two windows were opened in the Plaintiff's building, both of which abutted on this strip of land and two corresponding windows were opened in the Defendant's building about the same time or some time later. I have omitted to mention that there was, at that time, a gate at the northernmost extremity of the strip of land, leading to the inner apartments of both the Plaintiff's and the Defendant's houses. 5. It appears that the dispute between the Plaintiff's tenants and the Defendant was submitted in the year 1933 to the arbitration of one Mr. Phanibhusan Banerjee who was a common relation of the parties. The settlement which was made was in the following form: The door in the Plaintiff's house was to be converted into a window; one of the windows was to be sealed altogether and the second window shifted a little so as not to face the corresponding window in the Defendant's house. The gate at the northernmost extremity of the narrow strip of land was to be shifted to the southernmost extremity, where the strip of land met Annada Chandra Roy Street. The terms of this settlement, it appears, were carried out and there was comparative peace till the year 1938. 6. In 1939, fresh trouble broke out. It is said that the Plaintiff's tenants began to misbehave towards the members of the Defendant's family taking advantage of the two windows in his house. To prevent this the Defendant hung some pieces of cloth from a wire so as to screen off his house and make it invisible from the Plaintiff's windows. In 1939, fresh trouble broke out. It is said that the Plaintiff's tenants began to misbehave towards the members of the Defendant's family taking advantage of the two windows in his house. To prevent this the Defendant hung some pieces of cloth from a wire so as to screen off his house and make it invisible from the Plaintiff's windows. He also did a further thing; there was no chimney to the Plaintiff's kitchen which was situated at a point lying to the north of the site of the old gate and smoke, coming out of the kitchen, was proving a nuisance to the Defendant who had a room just opposite. The Defendant affixed a tin sheet so as to close the holes through which the Plaintiff's kitchen emitted its smoke. On the provocation caused by these acts, the present suit was brought. 7. In the suit the Plaintiff claimed a decal ration of his title to the western half of the strip of land to which I have already referred. Alternatively, he prayed for a declaration of a right of passage across the strip of land and of a right to light and air through the two windows in his house. He also prayed for a mandatory injunction directing the Defendant to remove the screens hung by him in the passage as also the tin sheet affixed by him to the Plaintiff's kitchen and to remove the gate to its former position. 8. The defence was that the passage belonged to the Defendant and that the Plaintiff had no right of way nor any easement of light and air. 9. The trial Court held that the Plaintiff was not entitled to a declaration of title to a demarcated portion of the strip of land but could have a declaration of his title along with the Defendant to the whole of it. In that Court's view, the strip of land was the common passage attached to both the houses, to the use of which both parties were entitled. In that Court's view, the strip of land was the common passage attached to both the houses, to the use of which both parties were entitled. In the order passed by it, it granted the Plaintiff a declaration of his " right of user to the disputed gali and right of light and air through the windows ' and granted a mandatory injunction directing the Defendant " to remove the pardahs obstructing the passage of air and light through the widows, also to remove the nailed up tin-sheet from the outer side of the eastern wall of the Plaintiff's kitchen and also to remove the gate to its original position." Lastly, a permanent injunction was granted against the Defendant, restraining him from "obstructing the Plaintiff's right of user of the gali and of the passage of air and light " and " damaging the outer side of the Plaintiff's eastern wall by affixing any nail or tin or any substance of a similar nature." 10. On appeal, the lower Appellate Court held that the title to the strip of land lay with the Defendant, but it held at the same time that the Plaintiff had a right of passage derived from an implied grant. With regard to the easement of light and air the learned Judge did not discuss the matter, nor come to any finding, but he observed that since the Defendant would be bound not to put any obstruction in the passage in which he was declaring the Plaintiff's right of way, the latter would naturally enjoy light and air through his windows, unhampered by the Defendant. Nor does the learned Judge appear to discuss the matter of the tin-sheet affixed to the kitchen. In the end, however, he made a decree, dismissing the appeal and affirming the judgment and decree of the first Court. 11. It will appear from what I have stated above that the learned Judge's decree is not in accordance with his judgment. While expressly reversing the finding as to title, holding that the question of easement of light and air was immaterial and finding nothing as to the tin-sheet affixed to the kitchen, the learned Judge confirmed the decree of the trial Court in toto. 12. In the present appeal on behalf of the Defendant, Mr. While expressly reversing the finding as to title, holding that the question of easement of light and air was immaterial and finding nothing as to the tin-sheet affixed to the kitchen, the learned Judge confirmed the decree of the trial Court in toto. 12. In the present appeal on behalf of the Defendant, Mr. Sen Gupta contended that the learned Judge was in error in holding that the Plaintiff had a right of passage by an implied grant and that he was further in error in holding that because the Plaintiff had a right of passage, he had necessarily an easement right of light and air as well. 13. In the cross-objection it was contended that in the absence of any specific directions in the Will, it should have been held that the intervening space between the two holdings had been conveyed in equal proportions to the two legatees and each had title on his side upto the middle. In other words, the rule of medium filum should be applied. 14. The cross objection may be disposed at once. In support of it Mr. Das referred to the case of Mobaruck Shah v. Toofany I. L. R. (1878) Cal. 206. but I do not think that case is of any assistance to him. There the owners of two neighbouring fields were held to be entitled to equal halves of an intervening space of land which had previously been used as a public road but with regard to which there was no evidence of anybody's title. It appears from the judgment that their Lordships thought that in such a case a rule of a somewhat arbitrary character could best meet the situation. The principle laid down in that case, if it is a principle at all, cannot apply where one has to interpret a grant which says nothing as to a certain property. If the Will could be interpreted as conveying the strip of land to both the legatees without specifying their shares, then I think the rule of equal proportions could justly be applied. In the present case, where it is possible from other evidence to come to a finding that the strip of land was attached to the conveyance of one house rather than the other, as the learned Judge has found, I am of opinion that the rule of medium filum can have no application. In the present case, where it is possible from other evidence to come to a finding that the strip of land was attached to the conveyance of one house rather than the other, as the learned Judge has found, I am of opinion that the rule of medium filum can have no application. The cross-objection must therefore fail. 15. Coming now to the appeal, Mr. Sen Gupta, in support of his first contention referred to a passage in Gale on Easements which had been quoted with approval by a Division Bench of this Court in the case of Dakshina Ranjan Chowdhury v. Surendra Lal Das Gupta (1935) 39 C. W. N. 1902 In the passage relied upon, it is stated that a right of way is not generally classed among quasi-easements of an apparent and continuous character which go to the grantee of a tenement, when such tenement is severed from another. To this rule an exception is stated in the form that when two tenements are severed, and at the time of severance a formed road exists over one tenement for the use of the other, such a formed road, but only a formed road, can pass by an implied grant as being necessary for the reasonable enjoyment of the tenement severed. Mr. Sen Gupta contended that this principle would apply in the present case and there being no formed road on or across the strip of land in question, the Plaintiff could not have a right of passage over it by an implied grant. 16. I do not think that the passage in Gale, expressed in the broad form above stated, is applicable to all kinds of cases where one tenement is severed from another. The passage is intended to represent the result of a wide variety of case-law and may be correct as representing the greatest common measure of propositions laid down in them; but if one looks at the decisions a little more closely, one finds that a distinction has been made in the case of transfers of a portion of a house to which some amenity such as a gate or a passage was attached. To such cases, it would appear, the rule of a formed road would not apply, but the principle to be applied is to see whether the amenity concerned was being enjoyed by the owner at the time of the grant as an incident of the house as it then stood and whether it was necessary for a reasonable and convenient enjoyment of the premises. Illustrations of this rule will be found in the case of Morris v. Edgington [1810] 3 Taunt 24. and Hincliff v. Kinnoul [1838] 5 Bing. (N. C.) 1.. But more directly in point are the observations of Chitty, J., in the case of Bayley v. G. W. Ry. 26 Ch. D. 441., where the learned Judge seems to be thinking of a case of exactly the same nature as the case before me and to hold that in such a case the right of passage would pass to the grantee of the severed tenement on the same principle as easements of light do, although a right of passage might not be a continuous easement in the strict sense of the term, it is true that the observations made by the learned Judge are in the nature of an obiter dictum but they seem to embody a sound principle which has not been dissented from in any subsequent case. The principle underlying the observation of the learned Judge seems to be that the grant must be interpreted as a grant of the house, as it stands, together with all the conveniences of which the owner was in enjoyment at the time of the grant, irrespective of whether the convenience was an absolute necessity or whether a substitute could be found for it. 17. There seems to be another reason why the principle relied upon by Mr. Sen Gupta is inapplicable in the present case. The cases upon which the principle stated in Gale is founded appear to be cases where the dispute was between the grantee and the grantor. In the present case, the dispute is between the two grantees as respects what was granted to them respectively by and under a common instrument. In such a case, the governing question seems to me to be what the grantor's intention was and not so much what would pass as a matter of law, when the grantor retained a part of a tenement and transferred another part. In such a case, the governing question seems to me to be what the grantor's intention was and not so much what would pass as a matter of law, when the grantor retained a part of a tenement and transferred another part. But even assuming that the principle stated in Gale upon which Mr. Sen Gupta relies is applicable to the case before me, I do not think it can be said that there is in the present case no formed road. The requirement as to the road being a formed one obviously means that the claimant could not have a rambling right of way over the entire tenement but had to point, if he wanted to succeed, to a well-defined track, the character of which would be such as to be sufficient evidence that the user of the passage had been substantial and of a long duration. It is clear to my mind that this test is relevant only in cases where a road is formed over open land. But, in any event, it cannot be said that the requirement of a formed road is not present when a strip of land lies between two houses and is quite obviously designed to serve as a passage leading to both. Of such a passage it is not required that it should form itself into a road by user, because it is made as and meant to be a road. I would, therefore, hole that even on the principle relied upon by Mr. Sen Gupta, the right of passage along the strip of land in question could and did pass to the Plaintiff by an implied grant. 18. That would follow from the manner in which the house was enjoyed at the time of the original owner. She owned both the houses. She had opened a door at the northern end of both and in between the two houses lay this passage. Surely, it Could not be said that this passage was intended to serve one of the houses only and not intended to serve the other one in the same manner. If the test be that both the houses passed to the respective legatees with the same conveniences as enjoyed by Swarnamoyee during her life-time, both passed at least with the right of passage along the pathway lying between them. If the test be that both the houses passed to the respective legatees with the same conveniences as enjoyed by Swarnamoyee during her life-time, both passed at least with the right of passage along the pathway lying between them. But, on the finding I have upheld, to the grantee of one of the houses was conveyed the title to the land underneath the path, but it was the land, as subject to the service of the other house as a passage. What passed to the other grantee was necessarily the right of passage only, but at the same time such right was not subtracted from the house bequeathed to him. 19. The first contention of Mr. Sen Gupta cannot, in my opinion, be accepted. 20. With regard to his second contention, it seems to me that there has been some misconception. The learned Judge has not held that because the Plaintiff had a right of passage, he had necessarily an easement right of light and air as well. What he had said is that since he was declaring in the Plaintiff's favour a right of way and since the consequence of this would be that the Defendant would not be able to throw any obstruction across the passage, enjoyment of unobstructed light and air through the windows would necessarily be ensured. The learned Judge did not make a declaration of an easement right of light and air and I am of opinion that the second ground taken by Mr. Sen Gupta proceeds upon a misreading of the judgment. 21. But this ground has to be taken into consideration when examining the actual decree passed by the learned Judge where a declaration of an easement impliedly occurs. As I have stated, his actual decree is one of complete confirmation of the trial Court's decree which contained a declaration of an easement right with respect to both windows. It is quite clear that in so confirming the trial Court's decree, the learned Judge was entirely wrong. The decree must, therefore, be suitably modified. 22. The learned Judge having merely confirmed the trial Court's decree, reference must be made to that decree in order to determine what the modification must be. It appears that the trial Court made a declaration of the Plaintiff's right of user to the disputed gali. The decree must, therefore, be suitably modified. 22. The learned Judge having merely confirmed the trial Court's decree, reference must be made to that decree in order to determine what the modification must be. It appears that the trial Court made a declaration of the Plaintiff's right of user to the disputed gali. This general language is obviously incorrect, for it must be made clear that the Plaintiff is entitled only to a right of way. As regards the declaration of an easement right of light and air through the windows, it is clear that the Plaintiff is entitled to no such right so far as the window opened in 1919 or 1920 is concerned. It was not in existence during Swamamoyee's time. He is entitled to an casement right of light and air only as respects what was once a door and is now a window, that is to say, the aperture at the northern end of his building. No objection was taken to any other part of the trial Court's decree, except to the direction as regards the removal of the gate to its original position. Mr. Sen Gupta submitted that since the Plaintiff had not yet opened a door in his building, he had no immediate need to use the passage and that, therefore, the direction to remove the gate should be made a conditional one, that is to say, the Defendant should be directed to remove the gate to its original position, only if and when the Plaintiff opened a door in his building. Mr. Das on behalf of the Plaintiff raised no objection to this suggestion and it will, therefore, be given effect to. 23. What I have stated so far has made it clear that a considerable modification of the trial Court's decree will be necessary in order to bring it into order. I, therefore, think that instead of working out the modifications into that decree, it will be better to substitute a self-contained decree passed in this appeal. 24. In the result, the appeal is allowed in part and the judgments and decrees of both the Courts below are modified, the judgments in the manner above indicated and the decrees so as to convert them into a decree in the following terms: The Plaintiff's claim as regards a declaration of title to the western half of the disputed strip of land is dismissed. It is declared that he has and will have a right of passage across the disputed strip of land as appertaining to holding No. 3 and also an easement right of light and air so far as the original door, now converted into a window, is concerned. There will be a mandatory injunction on the Defendant directing him to remove the purdahs which he has suspended in or over the disputed passage to remove the nailed-up tin sheet from the outer side of the eastern wall of the Plaintiff's kitchen, and also to remove the gate to its original position to the northern end of the gali below the arch, the first two within 30 days from to-day and the last if and when the Plaintiff opens a door on the eastern side of his building and within 15 days thereof. The Defendant will further be restrained by a permanent injunction from causing or throwing any obstruction whatever to or in the disputed passage at any time and from damaging the outer side of the Plaintiff's eastern wall by fixing any nail or tin-piece or any substance of a similar nature. In the case of the Defendant's failure to remove the nailed-up tin sheet and the purdahs within thirty days from to-day, the Plaintiff will be entitled to remove them himself or by execution and, similarly, in default of the Defendant's removing the gate to its original position within fifteen days of the Plaintiff's opening a door, the Plaintiff will be entitled to have the gate removed by execution and in each case, to recover the costs thereof from the Defendant. A self-contained decree will be drawn up by this Court in the foregoing terms. The appeal is allowed in part in the manner above indicated and the cross-objection is dismissed. Each party will bear its own costs throughout.