JUDGMENT M.H. Beg, J. - This is a plaintiffs' second appeal arising out of a suit, dismissed by both the courts below for a perpetual injunction to restrain the defendant, Godawari Sugar Mills Ltd., from interfering with the user by the plaintiffs of the road indicated by the letters IJK on it site plan annexed to the plaint. This road runs roughly from west to east between points I and j and then turns to the south in the direction of the arrows between letters J and K. The part of the road between I and j lies to the west of the distillery belonging to the defendant sugar mills. It runs nearly half its distance along the western boundary wall of the distillery and separates it from the railway quarters lying to the north of the road, and, for the remaining half of the distance, it runs right through the land belonging to the distillery itself lying on each side of it until it joins a road, at point J., running north and south leading to the Sugar Mills of plaintiff No. 6. 2. The first five plaintiffs are residents of various villages surrounding Captainganj and have sued in a representative capacity on behalf of the residents of these villages, and the sixth plaintiff is Spanker Sugar Mills, Captainganj, itself, to which the five plaintiffs suing in representative capacity supply sugarcane and mud on their carts. The five plaintiffs, who are residents of the surrounding villages, claimed a right to use the road in question on the ground that it had been dedicated to the use of the public. This dedication was alleged to have taken place as a result of three stages in the user of the land on which the sugar mills and the distillery now stand. In the first stage, there were said to be several customary paths for crossing from west to east through a rectangular tract of land not more than five hundred yards in length. When, however, one Seth Inderchand Kejriwal built the sugar mills on this land in 1933-34, the customary paths are said to have been closed and the traffic was confined to a winding track shown on the map of the land, lying within the compound of the sugar mills, as ABCDEFGH. When, however, one Seth Inderchand Kejriwal built the sugar mills on this land in 1933-34, the customary paths are said to have been closed and the traffic was confined to a winding track shown on the map of the land, lying within the compound of the sugar mills, as ABCDEFGH. After that, Seth Inderchand, who was the shareholder of the majority of shares in the Shanker Sugar Mills Ltd., plaintiff No. 6, acquired some more adjoining land to the north of the sugar mills. In this land, the distillery was erected between 1943-44. It was owned and run by the Shanker Distillery and Chemical Works Ltd., which was separate and distinct, as a legal entity, from the company which ran the Sugar Mills. But, Seth Inderchand owned the majority of shares in the Distillery and Chemical Works as well and controlled it. It was alleged that, over land of the Distillery and Chemical Works Ltd., a new road was made, after 1943, running from I to K and then on the land of the Sugar Mills from K to L. It was alleged that Seth Inderchand then decided to close the road ABCDEFGH, which is inside the compound of the plaintiff sugar mills now, and to substitute it by the newly opened road IJKL. This was said to be the manner in which the road IJKL became dedicated to public use. The sixth and the last plaintiff, the Shanker Sugar Mills, also claimed a right of user of the road IJK as a convenient mode of access to it by the suppliers of sugarcane and mud, coming from the surrounding villages, and also, from the railway station which lies towards the west of the Shankar Sugar Mills and of the distillery belonging to the defendant mills. All the plaintiffs, in addition to the common claims mentioned above, based on alleged custom, also claimed a prescriptive right by user of the land for more than 20 years. There was no dispute about the user of the length of the load indicated by letters KL which appear to be really a part of another ,;rip of road running north and south past the point K, after which the land of the plaintiff no. 6 commences. 3. There was no dispute about the user of the length of the load indicated by letters KL which appear to be really a part of another ,;rip of road running north and south past the point K, after which the land of the plaintiff no. 6 commences. 3. Apparently, there was no dispute or trouble about the user of the road between points IJK also so long as Seth Inderchand had control over the Sugar Mills as well as the Distillery and Chemical Works in both of which he held the majority of shares. But, in 11954, his shares in the Distillery and Chemical Works were considerably reduced by sales to Shyam Sunder Kanodia. After that, it is stated in the plaint, there was friction between employees and suppliers of the sugar mills using the road IJK and the employees of the Distillery and Chemical Mills. But, it is also stated in the plaint, the friction was removed by obtaining orders of the Head Office of the Distillery and Chemical Works Ltd., at Calcutta. It was, however, after a sale, in 1960, of the distillery to the defendant, Godawari Sugar Mills Ltd., that the interruption, said to have been caused by putting up a gate at 1, the western end of the road, and the defendant's claim that it was a private road of the distillery, between I and K, that the need to file a suit is said to have arisen. 4. I may observe here that there is considerable vagueness in the nature of the rights set up in the plaint. The plaintiffs tried to base their alleged lights on as many grounds as they ' possibly could have furnishing sufficient particulars of any distinct kind of right which could be upheld. The trial court framed two issues covering the nature of rights claimed by the plaintiffs. In only the second of these issues could it be said that the specific source or basis of the particular rights claimed was put in issue. These issues were : "1. Whether the plaintiffs have right of passage over the land in suit? 2. Whether the land in suit was dedicated for public passage ?" The trial court dealt with issues Nos. 1 and 2 together. These issues were : "1. Whether the plaintiffs have right of passage over the land in suit? 2. Whether the land in suit was dedicated for public passage ?" The trial court dealt with issues Nos. 1 and 2 together. It found that the plaintiffs allegation, that the land now covered by Spanker Sugar Mills and by the Distillery owned by the defendant company was originally covered by several paths, was not supported by any papers filed by the plaintiffs. On the other hand, Ex. A-6, a map prepared in 1915-16, of the area under consideration, Indicated that there was no paths here at all in 1915-16. It rightly point- ed out that the plaintiffs had not even tied their case to any definite or formed path before 1933 in this land which was an essential condition for putting for ward a right of way of any kind on a particular path. It is this vague and amorphous alleged customary right which was said to have been converted into an express grant of ABCIEFGH, and, when this last mentioned passage was closed, into a dedication of IJKL. 5. Learned counsel for the plaintiffs-appellants seemed to contend (perhaps not seriously) that such a right of way could be compared to the flow of water in a river which could change its course from time to time, I am unable to subscribe to such a view. From the earliest times, a right of way, claimed on any ground whatsoever, has been required to be specific and well defined. It was, for example, very meticulously specified, as regards its extent and character, in each of the three kinds of way-Iter, Acuts, Via-recognised by Roman law as "Jura in re aliena" (rights in the property of others) . 6. Coming to the law laid clown by our Courts, I find that a Division Bench of this Court, in Lal Bahadur v. Rameshwar Dayal, A.I.R. 1921 Alld. 6. Coming to the law laid clown by our Courts, I find that a Division Bench of this Court, in Lal Bahadur v. Rameshwar Dayal, A.I.R. 1921 Alld. 206, quoted with approval and adopted the following passage from Joy Doorga Dossia v. Juggernath Roy, 15 W.R. 295." "If they having driven the cattle over the lands generally, that is to say, riot by any particular path but straggling promiscuously over the lands, which is the right claimed by the plaintiff, be held to give the plaintiff a right in all time to come so to drive his cattle, it would be interfering with the lands to such an extent as to make it impossible that they should ever be used for any useful purpose. A right of way or other easement must not be so large as to extinguish or destroy all the ordinary uses of the servient property and in our opinion no length of time would have given the plaintiff such a right as he claims, namely, a straggling right to the promiscuous use of the whole property for the purpose of driving his cattle over it." 7. Another case to which reference has been made is B. A. Thakanmm V. N. A. P. Amma, A.I.R. 1955 NUC Vol. 42 No. 6002 (Trav. Co.), where it was no doubt held: "An agreement between the owners of the dominant tenement and the servient tenement for an altered mode of enjoyment of an easement would not amount to a discontinuance of the easement itself. Hence, where the owner of a right of way agrees with the servient owner to use in lieu of part of the old way it new way over the servient owner's land, the non-user of the old way and the use of the new way would not amount to an interruption of the enjoyment of the right of way itself." But, it was also held there: "The mere fact that the passerby are allowed to walk along a certain field for however long a time would not amount to creating a right of way by prescription over that field. For acquiring a right of way by prescription the owners of the dominant tenement should have used that way as an easement, and as of right for a statutory period." 8. For acquiring a right of way by prescription the owners of the dominant tenement should have used that way as an easement, and as of right for a statutory period." 8. In Lakshmidhar Misra v. Rangala, A.I.R. 1950 P.C. 56 Lord Radcliffe pointed out the distinction between rights created by dedication, and those created by "lost grant", providing a presumed legal origin, and those created by custom which became the "local law of the district." Even if a custom could, as was held by a Full Bench of this Court in Dr. Hafiz Mohd. v. Shiam Lal, A.I.R. 1944 Alld. 177 , be crystalised in a period of seventeen years, it has to be proved by sufficient number of instances or other reliable evidence if it, and, furthermore, it has to be proved to be it reasonable custom. 9. The customary right, which was said to have been exchanged with an express grant, must be shown to exist in the form of a customary right before that right could be said to be exchanged with or converted into or confined to the kind of grant which has been set up by the plaintiffs. In order to judge whether the alleged customary right existed, it has to be determined whether the custom set up is reasonable. I have referred to the pronouncements of our Courts and even to. Roman Law to indicate that indefiniteness of the alleged right should itself make it unreasonable. What was alleged here was, the initial user of a tract of land in which the sugar mills was built in 1933-34, and in which there were said to be atleast three paths running in the same direction, for crossing over from one side of the land to the other, without even fixing their locations or widths. This meant that a whole tract of land would become useless due to the alleged customary right if upheld. If such a custom, set up here, would be void for unreasonableness, as I think it would be, no question of ex- changing such an alleged customary right with it new express grant or its con- version into a new right could arise. 10. It was urged by Mr. Rajeshwari Prasad that the lower appellate court had wrongly failed to go into the question of custom at. 10. It was urged by Mr. Rajeshwari Prasad that the lower appellate court had wrongly failed to go into the question of custom at. all on the erroneous assumption that it was not necessary to determine the existence of any passage before the sugar mills and the distillery were constructed. The object of this submission appeared to be that the whole case or atleast an issue should be sent to the coin t below for a finding on this question which was said to be very material. One of the replies given to this contention was that every basis of a claim except one was given up in the lower appellate court by the plaintiffs. The following passage from the judgment of the lower appellate court was cited in support of this contention : "It was conceded before me that the plaintiffs did not claim any right of way either by prescription or by express grant. The only contention raised before me was that it was established in the case that the plaintiffs acquired right of passage over the disputed land by an implied grant. The other findings of the court below were not challenged before me. 11. The only point that arises for determination in this case is whether there was any implied grant of passage in favour of the plaintiffs over the disputed land." This contention appears to be quite correct. The judgment of the lower appellate court shows that no question of customary right was argued before it even though it was set up in the plaint as one of the possible bases of the right which was said to have been exchanged with or converted finally into the right to use the road IJK. This road came into existence as a formed road only after 1943. .Apart from other grounds given above, negativing the existence of any customary right which could be exchanged for or converted into or confided to the right to use the road ABCDEFGH and then the road IJK, the case set tip made the alleged pre-existing customary right relevant only for the purpose of determining whether it existed so as to provide what the express grant of the winding path ABCDEFGH was said to have been made in lieu of and then superseded by the alleged dedication of IJKL. In other words, the alleged customary right was set tip as it right which was given up as it part of the transaction which was said to have resulted in the express grant. It was thus indissolubly linked up with the case of an express grant. Therefore, the lower appellate court rightly did not embark upon determinations of questions which i,ad become immaterial on the concession made. The plaintiffs-appellants have not even mentioned specifically, in their numerous grounds of appeal, claim of it customary right. For all these reasons, it is unnecessary to remand the case or to remit an issue to the lower appellate court for a finding on the alleged customary right. 12. Turning now to the case of an implied grant, which was the only other case seriously attempted to be argued before me, I am unable to find the basis hereupon which even an implied grant could rest. At first the learned counsel for the appellants tried to argue that the case was covered by the pro- visions of Section 13 sub-Secs. (c) and (d) of the Indian Easements Act (herein after referred to as 'the Act') . But, as soon as the elements of these "Easements of necessity and quasi-easements" were examined, it appeared that Section 13 was not applicable. Section 13 (a) to (d) apply only when there is a transfer of bequest of property by one person to another, even though the transfer may be by operation of law, and Sections 13 (e) and (f) of the Act apply in a case of partition of joint property of several persons. No such transaction had taken place between the plaintiff sugar mills and the defendant sugar mills. The transfer in 1960 was by Shanker Distillery and Chemical Works Ltd., which was a different and distinct entity from that of the plaintiff sugar mills, and the transferor was not claiming any easement under Section 13 of the Act. Therefore, Mr. Rajeshwari Prasad, very properly, gave up the contention, initially advanced on behalf of the appellants, that Sections 13 (c) and (d) of the Act would help the plaintiffs. 13. The next contention was that an implied grant could come into existence even apart from the provisions of Section 13 of the Act. Reliance was place ( behalf of the plaintiffs-appellants on Raipur Colliery Co. v. Pursottam Gohil, A.I.R. 1959 Pat. 463. 13. The next contention was that an implied grant could come into existence even apart from the provisions of Section 13 of the Act. Reliance was place ( behalf of the plaintiffs-appellants on Raipur Colliery Co. v. Pursottam Gohil, A.I.R. 1959 Pat. 463. That case was decided by applying the principles of English Law re rating to an implied grant of a right of way over the servient tenement which is necessary for the reasonable and convenient use of the dominant tenement. The authorities cited there make it clear that such an easement comes into existence only upon either a transfer or a partition of immovable property. We also find stated there that Section 13 of the Act, the principles of which were sought to me invoked on behalf of the defendant, was not applicable in the State of Bihar (see paragraph 24 pages 468-469). 14. It was, however, contended before me that, the Easements Act is not exhaust ye, and, therefore, an implied grant could be inferred even outside the provisions of Section 13 of the Act which applies in the State of U. P. Reliance was placed for this proposition of Rajroop Koer v. Abdool Hossein, I.L.R. 6 Cal. 394 P.C., where it was pointed out that Section 26 of the Limitation Act was not the only way of acquiring an easement, but that it can as well be acquired in other recognised ways such as express grant, implied grant, or lost grant." 15. An examination of English authorities on implied grants will show that they lay down the very principles which are found embodied in Section 13 of our Easements Act. We find the English law thus summarised in Halsbury's Laws of England, III Edn. Vol. 12 at page 573 : "A right of way may arise by implication of law where both dominant and servient tenements have been in the common ownership of one person and one or other of the tenements has been disposed of by him. Rights of way thus arising arc either rights of way reasonably necessary for the comfortable occupation of the dominant tenement, which only arise upon a grant of the dominant tenement by virtue of an implied grant or words implied in the grant by statute, or rights of way of necessity. Rights of way thus arising arc either rights of way reasonably necessary for the comfortable occupation of the dominant tenement, which only arise upon a grant of the dominant tenement by virtue of an implied grant or words implied in the grant by statute, or rights of way of necessity. The latter are easements without which it is impossible to make any use of the dominant tenement, and can arise in favour either of the grantee on a disposition of the dominant tenement or of the grant or on a disposition of the "servient tenement." 16. Each implied grant is thus based upon a transaction or set of circumstances which give rise to the implication of a grant. In the instant case, those circumstances, found in Section 13 of the Act, are neither mentioned in the plaint nor proved. Moreover, the admission of Mr. Rajeshwari Prasad that no easement under Section 13 of the Act arises in the case really amounts to an abandonment of the case of even an implied grant. I am unable to hold that there is some kind of implied grant of it right of way recognised in the State of U. P., outside he provisions of Section 13 of the Easements Act. Cases of dedication, express or implied, customary rights of way, and easementary rights acquired by prescription are, however, quite distinct and apart from these "implied grants" found in Section 13 of the Act. On the facts indicated above and the findings of fact recorded by courts below, it is not possible to uphold any claim of the plaintiffs to a right of way on the road indicated as IJK which falls. within the land of the defendant-respondent. 17. Another contention was that the District judge erroneously excluded a report:. (21-C) which had been submitted by a commissioner appointed after the institution of the suit, at the instance of the plaintiffs, but before the defendant It id put in appearance, on the ground that the commissioner was not produced as a witness by the plaintiffs and was not subjected to cross-examination by the defendant. The commissioner's report, however, related to the apparent age of a gate said to have been placed at the western end of the road. in dispute. That question was only relevant so far as the interruption of the passage was concerned. The commissioner's report, however, related to the apparent age of a gate said to have been placed at the western end of the road. in dispute. That question was only relevant so far as the interruption of the passage was concerned. If no right to use the passage had been established by the plaintiffs, either by reason of any custom or express grant or dedication or implied giant, as has been found by me above, the question whether the interruption was recent or not did not affect the merits of the case. Therefore, even though the examination of the commissioner in court was not essential, in view of the provisions of Order 26, Rule 10 (2) C. P. C., for which proposition reliance was placed upon Ramautar Gope v. Sheonandan Mistri, A.I.R. 1962 Pat. 273, the merits of the decision of the lower appellate court were not effected by excluding the commissioner's report. Even if it be assumed that the road in question was constantly used by the plaintiffs from 1911 to 1960, when the distillery was sold to the defendant-respondent, so that the interruption of the user took place only after 1960, the plaintiffs could not have acquired any prescriptive easementary rights by a user extending over less than twenty years. 18. A last, apparently desparate, argument was that the defendant-respondent had created a estoppel against itself by allowing the plaintiff No. 6 to spend money on building and then repairing the road in the period from 1941 to 1960. The numerous grounds of appeal do not contain any specific mention of an estoppel which is a mixed question of fact and law. Ground No. 26 contains the ambiguous assertion that "the road in question would be only an extension of the Shanker Sugar Mills, plaintiff No. 6." And, in ground No. 29, it is stated that, as the entire management and construction of the sugar mills and the Distillery were carried on by Seth Inderchand, "the road in dispute was not and could not have been made exclusively for the distillery's use." This does not amount to taking up a case of estoppel within the meaning of Section 115 of the Evidence Act. Even if any allegations made in the plaint mean that the plaintiff No. 6 had spent any money either on building or maintaining the road IJK, apart from the strip KL, which really seems to be a continuation of another longer strip running north to south, and is on the land of the plaintiff No. 6, no plea of an estoppel, with regard to the strip IJK, based on any such allegations, was either put in issue in the trial court or argued in either of the two courts below. As already noticed, every basis of a claim except that of all implied grant appears to have been given up in the lower appellate court. The result is that there is no finding that the plaintiff No. 6 over spent any money in the strip of road IJK, which is the bone of contention, lying on the land of the Distillery. Such a plea, which depends upon findings on fact, cannot be advanced suddenly before this Court in second appeal for the first time. 19. I, therefore, find no force in this second appeal which is dismissed with costs.