N. G. SHELAT, J. ( 1 ) THAT leaves two points to be considered in this appeal. The first is as to whether the plaintiffs are entitled to have a right of passage through the southern door F in the khadki either under the terms of the agreement Ex. A or as an easement of necessity as contemplated under sec. 13 of the Indian Easements Act. If so whether the plaintiffs have a right to claim that passage through the chowk and osri fallen to the share of the defendant or that the defendant would be entitled to set out any other convenient and reasonable passage for enabling the persons living in that house to go through the door F as also for going to the latrine on the south-west corner on the ota in front thereof. The appeal is mainly confined to this part of the case as the learned Assistant Judge has rejected the prayer in that regard. The other point arises out of the cross-objections filed by the defendant and that raises a question as to whether the plaintiffs are entitled to discharge the rain water from the terrace through the mori E in the south as an easement of necessity contemplated under sec. 13 of the Act. ( 2 ) BEFORE we actually go to the first point an attempt was made by Mr. Chhatrapati the learned advocate for the appellant to raise a contention that the plaintiff No. 1 the mother of Kiritkumar. the minor plaintiff No. 2 had no legal authority to refer the disputes relating to the minor sons share in the properties to arbitration and that since such a reference is bad in law any such agreement which according to him was virtually an award given by the arbitration was not binding on the minor plaintiff. Now apart from the fact that there has been neither any reference nor any award as such so as to consider any such question sought to be raised by Mr. Chhatrapati at no stage any such point was raised by him either in the trial Court or in the first appellate Court. Nor has it been raised in the memo of appeal filed in this Court. The agreement is produced by the plaintiffs themselves in this Court and it is exhibited at their instance. Chhatrapati at no stage any such point was raised by him either in the trial Court or in the first appellate Court. Nor has it been raised in the memo of appeal filed in this Court. The agreement is produced by the plaintiffs themselves in this Court and it is exhibited at their instance. Now it shows that it is duly signed by the parties-in the suit and not by the arbitrators. Therefore much though some persons may have intervened for settling their disputes it cannot necessarily be said that there was any reference to the arbitrators for decision of their disputes as contemplated under the Indian Arbitration Act. There is therefore no justification whatever to allow any such point to be raised at such a late stage when no point was raised before and no issue was sought for to enable the parties to lead evidence in relation thereto. ( 3 ) MR. Chhatrapatis first contention is that the right of way is presumed to be joint and that way taken to be reserved for the necessary enjoyment of the plaintiffs house when the partition took place in 1952 and that unless it is shown otherwise that right cannot be defeated both under the Hindu Law as also under the provisions of the Indian Easements Act. He then said that under Hindu Law the right of way is indivisible and it cannot be partitioned and since it is not shown that by the agreement Ex. A it has been taken away contended Mr. Chhatrapati his right would be through the portion of the chowk and osri and then onwards to the door F in the south as that was the passage which they used to enjoy before along with the defendant. In support thereof he invited reference to a decision in the case of Nathubhai Dhirajram v. Bai Hansgavri I. L. R. 36 Bombay 379 where it was held that under Hindu Law in the absence of anything to show that at a partition a passage was allotted to either one party or the other exclusively the presumption is that it continued joint and undivided even after the partition. That presumption must be rebutted by clear proof by the party who alleges that the passage was not reserved as joint but was divided and allotted to him exclusively as his share. That presumption must be rebutted by clear proof by the party who alleges that the passage was not reserved as joint but was divided and allotted to him exclusively as his share. Then he laid stress on the observations made therein as below:according to the Mitakshara and the Vyavahara Mayukha rights of way and rights to wells and water belonging to a joint family are indivisible: and if there is no evidence that at the partition of the family estate they were divided the law will hold that they continued to retain the character of indivisibility attached to them by law having regard to the nature of the rights in question. On the strength of this decision he urged that this entire property was a joint family property; that the persons residing in that house had a defined passage from the main door F in the Khadki by going through the chowk and osri now fallen to the share of the defendant that it has been so since last 100 years that they have also an undisputed right to go from that very door F to the latrine which is situated on the souther-west corner on the ota shown in the sketch Ex. 50 and that in the partition effected between the parties in 1952 no such right of passage is taken away. In those circumstances he urged that the presumption is that it continued to be joint and undivided even after partition and the defendant has failed to show that any other passage is given to the plaintiffs house. Another case referred to by him was of Shantaram Balkrishna v. Waman Gopal Wadekar and another A. I. R. 1923 Bombay 85 where it was held that both under the Mitakshara and the Vyavahara Mayukha the land reserved as common passage at the time of the previous partition between the parties is not divisible subsequently. On the other hand what was urged by Mr. Zaveri was that there arises no question of partitioning the right of passage as such. According to him there was no such right of easement as such but that the entire property was joint and was used by all the members In the family. On the other hand what was urged by Mr. Zaveri was that there arises no question of partitioning the right of passage as such. According to him there was no such right of easement as such but that the entire property was joint and was used by all the members In the family. The partition was not of any passage but of the joint property which Includes every part of the property and not any specified part of passage and therefore the principles of Hindu Law set out In those two decisions cannot apply. Now it is true that what is done by the agreement between the parties is the partition of the entire property and does not include any specified passage as such and by that the southern portion of the house has been allotted to the defendent. He is given a right to put a wall in between with no doubt a restriction that he shall not put up the wall till the plaintiff No. 2 attains majority. The contention of Mr. Zaveri for the respondent is that by reason of such a term in the agreement the plaintiffs right of passage through his chowk and osri and then onwards from the door F in the khadki is impliedly taken away inasmuch as he has a right to put up a wall which would obviously close his passage. Taking this part of the contention of Mr. Zaveri it appears clear from the recitals of the agreement Ex. A that either side is given a right to put up a partition wall on the ground floor with a restriction that the defendant Cannot put up the same till such period that plaintiff No. 2 attained majority. After plaintiff No. 2 attains majority the defendant would be justified in putting up a partition wall under the terms of the agreement. But it is no where said in the agreement that the partition wall shall be all blind so much so that no door would be kept for passage of the persons living in the plaintiffs house. Nor does 9t say that the plaintiffs shall then have to make some other arrangement for their-passage. It does not say that they shall have no right to go through the main door in the khadki of the original house. Nor does 9t say that the plaintiffs shall then have to make some other arrangement for their-passage. It does not say that they shall have no right to go through the main door in the khadki of the original house. We find no arrangement made for the plaintiffs passage-say by compensating him for his having to incur expenses for opening a door in the north. At the same time we cannot lose sight of an important fact that the latrine on the ota is kept joint and the plaintiffs have thus a right to use it. The way to go to the latrine is through the door F only. No other way is suggested for it. Thus the right to put up a partition wall on the ground floor does not in any way mean that the right of passage through door F in the khadki is taken away either expressly or even by implication. Such an important right of the house on partition can only be taken away by express words and only by implication provided it leads to that conclusion alone. The terms of the agreement only lead us to think that the matter was kept open after plaintiff No. 2 attained majority. In fact. on a consideration of the oral evidence it has been found by the learned Assistant Judge that there was no talk about other matters excepting that of the defendant having to keep open the chowk and osri till plaintiff No. 2 attained majority. In other words from the evidence of those witnesses who settled their disputes as a result of which the agreement Ex. A was entered into by the parties It appears that there was no such talk about other matters namely with regard to the right of way after the wall is allowed to be put or about discharging of the rain water and of taking light and air at the time of partition. In our view therefore the Courts below were perfectly right when they held that nothing-one way or the other-was agreed upon by the parties except what has been stated in the agreement itself. In our view therefore the Courts below were perfectly right when they held that nothing-one way or the other-was agreed upon by the parties except what has been stated in the agreement itself. The agreement is completely silent as to where and in what manner the Plaintiffs would have egress and ingress as also for discharge of rain water from their house in the event of the defendant putting up a partition wall in the chowk and osri of the house. ( 4 ) WHEN nothing of the kind was agreed to between the parties and that way entered into an agreement Ex. A it is clear that any such claim either of a right of passage or for discharge of rain water would stand governed by the provisions contained in the Indian Easements Act. Now the provisions of the Indian Easements Act recognise no personal law of the parties for the reason that they affect the rights attached to the property of persons of any community in the country and when we have definite provisions touching the rights claimed by the plaintiffs In regard to their property it can hardly be proper to invoke or even apply any such considerations arising from the personal law of the parties such as Hindu Law in the present case Apart from that there existed no right of passage as such exercised by one over the other and that all the members of the family lived in that house having an ingress and egress through the door in the sought. This is not a case of any definite or marked passage out of the chowk belonging to the other and there was therefore hardly any question for the division of that right of passage. Any such presumption sought to be raised by Mr. Chhatrapati obviously would have no justification in the present case. ( 5 ) THE present case would thus stand governed by the provisions contained in sec. 13 of the Indian Easements Act. Mr. Chhatrapati the learned advocate for the appellants urged that the rights claimed by the plaintiffs in this case would fall under clause (f) of sec. 13 of the Act and that they are entitled to the passage for their house as it was used before viz. through the defendants chowk and osri anti then onwards through the main door of the house shown in sketch Ex. 50. 13 of the Act and that they are entitled to the passage for their house as it was used before viz. through the defendants chowk and osri anti then onwards through the main door of the house shown in sketch Ex. 50. Similarly the rain water of their house has got to he allowed to go through the mori `e in the chowk. In the alternative the same can fall under clause (c) thereof and the rights have to be safeguarded on ground of necessity as otherwise it would not be possible to en joy the share of the property fallen to him. We may set out these two clauses (e) and (f) of sec. 13 of the Indian Easements Act. They run thus:-WHERE a partition is made of the joint property of several persons- (e) If an easement over the share of one of them is necessary for enjoying the share of another of them the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect he shall unless a different intention is expressed or necessarily implied be entitled to such easement. The easements mentioned in this section clauses (a) (c) and (e) are called easements of necessity. Now it is pointed out by Mr. Zaveri that clause (f) of sec. 13 would not govern for the reason that the right of passage is not an easement which can be said to be continuous though no doubt apparent and therefore it does not fulfill the very first condition contemplated therein. Before clause (f) could be applied the first condition to be fulfilled is about the easement being both apparent and continuous. What easements are apparent and continuous are defined in sec. 5 of the Act. It runs thus :5 Easements are either continuous or discontinuous apparent or non-apparent. A continuous easement is one whose enjoyment is or may be continual without the act of mana discontinuous easement is one that needs the act of man for its enjoyment. An apparent easement is one the existence of which is shown by some permanent sign which upon careful inspection by a competent person would be visible to him. A non-apparent easement is one that has no such sign. An apparent easement is one the existence of which is shown by some permanent sign which upon careful inspection by a competent person would be visible to him. A non-apparent easement is one that has no such sign. Illustration (b) thereto says that a right of way annexed to As house over Bs land. This is a discontinuous easement. Apart from authority on a plain reading of sec. 5 together with illustration (b) given therebelow it becomes clear that a right of way while no doubt is an apparent easement it is not a continuous one for that depends upon the enjoyment of a continual character by the act of man. The illustration (b) calls it a right of way as a discontinuous easement and thus not a continuous one. Now before clause (f) of sec. 13 were to apply to any such right it must fulfill four conditions contemplated therein. They are: (1) that a joint property is partitioned between the parties; (2) the claim on partition is in respect of an easement which is apparent and continuous; (3) such an easement is necessary for enjoying the share of the other as it was enjoyed when the partition took effect; and (4) unless a different intention is expressed or necessarily implied. It is only when all the four conditions are fulfilled that the plaintiffs would be entitled to claim such a right of easement on partition of the joint property. The right of way as already pointed out hereabove is not a continuous easement as defined in sec. 5 of the Act read with the illustration (b) therebelow. It is thus clear that on that account the plaintiffs cannot claim that right of easement viz. for their passage through door F in the khadki under clause (f) of sec. 13 of the Act. We find support from the decision in the case of Malkajappa Chanvirappa Hullar v. Rachappa Panchhappa Guledgud 44 Bom. L R. 673. We may observe here that it would be only if the case were to fall under clause (f) of sec. 13 of the Act that the plaintiffs would be entitled to such a right of easement as it was enjoyed before when the partition took place. L R. 673. We may observe here that it would be only if the case were to fall under clause (f) of sec. 13 of the Act that the plaintiffs would be entitled to such a right of easement as it was enjoyed before when the partition took place. In other words it is only then that they would be justified in Claiming a right of passage through the defendants chowk and osri and then onwards through the door falling in the khadki in the south. ( 6 ) AN attempt was made to suggest by Mr. Chhatrapati that such a use of a defined passage particularly as it has been through a fixed door marked in the sketch Ex. 50 which has been existing over last 100 years and which was used as such for the entire house till even the partition took place and later on should be treated as a continuous easement and in support thereof he tried to invite reference to some English decisions. We might in this connection refer to a decision in the case of Narayana Gajapatiraju v. Jank Rathavyammaji Guru A. I. R. 1930 Madras 609 wherein various English decisions on the point were considered and as observed therein they cannot be of any assistance where we have a specific Act regulating and touching such rights of easement relating to the properties. We may quote those relevant observations with advantage. They are:-IT seems to us that where the law has been codified we are bound by the Code and it is not permissible for us to refer to the English Law on the subject where the provisions of the Code are clear for the purpose of not giving the words of the Code their plain meaning. These observations came to be followed In the case of Malkajappa Chanvirappa Hullur v. Rachappa Guledgud 44 Bom. L. R. 673 as well. It was observed in the Bombay case following the Madras case referred to above that it was not open in India in those cases where the Indian Easements Act applied to follow the English decisions subsequent to the Indian Easements Act and to hold that a formed and metalled path-way would be an apparent and continuous easement for the purpose of determining the rights of parties under sec. 13 clause (f) of the Indian Easements Act. 13 clause (f) of the Indian Easements Act. In the Madras Case besides it was held that a right of way to a house or the land of another is a discontinuous easement although it is apparent and even though such right is claimed over 8 formed and metalled pathway. Sec. 5 and illustration (b) thereto still remain in the Code and they cannot be lost sight of while considering the effect of clause (f) of sec. 13 of the Act. We respectfully agree with those observations and hold in agreement with the learned Assistant Judge that a right of easement for passage cannot be had under sec. 13 (f) of the Act inasmuch as it does not fulfil the second requirement about the easement being a continuous easement though no doubt apparent. ( 7 ) THE alternate contention is that at any rate such a right of passage would certainly fall under clause (e) of sec. 13 of the Act as it fulfils both the condition is set out therein on the partition of the joint property effected In 1952 between the parties The claim for such a passage arises obviously on account of partition of the house between the owners thereof. What is then necessary is to show that such a right of passage as an easement over the share of the defendant is necessary for enjoying their own property. In other words according to Mr. Chhatrapati all that is necessary is that on partition of the joint property if no such right of passage exists the house would be rendered useless and no one would be able to live therein. It would be blocked from all sides. In that event in any case the plaintiffs are entitled to claim a right of passage through the door F as an easement of necessity. It was how ever urged on the other hand by Mr. Zaveri that the plaintiffs can only claim any such right as an easement of necessity and for that the necessity must be absolute and an imperative ones According to him while on two other sides of the house there are houses of other persons where they cannot have any access there is a Mohalla beyond the back wall of the house and it is quite possible to put up a door in that wall abutting on the Mohalla passage. He also pointed out that he has also put up a door on that side In his wall. In those circumstances when such a possibility of opening a door exists the house property cannot be said to be such that it is necessary to provide passage on ground of absolute necessity. He further urged that an easement to necessity does not mean that it is necessary for reasonable or convenient enjoyment of the house but that it must be such without which it cannot be used at all. The necessity contemplated under sec. 13 (e) of the Act is absolute and imperative. That does not exist in this case and therefore clause (e) of sec. 13 of the Act cannot help the plaintiffs. In support of that contention he Invited a reference to the decision in the case of Sukhedi v. Kedar Nath I. L. R. 33 Allababad 467. After considering the effect of some of the English decisions it was held in that case that an easement of necessity is an easement without which a property cannot be used at all and not one merely necessary to the reasonable enjoyment of the property. In that case a similar contention as is raised in this case before us was raised on behalf of the respondent Kedar Nath that with reference to the existing state of building and without any alteration therein the use of the doorway in question for access to his share of the portion was an absolute necessity. That contention was rejected by observing that there is however no authority to favour the contention and the share cannot be deemed to be absolutely useless without the right of way claimed. In other words the respondent Kedar Nath was denied his right of way through the existing door inasmuch as the user of that right was not absolutely necessary for the benefit of his share for the house and he could certainly open a door towards the north for access to his share. This decision was later on followed in the case of Mohammad Ata Hussain v. Quadir Baksh A. I. R. 1930 Allahabad 560 where it was held that in clause (a) of sec. 13 of the Easements Act necessity means an absolute necessity. This decision was later on followed in the case of Mohammad Ata Hussain v. Quadir Baksh A. I. R. 1930 Allahabad 560 where it was held that in clause (a) of sec. 13 of the Easements Act necessity means an absolute necessity. It was further observed that where a purchaser could make a passage for himself by piercing a door it could not be said that he had an easement of necessity of passing over his transferors property. This line of reasoning was also accepted by the High Court of Patna in the case of Daroga Lal and others v. Devi Lal A. I. R. 1918 Patna 327 where it was observed that an easement of necessity can only arise when the property cannot be used at all without the easement and not where the easement is merely necessary to the reasonable enjoyment of the property. Later on following the decision of Sukhedi v. Kedar Nath (Supra) it has been observed as under :it is clear from this that the plaintiff cannot claim the easement of necessity unless he can show that it is not possible for him to construct a new passage for his use; in other words the plaintiff must make out that the use of the way claimed is one of absolute necessity and not merely necessary or convenient or that it was used so long by him. In the case of Narayana Gojapatiraju v. Janki Rathatyammaji A. I. R. 1930 Madras 609 it was observed that an easement of necessity being an easement without which a property cannot be used at all and not being one merely necessary to the reasonable enjoyment of the property. But we find it later on observed that a right of way over the land of another mode of access to his property exists. These latter observations show that in the Madras case there existed another access to the property and naturally therefore the transferee cannot claim a right of way over another persons land when he had other access for his property. It does not appear to go so far as the Allahabad and Patna cases go. Now this Madras decision came to be followed by Divatia J. in the case of Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud 44 Bom. L. R. 673. It does not appear to go so far as the Allahabad and Patna cases go. Now this Madras decision came to be followed by Divatia J. in the case of Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud 44 Bom. L. R. 673. We do not find any such discussion with regard to the same point though no doubt he finds that the learned judge was right in holding on those facts that an absolute necessity was not proved. By reason of this decision it was urged that what is essential is an absolute necessity and towards the end of the judgment certain observations tend to support the view taken by the Allahabad High Court in the decisions just referred to hereabove by explaining an easement of absolute necessity; by saying that where it is not possible to have any other way for passage. He further observed that the same reasoning would apply to the passage or water which must be regarded as a discontinuous easement and therefore not falling under clause (b) of the section. It does no doubt appear that the authorities relied upon by Mr. Zaveri lay down that necessity contemplated under sec. 13 whether it falls under clauses (a) (c) or (e) of sec. 13 must be absolute and imperative so much so that it is not enough to show that there exists any other passage at the time when the right is claimed but that it is further essential to show that there was no possibility of opening any door for the passage in any other wall of the house What is meant thereby is that the property must be shown to be such as it cannot be used or enjoyed without that easement of necessity and not where the easement is merely necessary to the reasonable or convenient enjoyment of the property. ( 8 ) IT was however urged by Mr. Chhatrapati that it would be too much to read any such word as absolute or imperative when the Legislature has not chosen to use any such expression in the section. The words according to him should be given the meaning as they stand and the Court should be slow and would not even be justified in adding any words to the same. The words according to him should be given the meaning as they stand and the Court should be slow and would not even be justified in adding any words to the same. He invited reference to two decisions of the Supreme Court in support of that proposition They are Nalinakhya Bysack v. Shyam Sunder Haldar and others 1953 S. C. R. 533 and Sri Ram Ram Narain Medhi v. The State of Bombay A. I. R. 1959 S. C. 460. With that principle in construing any provision of law there would not arise any dispute. But what is done in those cases is to give a meaning to the words used in different clauses of that sec. 13 of the Act. In all the clauses the words used are necessary for enjoying the share of another. The plain and natural meaning that can be given to those words would be by saying that for the enjoyment of that portion of the house fallen to his share or gone to any person by transfer or the like the easement claimed by that person must be necessary. Thus a necessity of any such easement right must exist at the date when the partition took place or the transfer took place as the case may be. That necessity has to be determined on the basis of the condition of that portion of the house as it exists when partition is effected and if by reason of partition effected in absence of any agreement to the contrary no passage remains for that portion of the house as it would in this case the main door portion of the house falling to the defendants share the plaintiffs cannot be rendered helpless by saying that there is a possibility to open or pierce a door in the back wall of his house abutting on the Mohalla way. While we agree that if the house has any other access may be Inconvenient even for enjoying that portion of the house the necessity may not be said to be such as to say that it is necessary to have that easement right for enjoyment of his house. All that is necessary therefore is that the necessity must exist and that necessity should he for the proper enjoyment of the property fallen to ones share. All that is necessary therefore is that the necessity must exist and that necessity should he for the proper enjoyment of the property fallen to ones share. It these two conditions are satisfied as we find them so satisfied in the case before us there is no reason why their claim of easement by way of necessity should be further restricted by going to the length of saying that it is possible to open a door on the back wall of the house. Such a possibility in our view cannot be taken into account for it would depend upon various factors not contemplated or considered at the time when the partition takes place. In the first place to say that he can pierce a door in a blind wall on the north abutting in a Mohalla is to ignore the condition of the portion of the house fallen to his share. No compensation is made to them for their being deprived of the use of the passage through the main door of the house and for their having to open a door in the northern wall which certainly would involve 8 fair amount of expenditure rendering at the same time that room of the house almost a passage-like portion for the other part of the house. Then it is dependent upon the condition of that street or Mohalla and as to whether the Municipality would necessarily grant permission for the same. To say that they may open a door for enjoyment of their house would be tantamount to saying that they shall open it which we are afraid the Courts should go to say-resulting In compulsion or even coercion for opening such door in the northern back shall of the house just for the sake of benefiting the defendant. It may well be that the party would be far too poor to bear any expenses what. ever to put up any door on that side and therefore if the necessity of such an easement right were to be ascertained it would amount to our saying that they shall open a door elsewhere merely because it is possible on northern side failing which they may remain blocked up in that portion of the house. The words necessary for enjoying the share of another in sec. The words necessary for enjoying the share of another in sec. 13 (e) in our view cannot be given such a meaning that it cannot be called easement of necessity if it is possible to open a door in one of the walls of the plaintiffs house. We are unable to go tn such an extent while interpreting these words in the section as done by the High Courts of Allahabad and Patna in the cases referred to above. ( 9 ) IT was pointed out by Mr. Chhatrapati that as against these decisions a Division Bench of the Bombay High Court consisting of Sir Charles Sargent C. J. and Telang J. in Esubai v. Damodar Ishvardas I. L. R. 16 Bombay 552 bad taken a view regarding a right of way which is inconsistent with the view expressed by the Allahabad High Court and followed by the Patna High Court and the Madras High Court. The facts of the case before the Bombay High Court were that a plot of land in too centre of the defendants oart was granted to the plaintiffs predecessor-in-title on Fazendari tenure to build a house upon it. A hut was accordingly built upon it. No privy was built with or attached to the hut the occupants of the hut using the oart or neighbouring oarts for natural purposes. The plaintiff bought the hut knocked it down and proceeded to build a substantial dwelling with a privy on the site of the old hut. The defendant denied his right to build a privy or to have any right of way for sweepers to the said privy when built; and it was held by the Division Bench of the Bombay High Court that the suitable enjoyment of the hut when it was originally built implied the use of a privy whenever the occupants of the but should think fit to build one and that therefore the plaintiff was entitled to build a privy and consequently also to a way necessity for a sweeper to have access to the privy when built. The Division Bench also held that the occupants of the old hut had been allowed as a way of necessity and bad always used as a means of access to that portion of the site of the old hut on which the new privy was now being built a path which went in a straight line from the gate in the outer wall of the oart to the front door of the hut and thence skirting the hut to the site of the new privy. The plaintiff claimed a right of way for his sweeper in a direct line from the outer gate to the new privy thus avoiding the front entrance of the house; and it was held that having regard to the class of persons who had lived in the old hut (who were of low caste) there could have arisen no reasonable necessity for two ways to the site in question and therefore the plaintiff was limited to the old way enjoyed by his predecessor-in-title; and thus this decision of the Division Bench proceeded on altogether different lines that the principles approved by the Allahabad High Court in Sukhdeis case (supra) and by the Patna High Court and Madras High Court in the decisions referred to above. This decision was not considered in any of those decisions including the decision in 44 Bom. L. R. 673. However it must be said that it proceeded on the assumption of a reserved grant and more than that is the fact about the case being one prior to the Indian Easements Act came to be applied to the City of Bombay. The decision proceeded on the principles of English Law regarding absolute necessity. We are unable to go on any such basis both on the ground that it proceeds on principles of English Law as when we have definite code relating to the same we have to go by the provisions of the Act and in our view therefore it cannot be taken as an authority to govern the facts In this case. We are unable to go on any such basis both on the ground that it proceeds on principles of English Law as when we have definite code relating to the same we have to go by the provisions of the Act and in our view therefore it cannot be taken as an authority to govern the facts In this case. ( 10 ) IF however there existed any door at the time of partition which gave any ingress or egrees to the house from any other side even if inconvenient one would be justified in saying that the necessity may not be said to be so existing that the plaintiffs would not be able to enjoy their property. The enjoyment of the property can well be by another passage which may be inconvenient. Nor can religious sentiments of a person on the basis that an entrance door of a house cannot be opened in a particular direction may be allowed to prevail. All that has got to be tolerated as a necessary result of some such partition taking place of the joint family property if they could not have any specific agreement as to the passage for the plaintiffs part of the house. We may however observe that this right by easement of necessity can only be allowed to stand as long as that necessity exists i. e. till such time that the plaintiffs house has no other passage than the one through khadki door. At any time when the plaintiffs open a passage for their house in the northern wall or the like that necessity shall cease to exist and the plaintiffs then can have no such passage on the defendants side as declared in this suit. In our view therefore it would be too much to go to the length of saying that if it is possible to pierce a door in the northern wall there cannot arise any necessity contemplated under clause (e) of sec. 13 of the Act. With respect therefore we are unable to agree with the decisions referred to above and go so far as to hold that the passage must be so absolute as would include a possibility of opening a door though no other passage existed at the date when the partition takes place. 13 of the Act. With respect therefore we are unable to agree with the decisions referred to above and go so far as to hold that the passage must be so absolute as would include a possibility of opening a door though no other passage existed at the date when the partition takes place. ( 11 ) IT is thus clear that a right of passage as an easement of necessity contemplated under sec. 13 clause (e) of the Act through the door falling in the property gone to the share of the defendant does arise in this case since the plaintiffs house is left without a passage-door so as to enjoy his property. When that is so he cannot claim as of right any such defined passage through the chowk and osri and then to the door as it existed before. Mr. Zaveri urged by a reference to sec. 22 of the Act that the defendant has to exercise his right in the least onerous way to the servient owner and that therefore the right of passage should be so given to the plaintiffs house as to enable the defendant to make use of his chowk and osri and have no disturbance from them. He has thus suggested a passage to be set out as described in a statement Ex. B dated 10-10-68 given before us. On the other hand) it was pointed out by Mr. Chhatrapati that the latter part of sec. 22 provides that when the exercise of an easement can without detriment to the dominant owner be confied to a determinate part of-the servient heritage such exercise shall at the request of the servient owner be so confined. Thus it can be so set out provided it is without detriment to the dominant owner. In his view the proposed passage is far detrimental to the enjoyment of their house and the order passed by the trial Court in that regard should be restored. His further contention is that no such alternate case has been put up in the memo of appeal much less in the Courts below by the plaintiffs as they have chosen to do at the fag end of the hearing of this appeal in this Court. His further contention is that no such alternate case has been put up in the memo of appeal much less in the Courts below by the plaintiffs as they have chosen to do at the fag end of the hearing of this appeal in this Court. He further urged that it is a matter to be considered on the evidence to be led by the parties on a relevant issue raised in that regard. Besides it was said that there is a fixed door in the khadki and the passage for going to that door would be through the chowk though no doubt it may be restricted to 3-10 as found by the trial Court. It was emphasized that it must be limited to the same area of a servient tenement as it existed before and it cannot be changed as suggested by Mr. Zaveri before this Court. The first case referred to by him in support of his contention was of Bandaru Venkayya and another v. Lakshmi Narasayya and another A. I. R. 1957 Andhra Pradesh 975 where it was held as under :-IF the right of way has been acquired from one point to another in a particular direction or according to a particular route the servient owner cannot at his choice substitute another way between the same points by a different route which might be less convenient to the dominant owner. The right of way acquired whether it is by custom or by way of a lost grant or by way of prescription should be limited to the part of the area of the servient tenement over which it has been actually exercised. This decision has followed the decision in Dhundirai Balkrishna Phalinkar v. Ramchandra Gangadhar Kale and others A. I. R. 1922 Bombay 407. The other cases cited by him are 1893 Printed Judgments Devraj Hira and others v. Karson Naran A. I. R. 1953 Kutch 33 and Dhundirai Balkrishna Phalinkar v. Ramchandra Gangadhar and others A. I. R. 1922 Bombay 407. The effect of sec. 22 is of a two-fold character : (1) the exercise of right should be in such a manner or in the mode which is least onerous to the servient owner; and (2) such exercise of right however should be without detriment to the dominant owner if it is confined to a determinate part of the servient tenement. 22 is of a two-fold character : (1) the exercise of right should be in such a manner or in the mode which is least onerous to the servient owner; and (2) such exercise of right however should be without detriment to the dominant owner if it is confined to a determinate part of the servient tenement. Now it is clear that all these decisions referred to above relate to a right of easement either acquired by prescription or by lost grant or by custom and none of them relates to a case of an easement of necessity arising on partition of property or on account of transfer of portion of the property to another person The claim in this suit and in fact as we found above it arises only under sec. 13 (e) of the Act and when that is so it would stand governed by sec. 14 of the Act. Sec. 14 runs thus :- ( 12 ) WHEN a right to a way of necessity is created under sec. 13 the transferor the legal representative of the testator or the owner of the share over Which the right is exercised as the case may be. is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refused or neglects to do so dominant owner may set it out. It would thus appear abundantly clear that this sec. 14 relates to a right of way of necessity and that again arising under sec. 13 of the Act. It is this section therefore which would govern the present case and not sec. 22 of the Act which as we said above would govern any right of easement arising by prescription grant or custom as referred to in other provisions of the Act. When a specific provision is contained in sec. 14 in relation to the easement of necessity dealt with under sec. 13 of the Act. the applicability of sec. 22 and the decisions cited in respect thereof would not help us in the present case. Now it is further clear that under sec. 14 the option is given to the servient owner to demarcate the path to be used by the dominant owner as a way of necessity. 13 of the Act. the applicability of sec. 22 and the decisions cited in respect thereof would not help us in the present case. Now it is further clear that under sec. 14 the option is given to the servient owner to demarcate the path to be used by the dominant owner as a way of necessity. The very fact that any such right arises out of necessity on partition effected between the parties or so the owner on whose property that right is given viz. the servient tenement has to be given a right to set out and demarcate the path to be used by the dominant tenement. But he has to set out the same so as to be reasonably convenient for the dominant owner. It is from that point of view that the passage proposed by Mr. Zaveri the learned advocate for the defendant has to be considered so as to find out whether it meets the requirements of justice in the circumstances of the case. ( 13 ) NOW before we consider the reasonableness of the proposed passage we may consider the objections raised by Mr. Chhatrapati in that regard. His objection is that no such alternative claim or plea has been placed before the Courts below and consequently there has been no evidence led by the parties on any issue raised by the Court to determine as to whether any such passage was proper in the sense that it is reasonably convenient for the dominant owner viz. the plaintiffs in the case. It is true that no such alternate case has been put up by defendant at any stage in the Courts below. His case was that the plaintiffs have no right whatever either on the strength of agreement or by way of necessity contemplated under sec. 13 of the Act. In those circumstances there was hardly any occasion for the defendant to put up any alternate case as is now sought to be placed before us. Besides after Mr. Zaveri the learned advocate for the respondent presented a statement whereby he proposed to set out the passage in the event of our coming to the conclusion which we have done we heard Mr. Chhatrapati as to what he had to say about it. Besides after Mr. Zaveri the learned advocate for the respondent presented a statement whereby he proposed to set out the passage in the event of our coming to the conclusion which we have done we heard Mr. Chhatrapati as to what he had to say about it. All that he said was than there would be darkness in the proposed passage as the defendant would put up a full wall and the light coming from the chowk would not be there. It was further said that it would not be very safe for the persons living in that house to come out by that small lane proposed to be set out by the defendant. As to the first part of his objection it must be stated that it would be in the interest of both the parties that the passage should be marked out from the western end of the osri. From there the occupants of that house can well go to the Khadki door in the sketch Ex. 50 in the case. That passage shall be 3-10 as was considered proper by the trial Court. However at the turning point we think that it should be some what more in the corner so that the passage could be conveniently used on good and bad occasions for going up to the door. In other words the passage shall be from their house to the portions of their own chowk and osri marked A and B in Figure A in sketch Ex. 50 and then shall go towards the southern side from a passage of the width of 3-10. That passage shall further be of 4 feet in the corner and onwards it shall be 3 10 till they reach the Khadki door shown in the sketch. We have put a line in ink and marking the wall intended to be put by the defendant for demarcating the plaintiffs passage as XYZ and then from O and P to the door in the Khadki. That would enable them to have egress and ingress to the house as also for the enjoyment of the latrine which is situated in the west-south corner on the ota of the house. It would be thus an independent passage for the plaintiffs house and would not materially affect the use of the chowk and osri of the house fallen to the share of the defendant. It would be thus an independent passage for the plaintiffs house and would not materially affect the use of the chowk and osri of the house fallen to the share of the defendant. To allow the plaintiffs any passage from the defendants chowk and osri would render that portion useless for the enjoyment of the house. Now it is true that there would be no light in that demarcated passage if the defendant puts up a wall to the extreme height touching the top of this osri. That difficulty is genuine and therefore the defendant in that event shall put up jali or make such arrangement whereby that portion of the passage would get light from the chowk and the osri fallen to the share of the defendant. From the top of the osri at least the jali shall be of not less than 3 feet. That would meet the objection raised by Mr. Chhatrapati and the passage thus demarcated shall be perfectly proper for convenient and reasonable enjoyment of both the houses. The passage that way shall be almost of exclusive character for the plaintiffs and through that passage the defendant shall have no right to go. Until such time that such a passage is set out accordingly plaintiff shall have a right to make use to the passage as given by the trial Court. The decree passed by the learned Assistant Judge in that regard shall thus be modified accordingly. ( 14 ) THAT takes us to the consideration of the other dispute between the parties relating to the discharge of rain water from the terrace of the plaintiffs house and taken to the mori at point `e near the door F shown in the sketch Ex. 50. The contention made out by Mr. Zaveri was that the learned Judge has not taken into account certain evidence which suggests that the plaintiffs can divert the rain water from his terrace through the mori in their kitchen and then discharge the same on to the northern side of the house. In fact the learned Assistant Judge has considered the entire evidence and found that there is no reliable evidence to suggest that such a passage could meet the requirement in the sense that there has been a level for passage of such rain water on that side. In fact the learned Assistant Judge has considered the entire evidence and found that there is no reliable evidence to suggest that such a passage could meet the requirement in the sense that there has been a level for passage of such rain water on that side. Though no doubt at one stage he has observed that there in no such evidence he does appear to have discussed all the evidence in that respect broadly and recorded a clear finding in that respect. That is clearly a finding of fact on due appreciation of evidence in the case and therefore it is not open to us to re-appreciate the evidence and to interfere with that finding in second appeal. ( 15 ) EVEN if we were to consider this right of discharging rain water from the plaintiffs terrace on to the mori E in the khadki two facts are clear. The first is that the rain water goes by the mori. It is on partition that it is sought to be prevented and more so by saying that it can discharge the same on other side in the north. Now this right of easement it is urged by Mr. Chhatrapati would obviously fall under clause (f) of sec. 13 of the Act and on that basis he is entitled to claim the same on partition. On the other hand it was urged by Mr. Zaveri that such a right is neither continuous nor an apparent easement and he sought support for the same from the decision in the case of Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud resorted in 44 Bom. L. R. 673. At page 677 Divatia J. has observed as under :the necessary result therefore would be that even if there is a formed way it does not pass as an easement of qualified necessity. It can only pass as an easement of absolute necessity that is to say where it is not possible to have any other way for passage. The same reasoning would apply to the passage of water which must be regarded as a discontinuous easement and therefore not falling under cl. (b) of the section. Now these observations are in relation to the passage of water and not about the rain water as such as we have in this case. The same reasoning would apply to the passage of water which must be regarded as a discontinuous easement and therefore not falling under cl. (b) of the section. Now these observations are in relation to the passage of water and not about the rain water as such as we have in this case. Apart from that if we turn to sec 5 of the Act it would be difficult to call this a discontinuous easement in the sense that it needs the act of a man for its enjoyment. It may be so in respect of a right in relation to water from the kitchen or the like. The continuous easement is one whose enjoyment is or may be continuous without the act of a man. An easement in respect of rain water as such can be said to be one whose enjoyment is or may be continuous without the act of a man. It can fall in line with an easement in relation to light and air in respect of any property. it is also an apparent easement as it can be easily seen by anyone that it passes from a particular tract such as the mori E near the door shown in the sketch. That is happening since last hundred years and that is thus a fixed passage for the rain water coming from over the terrace now fallen to the plaintiffs share. Illustration (c) to sec. 5 clearly indicates any such rights annexed to As land to lead water thither across Bs land by an aqueduct and draw off water thence by a drain as since the drain would be discovered upon careful inspection by a person conversant with such matters they are apparent easements. In other words anyone who would have a look at it would find that the passage of rain water from the terrace of the plaintiffs house has been clear and quite visible. In our view the decision in the case of Malkajappa Chanyirappa Hullur v. Rachappa Panchappa Guledgud 44 Bom L R. 673 has no application and even if it were taken to be a decision on this point relating to rain water with respect we are unable to agree with it. In this view of ours we find support from the case of Mt. In this view of ours we find support from the case of Mt. Sajid-un-nissa Bibi v. Sayed Hidayat Hussain and others A. I. R. 1924 Allahabad 748 where it was held that where the drain through which the water flows is a masonary drain it is an apparent easement within the meaning of sec. 5 of the Easements Act. The drain is continuous easement in so far as the flow of rain water is concerned. For the flow of rain water no act of man is needed. But the flow of water from the latrine requires the act of man and to that extent the easement to flow such water is not continuous easement. Similarly in the case of Bala Parsad v. Chandar and others A. I. R. 1927 Lahore 383 it was held that a right of easement does arise on partition between the two tenements as regards the discharge of rain water but not of water for daily use the former being in the nature of an apparent and continuous easement and the latter not being continuous or apparent. The other case is of Venkata Narasinmha Sastry v. Veereswara Sastry Sidhanti A. I. R. 1944 Madras 441 where it was held that if the easement claimed is apparent and continuous and necessary not in the sense of absolute necessity but necessary for enjoying the share of the dominant tenement as it was enjoyed when the partition of joint property tool : effect it shall pass to the owner of the dominant tenement. It is therefore clear that the right to claim an easement for discharge of rain water from the terrace of the plaintiffs house is in the nature of an easement of necessity contemplated under sec. 13 (f) of the Act-it being both an apparent and continuous easement and the same having been enjoyed before the partition took place between the parties for over last hundred years. The mere fact that the kitchen water goes through the other channel does not take away the right of an easement for the discharge of rain water from one falling under clause (f) to clause (e) of sec. 13 of the Act. The mere fact that the kitchen water goes through the other channel does not take away the right of an easement for the discharge of rain water from one falling under clause (f) to clause (e) of sec. 13 of the Act. The plaintiffs are therefore entitled to the same right as it existed before and the learned Assistant Judge therefore was right in restraining the defendant from preventing the plaintiffs from discharging the rain water through the mori E shown in the sketch. The cross-objections in that respect shall therefore stand dismissed. Order accordingly. .