( 1 ) THIS is a defendant's appeal against the orders passed by the 12th Additional Civil Judge on. A. IX in O. S. No. 62 of 1990. ( 2 ) RESPONDENTS herein filed the suit O. S. No. 62 of 1990 against the appellants for permanent injunction and for declaration regarding the two sale deeds executed by one Lalithamma in favour of the appellants herein as a got up document. In the suit they had filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure against the appellants for an order of temporary injunction to restrain the appellants from interfering with their possession and enjoyment of property described in the plaint as 'a' schedule property and restrain them from interfering with their right of passage described as 'c' schedule property, and also prevent them from putting up any construction in respect of properties in possession of the appellants. Upon notice of the suit and the application, appellants entered their defence and objected for granting of temporary injunction. Learned Judge after hearing the parties by his order dated 9-2-1998 has restrained the appellants from interfering with respondents' possession of 'a' schedule property and the respondents using common passage in the 'c' schedule property. However he has rejected the last prayer to restrain the appellants from putting up construction in the property in their possession. This order is under challenge. ( 3 ) SRI Manjunath, learned Counsel appearing for the appellants contended that the order of the learned Judge granting injunction cannot be supported from the material on record, and in particular his main objection is to the finding of learned Judge that respondents have a 'right of passage' without there being any prima facie material and granting of injunction on that basis according to him, learned Judge was not justified in holding that the respondents plaintiffs have a "right of way" in the said lands which is a "declaration of easement". ( 4 ) PER contra Sri Prabhu, learned Counsel appearing for the respondents defended the order and submitted that having regard to the admissions made by the vendor of the respondents in another suit it should be held that the vendor has granted a "right of way" to the plaintiffs in the plaint 'c' schedule property. Therefore, learned Judge was justified in granting the injunction. Therefore, learned Judge was justified in granting the injunction. Learned counsel in support of the said contention relied on Section 13 (d) of the Easements Act and also the decision of the Madras High Court in K. Govindarajulu Chettiar v V. N. Srinivasalu Naidu. ( 5 ) A few facts as can be gathered from the records necessary for the disposal of the case are as follows.-The plaint schedule properties originally belonged to one Captain Naidu which is situated at millers Road, Bangalore. The said Captain Naidu it appears bequeathed the entire property to his daughter Lalithamma. The said Lalithamma out of the property so acquired by her sold 24,500 sq. ft. , to the plaintiffs-respondents by means of a registered sale deed dated 14-3-1985 and put the plaintiffs in possession. Subsequently on 26-6-1989 she sold another 19,680 sq. ft. in favour of the appellants-defendants. According to the appellants they were put in possession of the said property. However the plaintiffs contended before the Court below that Lalithamma had agreed to sell the properties sold to the defendants in their favour earlier to the alleged sale deed, therefore the sale deed alleged are not valid in law. Besides they have already questioned the genuiness of the sale deed made in favour of the appellants. ( 6 ) LEARNED Judge relying on the recitals in the sale deed executed by Lalithamma in favour of the respondents-plaintiffs dated 14-3-1985 has held that the "recitals disclose that Lalithamma sold the property and put the plaintiffs in possession" and has come to the conclusion that prima facie plaintiffs are the owners of the property. On that basis granted temporary injunction. ( 7 ) SRI Manjunath did not seriously dispute the execution of such a sale deed in favour of the respondents-plaintiffs. In the absence of the sale deed being disputed and also in the absence of any challenge to the title of Lalithamma, the vendor of the plaintiffs, the findings of the learned judge that the plaintiffs have a prima facie right to be in possession has to be upheld and the learned Judge has held that there is threat of interference, granted injunction. Therefore, in my view learned Judge was justified in granting injunction insofar as 'a' schedule property is concerned. Therefore, in my view learned Judge was justified in granting injunction insofar as 'a' schedule property is concerned. ( 8 ) HOWEVER the other part of his order granting injunction in respect of 'c' schedule property in my view cannot be sustained. ( 9 ) PLAINT 'c' schedule property is stated by the plaintiff in his plaint as a common passage demarcated by the letters HFKGAJI running from northern portion of the property commencing with the Millers Road entrance throughout the length of the property. According to the plaintiff as stated in para 18 of his plaint relevant portion is extracted for ready reference is as follows: "the plaintiffs have got their right, title and interest in the common passage which is admitted to have been existing between the main house and the barbed wire fencing and the defendants have no manner of right, title or interest for shifting the said common passage to any place much less to the East to the detriment of the plaintiffs. The common passage which was existing throughout the length of the property is clearly seen in the photographs produced along with the plaint and also from the admission made by Smt. Lalithamma in Original Suit No. 10910 of 1985. This common passage was existing throughout the length of the property is clear by the admissions of Lalithamma made in the suit O. S. No. 10910 of 1985". ( 10 ) ACCORDING to the defendants "the right of way claimed by the plaintiffs in the suit 'c' schedule property was in the portion of the land purchased by the plaintiffs. The suit referred to in O. S. No. 10910 of 1985 was filed by one Dr. Laxmaiah wherein the said Doctor had claimed that he was the purchaser of the property under an agreement and was put in possession in a portion of the property who claimed a right of way in the property subsequently purchased by the plaintiffs herein. When the respondents-plaintiffs obstructed the way the said Dr. Laxmiah had filed a suit and obtained an order of temporary injunction. When the matter was taken to the high Court in CRP No. 2367 of 1986, the Hon'ble High Court in the said CRP had held that if plaintiffs-respondents had a right of way in the property they should file a separate suit. Laxmiah had filed a suit and obtained an order of temporary injunction. When the matter was taken to the high Court in CRP No. 2367 of 1986, the Hon'ble High Court in the said CRP had held that if plaintiffs-respondents had a right of way in the property they should file a separate suit. Plaintiffs-respondents did not choose to file a separate suit for declaration by easement. Per contra now sought to claim a right of way in the property purchased by the defendants-appellants where no such right of way exists". ( 11 ) THUS by going through the pleadings it has to be stated that "the existence of passage and its right to user by the plaintiff" is itself a disputed question and the parties are at issue regarding the same. ( 12 ) IT has also to be stated from records that plaint 'c' schedule property is in possession of appellants over which a "right of passage" is claimed by the respondents-plaintiffs. In other words plaintiffs are claiming easementary rights in plaint 'c' schedule property. ( 13 ) IT is not the case of the plaintiffs that this easement was acquired by grant made by lalithamma while selling 24,000 sq. ft. nor is it their case that the same was acquired by prescription. The only ground on which respondents-plaintiffs bases their claim to easement is on a supposed admission of Lalithamma made in her written statement in O. S. No. 10910 of 1985. ( 14 ) INSOFAR as the alleged admission of Lalithamma in O. S. No. 10910 of 1985 relied to by the trial Judge for granting injunction is concerned; records disclose that: ( 15 ) THE suit O. S. No. 10910 of 1985 was filed by one Dr. Lakshmaiah against the vendor of plaintiff for specific performance on the ground that the original owner Naidu had agreed to sell the entire property No. 4, Millers Road, the suit properties form part of the same. Lakshmaiah against the vendor of plaintiff for specific performance on the ground that the original owner Naidu had agreed to sell the entire property No. 4, Millers Road, the suit properties form part of the same. In answer to the plaint averments while denying the plaint averments she has stated as under: there is a free passage of about 10'-12' in width all along the above said barbed wire fencing starting from the suit premises upto the main gate at the northern end in the corner which is being used only by this defendant and the inmates of her house but also by the plaintiff and his servants from the beginning and that is the only entrance gate for all'". ( 16 ) ACCORDING to plaintiff the 'c' schedule to the plaint corresponds to the said passage referred to which admittedly being used by Lalithamma, should also enure to his benefit though this property is in possession of the defendants-appellants. ( 17 ) IT is difficult to appreciate this contention. Admittedly defendants were not parties to the said suit. Besides the said statement does not indicate that the right of user was available to any third party other than the ones stated therein viz. , the parties to the suit O. S. No. 10910 of 1985. One other important factor which is also relevant in this context is that in the suit O. S. No. 10910 of 1985 the present plaintiff sought to implead themselves by filing an application under Order 1, rule 10 of the Code of Civil Procedure which was allowed by the Trial Court. The said order was challenged in revision before this Court in CRP No. 2367 of 1986. This Court while dismissing the civil revision petition has observed as under: "that if the impleading applicants (plaintiffs in the present suit) claim a right of way in the property they have to work out their right by way of separate suit". ( 18 ) IT is not the case of the plaintiffs that they filed any separate suits against either Lakshmiah or their vendor or the present suit is for declaration of easement. ( 19 ) IT is necessary to state that the claim of the plaintiffs of a 'right of Passage' in plaint 'c' schedule property is a 'claim of easement'. ( 19 ) IT is necessary to state that the claim of the plaintiffs of a 'right of Passage' in plaint 'c' schedule property is a 'claim of easement'. By a reading of the provisions of Easement Act, 1882 hereinafter referred to as 'act' it is clear that the basis of a right of easement is either by a grant made by the servient owner by express terms or may be implied as stated in Section 13 of the easement Act or it may be an acquisition by prescription as provided in Section 15. Apart from this, under certain circumstances it may be on the basis of customary easement that it may be inferred from a long and continued use by a certain class of public as provided under Section 18. ( 20 ) AN easement by prescription cannot be acquired when both the tenaments that is servient or dominant is held or used by a same person. ( 21 ) IF an easement is obstructed, the remedy of the dominant owner is a claim for damages under section 33 of the Act. If there is a threatened obstruction to a easement, the remedy is under section 35 of the Act, for an injunction to restrain the disturbance of easement. ( 22 ) THE plaintiff who files a suit under Section 35 for damages for obstruction of easement or files a suit for injunction to prevent the threatened obstruction has to state by appropriate pleadings the nature of the easement claimed and its basis that is if it is by express grant state the manner in which it was granted by the 'servient owner' or if it is an implied grant state the necessary circumstances and facts by which the grant can be implied. Similarly if it is by prescription, has to state that he has been exercising the right for 20 years, two years prior to the filing of the suit and thereafter state the cause of action and the nature of obstruction to be prevented or if customary easement state the facts necessary to constitute. In other words, the pleadings in this respect must be clear. ( 23 ) I do not find the plaintiff has given these particulars except stating that he has a 'right of passage'. In other words, the pleadings in this respect must be clear. ( 23 ) I do not find the plaintiff has given these particulars except stating that he has a 'right of passage'. In fact even after this Court observed in the civil revision petition referred to above that if the plaintiffs are so aggrieved they can separately file a suit. The plaint does not disclose the facts necessary. Besides as stated it is not the case of the plaintiff that there was any express grant or that the easement was acquired by prescription or that it was a customary easement. However, Sri Prabhu tried to bring it within Section 13 (d) of the Easement Act. Since the learned counsel relied very heavily on the said section and a decision of the Madras High Court in support of it, Section 13 (d) is extracted for ready reference: section 13 of the Indian Easements Act, 1882 reads as under: "section 13.-- (1) Where one person transfers or bequeaths immovable property to another.- (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, been entitled to such easement; (c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement". A close reading of Section 13 (d) and its associated sub-clauses of Section 13 of the Act shows that if certain factual situations exist, the dominant owner is entitled for an easement of necessity or quasi-easement. Section 13 (d) is a case of quasi-easement. A close reading of Section 13 (d) and its associated sub-clauses of Section 13 of the Act shows that if certain factual situations exist, the dominant owner is entitled for an easement of necessity or quasi-easement. Section 13 (d) is a case of quasi-easement. Under Section 13 (d) when a transfer is made of an immovable property, and in the transferred property it was apparent that an easement should have been there for the beneficial enjoyment of the property retained by the transferor, then notwithstanding no express reservation of such an easement, is made transferor is entitled to the benefit of such an easement in the transferred property, in other words where a plaintiff was enjoying an easement (like a right of way) in a portion of the property which he sells to defendant for the benefit of another portion retained by him, then unless the sale restricts such an easement, the plaintiff shall continue to enjoy the same. ( 24 ) A reading of the plaint does not indicate that the plaintiff has based his claim for 'right of way' on this basis: Per contra if the plaint is read carefully the facts stated clearly excludes the application of Section 13 (d) of the Act. According to the plaintiff Lalithamma the original owner first sold to the plaintiff an area of 24,500 sq. ft. on 14-3-1985, while she retained 19,680 sq. ft. which subsequently on 26-6-1989 she sold to the defendants. If Section 13 (d) is to be applied in a fact situation like this, Lalithamma should have been enjoying a 'right of way' in the 24,500 sq. ft. sold to plaintiff for the beneficial enjoyment of the area retained by her at the time of such a sale, which she was entitled to in the lands sold to plaintiff notwithstanding the sale. But not the other way about as contended. e. , to say not a 'right of way' in the property retained by lalithamma, sold to the plaintiff unless, there was an express grant to that effect. Hence, the contention of the learned Counsel Sri Prabhu cannot be appreciated. The decision cited of the madras High Court has no application to the facts of this case, as this was not the question which was the subject-matter for consideration. Hence, the contention of the learned Counsel Sri Prabhu cannot be appreciated. The decision cited of the madras High Court has no application to the facts of this case, as this was not the question which was the subject-matter for consideration. In Govindarajulu Chettiar's case, supra, decided by the madras High Court referred to by the learned Counsel, the question that came up for consideration was whether the absence of express grant of an easement negatives an implied grant of such easement. It was held by the Madras High Court that if there was evidence on record such an implied grant of an easement can be held to exist. ( 25 ) LEARNED Trial Judge in this case has failed to appreciate what is stated above, hence the order granting injunction regarding plaint 'c' schedule property cannot be upheld. ( 26 ) AS stated above it is not the case of the plaintiff that Lalithamma had impliedly granted a right of way over her land. The boundaries in the sale deed relied on by the plaintiff does not prima facie point to the fact of the existence of any passage. No assistance therefore can be drawn from the sale deed. ( 27 ) FOR the reasons stated above, the appeal is partly allowed, and the order of the learned Trial judge granting injunction regarding plaint 'c' schedule property holding that the plaintiff has a right of way in the said schedule property, and the same should not be obstructed is set aside while the order of granting injunction in other respect is upheld. However, it is made clear that any observation made herein shall be construed as made only for the purpose of deciding this appeal and shall not prejudice the rights of the parties to be agitated during trial. ( 28 ) APPEAL partly allowed.