Judgment : 1. The defendants are the appellants. Suit was for declaration of right of the quasi easement of the plaintiff over a pathway and for consequential injunction against the defendants. Trial court dismissed the suit. In appeal, the lower appellate court reversing the decree of dismissal granted a decree declaring right of quasi easement of the plaintiff over the pathway and also a prohibitory injunction against defendants from causing obstruction to the use of that pathway. 2. Notice had been issued for hearing on all substantial questions of law I of IX formulated in the memorandum of appeal. However, after hearing the submissions of the counsel on both sides, I have reframed the questions of law as hereunder, and heard further arguments on such questions: (i) Whether right of way be claimed as a quasi easement, when any enjoyment over a way being always considered as a discontinuous easement ? and more so when one of the essential conditions of quasi easement right of such easement being continuous ? (ii) Where a right of way along with a share was expressly provided for when that was necessary for the beneficial enjoyment of another sharer in the property partitioned under Ext.B1 has not the lower appellate court went wrong in upholding the claim of way through B schedule property under the deed that too as a quasi easement for enjoyment of ‘G’ schedule. Was the claim of quasi easement available to the predecessor in interest of the plaintiff when her share has also access to the NH like sharers allotted in A,B, C and D of Ext.B1 and not way as claimed in B schedule has been spelt out in the deed ? (iii) Has not the lower appellate court gone wrong in drawing any inference over the existence of a pathway claimed by the plaintiff on the basis of the shape of plaint B schedule property when such shape was the result of division by Ext.B1 and before the division a property allotted in B schedule to Ext.B1 was similarly situated like the rest of the property ? (iv) Whether the finding as to the existence of the pathway along plaint item 3 or any part of plaint item 2 before partition of Ext.B1 sustainable, since item 2 or item 3 had no separate existence prior to the partition deed and access to all portions of the entire property from the National Highway possible from portions of the western boundary? (v) Whether the plaintiff has proved the essential requisites for right of quasi easement pleaded by her? 3. The 2nd defendant/2nd appellant is the power of attorney of the 1st defendant/1st appellant, and his interest is limited only as an agent of the 1st defendant. Declaration of right of quasi easement is claimed by the plaintiff over plaint schedule item No.3 property which formed part of item No.2 property belonging to the 1st defendant. Plaint schedule item No.1 property was purchased by plaintiff under Ext.A1 sale deed. Plaint schedule item Nos.1 and 2 formed part of 94.750 cents of property belonging to one Padmanabhan. After his death that property with another item was divided among his children under Ext.B1 partition deed. His six children were allotted shares in the aforesaid property of 94.750 cents as under schedules ‘A’, ’B’, ‘C’, ‘D’, ‘E’ and ‘G’. His other two children were given their shares in the other property. The above property divided under ‘A’ to ‘G’ schedules had a frontage to the National Highway on its western side. Plaintiff is the assignee of ‘G’ schedule allottee and the 1st defendant, the assignee of ‘B’ schedule allottee. The assignor of plaintiff under ‘G’ schedule got 10.750 cents comprising there shop rooms abutting the national highway on the western side. She sold the northern most and southern most shop rooms to others retaining the middle shop room. The middle shop room with the land on the rear side in ‘G’ schedule, both together, comprising an extent of 8 cents 963 sq. links, was sold to plaintiff under Ext.A1 sale deed. ‘B’ schedule allotted to the sharer thereof is situate on the northern side of ‘G’ schedule. A major portion of ‘B’ schedule is situate to the north and east of ‘G’ schedule with a strip of land protruding from east to west touching the western national highway, as situate on the northern side of ‘G’ schedule. ‘B’ schedule allotted to the sharer thereof is situate on the northern side of ‘G’ schedule. A major portion of ‘B’ schedule is situate to the north and east of ‘G’ schedule with a strip of land protruding from east to west touching the western national highway, as situate on the northern side of ‘G’ schedule. ‘B’ schedule has 16 links long boundary on the side on national highway on the western side. Over the aforesaid strip of land in ‘B’ schedule situate on the northern side of ‘G’ schedule and touching the national highway on the western side an accommodation of way existed and it continued upto the eastern extremity of ‘G’ schedule property when partition of the property was effected under Ext.B1 deed and it continued ever since, was the case of the plaintiff – assignee of a portion of ‘B’ schedule property – to claim the right of quasi easement over such pathway describing it as item No.3 property in the suit. That claim canvassed by plaintiff on the materials placed was found unsustainable by the learned Munsiff who dismissed her suit. However, in appeal, learned Sub Judge re-appreciating the materials on record has upheld the claim declaring the right of quasi easement of the plaintiff over plaint schedule item No.3 pathway. A decree of prohibitory injunction was also passed against the defendants from causing any obstruction to the enjoyment of that way by plaintiff. 4. Solely on the basis of oral evidence tendered by some of the witnesses examined by plaintiff without even appreciating Ext.B1 partition deed in the proper perspective and on a gross misreading of evidence and mis-understanding the lie of the property, learned Sub Judge in appeal has upheld the claim of plaintiff – an assignee over a portion of ‘G’ schedule -, and reversed the dismissed of her suit by the trial court, submits learned counsel for the defendants. Plaintiff has direct access to the national highway situate on the western side from the property assigned in her favour, plaint item No.1, which includes the middle shop room which formed part of ’G’ schedule in Ext.B1 deed, and her claim of easement over item No.2 property belonging to the defendant, ‘B’ schedule in Ext.B1 deed, based on the strip of land forming part of item No.2 on the northern side of item No.1 property, was devoid of any merit, and, the lower appellate court drawing wrong inferences and without even appreciating the essential ingredients to be proved to claim quasi easement, has wrongly granted a decree to the plaintiff and it is liable to be set aside, is the further submission of the counsel. Existence of item No.3 way and its enjoyment as a quasi easement by the predecessor of the plaintiff, a sharer, allottee of ‘G’ schedule, and, later, after assignment of item No.1 in her favour by the plaintiff, is established by the evidence tendered in the case, and as such the decree granted by the lower appellate court in her favour is proper, valid and correct, submits the counsel for plaintiff. Where right of way continued as quasi easement, which has been established over item No.3 property in the case, it is submitted by counsel, shop room in item No.1 Property has access to the national highway would not cause prejudice or disentitle the plaintiff in getting declaration of right quasi easement over item No.3 property. So much so, challenge raised in the second appeal against the decree granted in favour of plaintiff by the lower appellate court is not worthy of any merit, and the appeal is only to be dismissed, is the submissions of the counsel for plaintiff. 5. Sub sections (b), (d) and (f) of section 13 of the Indian Easements Act, 1882, deal with what is called “quasi easement”. Though easement of necessity and also quasi easement arise on severance of tenements by bequest, transfer or partition, in the case of quasi easement it is not so absolute as in the case of easement of necessity, but only qualified. It is an accommodation which existed before severance in the tenement when it continued under common ownership. Generally, it is accepted that right of way will not come under quasi easement since such right depends upon use which could be discontinued. It is an accommodation which existed before severance in the tenement when it continued under common ownership. Generally, it is accepted that right of way will not come under quasi easement since such right depends upon use which could be discontinued. However, an exception may be drawn where a right of quasi easement is claimed when a definite demarcated road has been formed and also establishing of its apparent and continuous use before and after the severance of tenements of common ownership, and its existence as an accommodation earlier when tenement continued to be so. Has the plaintiff in the present case who is shown to be an assignee of a portion of ‘G’ schedule property in Ext.B1 deed establish her claim of quasi easement over item No.3 property which forms part of item No.2 property belonging to the defendants, ‘B’ schedule in Ext.B1 deed, is the question to be examined. As already pointed out, the first and foremost question to be looked into is whether item No.3 property was enjoyed as a right of way when partition under Ext.B1 deed took place and thereafter its continuance as such. Going through Ext.B1 partition deed, what is discernible is that all the sharers who have been allotted shares in 94.750 cents of land, one of the two items partitioned under the deed, have been provided access to the national highway situate on the western side while effecting division of the properties as ‘A’ to ‘G’. Assignor of plaintiff who was allotted ‘G’ schedule got 10.750 cents of land with three shop rooms facing the national highway. Plaintiff got item No.1 property by assignment after her predecessor disposed of two among the three shop rooms; and, what the plaintiff obtained in her deed was the middle shop room with the rest of the property. If at all her assignor had been in enjoyment of any right of quasi easement over item No.3 property that would have found a place in the deed of transfer over the northern most shop room which undoubtedly had close proximity with item No.3 Property. That deed of transfer has not been produced in the case. If at all her assignor had been in enjoyment of any right of quasi easement over item No.3 property that would have found a place in the deed of transfer over the northern most shop room which undoubtedly had close proximity with item No.3 Property. That deed of transfer has not been produced in the case. Only after the northern and southern most shop rooms had been disposed by her assignor, plaintiff obtained the middle shop room with the rest of the land on the rear side covered by ‘G’ schedule, described as item No.1 property in the suit. Where a division had been effected over a property under common ownership providing for access to all sharers to the national highway situate on one side of the property any right over the land of a sharer for use as a way by another sharer, that too as quasi easement, contending that such an accommodation existed earlier, necessarily, requires unimpeachable evidence. What could be seen from the description of item No.2 property, ‘B’ schedule in Ext.B1 deed, is that the narrow strip of land lying on the northern side of ‘G’ schedule and forming part of ‘B’ schedule had been provided to the sharer of that property to have access to the national highway situate on the western side. There is absolutely no evidence in the case that at the time when the tenement continued under common ownership there existed a well formed road through the above narrow strip of land in ‘B’ schedule, which is absolutely necessary to establish an exception to the general rule for claiming quasi easement which, as already indicated, cannot be set up over a way, the user of which could be discontinued. Not only the existence of a well formed road when the tenement continued under the common owner ship, but its continuous use before and after is required to be established to claim such a quasi easement over a way. What we have in the present case leaving apart the oral evidence tendered through witnesses where Ext.B1 partition deed does not spell out any existence of road as forming part of ‘G’ schedule, leave alone of any accommodation existing previously, is a commission report obtained immediately on filing of the suit. That was an ex parte commission. Ext.C1 is the report and C2 the mahazar. That was an ex parte commission. Ext.C1 is the report and C2 the mahazar. Commissioner who did not carry out any measurement of the property, without even seeing the documents relating to the previous assignments made by assignor of plaintiff over the two shop rooms already sold by her, has concluded that the northern shop room is having its northern boundary with item No.2 Property. So far as item No.3 property described as a pathway over which the plaintiff has claimed right of quasi easement report of the commissioner is to the effect that since item No.2 property is lying as a garden land, there is no visible sign of anybody using the portion as a pathway. At the same time, he would say the portion described as item No.3 forming part of item No.2 is lying as a pathway. In this connection it is also to be noted that description of item No.3 property claiming a right of quasi easement of way by plaintiff is not confined to portion of item No.2 property from the western national highway up item No.1 property, but, extending upto the eastern boundary of item No.2 property. The commissioner has reported that in some portions of the southern boundary of item No.2 property touching item No.1 property of the plaintiff, a boundary wall is in existence. Such boundary wall could have come into existence only after division of the property under Ext.B1 deed, which is also clearly indicative that the narrow strip of land forming part of ‘B’ schedule under Ext.B1 deed was provided to its sharer to have access to the national highway situate on the western side. Where all other sharers had been provided with such access, the strip of land forming part of ‘B’ schedule too provided such access to its sharer, with Ext.B1 deed silent about the existence of a prior accommodation over the strip of land as a way, is not only indicative but conclusive that carving out of that strip of land when division was effected as part of ‘B’ schedule was only to provide access to the share of the property. Case of the defendant that he permitted the plaintiff to take building materials though the strip of land described as item No.3 property to her property situate behind her shop room for construction of a building and that has been taken advantage to file the present suit, in the given facts of the case, cannot be brushed aside as untrue. 6. Plaintiff, assignee of a portion of ‘G’ schedule property, that too under an assignment deed of 1994, has sought for declaration for right of quasi easement over item No.3 property forming part of item No.2 setting forth a case that it existed as a way and was enjoyed as an accommodation when the plaint schedule properties formed part of a common tenement and later devided into separate plots under Ext.B1 partition deed. Suit was filed even without producing a copy of Ext.B1 partition deed speaks in volumes that the claim of existence of such an accommodation in the common tenement before division under Ext.B1 deed and its continuous enjoyment by her assignor and later by her, has no merit. Even the description of property assigned under Ext.A1, which formed part of ‘G’ schedule in Ext.B1 deed allotted to her assignor, negative the right of quasi easement claimed over item No.3 Property by plaintiff. Description of property in Ext.A1 deed would show that plaintiff got assignment of 8 cents and 963 sq. links of property comprising a shop room with ownership right over the northern boundary and one half right over the southern boundary wall of the property. Northern boundary wall of the above property over which ownership right was conferred under the deed is the boundary wall separating item No.2 property belonging to the defendant. Where a specific and unequivocal conferment of ownership over that boundary wall to is made favour of the plaintiff under Ext.A1 deed it is only reasonable to hold that if at all the assignor enjoyed any right of quasi easement over a way, described as item No.3 in the suit, which formed part of item No.2 property, and situated beyond such boundary wall, it would have been given expression to in the assignment deed. Oral evidence in the case through witnesses including that of her assignor would not assist the plaintiff where Ext.B1 deed and also Ext.A1 assignment deed taken by plaintiff clearly demonstrate falsity of the claim of quasi easement set up over item No.3 property which formed part of item No.2 property belonging to the defendant. The lower appellate court on the basis of the oral evidence without appreciating the material circumstances presented in the case including those presented by the documents, has gone wrong in interfering with the dismissal of suit by the learned Munsiff. Decree granted in favour of the plaintiff upholding the claim of easement and injunction passed against the defendants is wholly unsustainable. 7. Substantial questions of law raised as (i), (ii) and (v) are answered in favour of the appellants/defendants and the other questions of law as (iii) and (iv) do not arise where the claim of quasi easement canvassed by plaintiff over item No.2 property is found not established in the case. The decree and judgment passed by the lower appellate court in favour of the plaintiff are set aside and the decree of dismissal passed by the learned Munsiff is restored. Suit filed by plaintiff shall stand struck off from the file of the court. Appeal is allowed with costs of the defendants realizable from the plaintiff.