Judgment :- Tarun Kumar Gupta, J. This second appeal is directed against the judgment dated 17 th February, 1998 passed by the learned Civil Judge (Senior Division), Sealdah in Title Appeal No.59 of 1997 reversing the judgment dated 30 th May, 1997 and decree thereof passed by the learned Munsif 3rd Court at Sealdah being Title Suit No.65 of 1987. The plaintiff filed a suit alleging that he purchased the suit property from one Uday Kumar Gupta through a kobala dated 22 nd February, 1983 including the 4 feet passage running north to south. The contiguous west plot being portion of the premises No.10/1, Gobinda Khatick Road is the property of defendant No.1. The 4 feet common passage running from north to south, was plaintiffs’ absolute property through said purchase and defendant No.1 had no right over the same. As the defendants are trying to encroach on said passage claiming to be common passage the plaintiff was compelled to file the suit for declaration and injunction. The defendants / respondents contested said suit by filing a written statement. It was contended inter alia that the defendant No.1 was the owner of plot No.10/1/C (old plot No.10/1) Gobinda Khatick Road to the contiguous east side of the plaintiffs land. The vendor of both the parties was same. The defendant No.1 purchased said plot of land along with the right to use the disputed 4 feet wide common passage as a passage for going to the public pathway and that except the suit passage the defendants had no other pathway to come to the public pathway. The plaintiff was not the absolute owner of the common passage and the suit was liable to be dismissed. After contested hearing learned trial court decreed the suit by observing that the disputed suit passage was absolute property of the plaintiff and that the defendant being a subsequent purchaser cannot claim any right over the said passage which was sold to the plaintiff by their common vendor at an earlier point of time. Being aggrieved, the defendants preferred an appeal which was allowed after contested hearing by observing that the disputed passage was a common passage and that the plaintiff was not entitled to get any decree as prayed for. The title suit was accordingly dismissed. Being aggrieved, plaintiff has filed this second appeal. Being aggrieved, the defendants preferred an appeal which was allowed after contested hearing by observing that the disputed passage was a common passage and that the plaintiff was not entitled to get any decree as prayed for. The title suit was accordingly dismissed. Being aggrieved, plaintiff has filed this second appeal. At the time of admission of this appeal, the following substantial question of law was formulated by the Division Bench vide order dated 15th July, 1998:- “Whether the court of appeal below erred in law in dismissing the entire suit of the plaintiff / appellant by reversing the judgment and decree of the learned trial court although it was held that passage in suit was a common passage.” Mr. Jiban Ratan Chatterjee, learned senior counsel appearing for the plaintiff / appellant, submits that plaintiff purchased the suit property including the passage from his vendor Uday Kumar Gupta through a purchased deed dated 22.02.1983. According to him, the plaintiff purchased 1 cottah 8 chittaks and 24 square feet of land including said 4 feet wide common passage in holding No.202 / 257 at premises No.10/1 (old) which is presently renumbered as 10/1-C, Gobinda Khatick Road. Mr. Chatterjee further submits that in the purchase deed of the plaintiff (exhibit-1) it was specifically mentioned that the common passage was included in the plaintiff’s purchased property. He next submits that from the report of the learned Commissioner (exhibit-2) it is apparent that the suit passage was included in the purchased property of the plaintiff. According to him defendant purchased other portion of the premises No.10/1 (old) which was also renumbered as 10/1-C measuring about 1 cottah from the common vendor through a kobala dated 24.06.1983. According to Mr. Chatterjee, as the vendor already sold out the disputed passage to the plaintiff through the plaintiff’s purchased deed dated 22.02.1983, said vendor had no authority to give any right of passage to the defendant No.1 being subsequent purchaser, for using said passage as a common passage. Mr. Chatterjee submits that even if any such right was given to the defendant No.1 by his vendor said right had no basis and hence the same was in-operative in law. Mr. Chatterjee submits that even if any such right was given to the defendant No.1 by his vendor said right had no basis and hence the same was in-operative in law. According to him, learned lower appellate court was swayed more by sentiment than by any proposition of law to hold that the suit passage was a common passage and that the defendant No.1 was entitled to use the same. Mr. D. S. Mallick, learned advocate for the defendants / respondents, on the other hand, submits that it came out from the report of the Commissioner that the disputed passage running from north to south extended up to the holding of the defendants to its south and that the defendants / respondents had no pathway other than the suit pathway to come to the main public road i.e., Gobinda Khatick Road. He further submits that the disputed passage was the only pathway through which one can come from the house of the defendants to the wider common passage and then to the Gobinda Khatick Road. According to him, the defendants and before defendants the original vendor of the parties used to use the suit passage as a common passage. He next submits that even in the plaintiff’s purchased deed said passage was described as common passage and in the plan annexed to the plaintiff’s purchased deed the passage was not included in the purchased property (coloured red in said plan) of the plaintiff. According to him, even the total area of the plaintiff’s property (red coloured) and the suit passage exceeded the area of land purchased by the plaintiff through his deed dated 22.02.1983. In this connection, Mr. Mallick refers to the principles of easement of necessity. According to him, learned lower appellate court was justified to hold that the suit passage was the only passage through which one can come out from the property of the defendants / respondents for going to the public pathway and that defendants / respondents were using the same as an easement of necessity. In this connection he refers case laws reported in 1982 (2) CHN 311 (para 10 & 11), 39 CW N 1202 and AIR 2007 Orissa 12 (para 8). In this connection he refers case laws reported in 1982 (2) CHN 311 (para 10 & 11), 39 CW N 1202 and AIR 2007 Orissa 12 (para 8). The admitted position of the case as it is gathered from the submissions of learned counsels of the parties as well as from the materials on record may be summarized as follows: (1) One Uday Kumar Gupta, common vendor of both plaintiff and defendant No.1, purchased land with structures in holding No.202/257 in Division – 4 Sub-Division –I at Mouza Gobra P.S. Entally at premises No.10/1 (old) later on renumbered as 10/1-C Gobinda Khatick Road, District 24 Pgs. from his vendor through a kobala of 1979. (2) said Uday Kumar Gupta divided said land into two plots namely A and B with different measurements having structures on both. Uday Kumar Gupta sold out the plot A measuring about 1 cottah 8 chittaks 24 square feet to the plaintiff by a kobala dated 22nd February, 1983 (Ext.2). (3) Sri Uday Kumar Gupta sold out remaining portion namely B plot with structures thereupon measuring about one cottah to defendant No.1 on 24th June, 1983 with the right to use four feet wide common passage running from north to south appertaining to and comprised in holding No.202/257 in Division – 4 Sub-Division –I at Mouza Gobra P. S. Entally of Premises No.10/1 (old) being renumbered as 10/1-C Gobinda Khatick Road, District 24 Pgs (Ext.A). (4) Defendant No.1 sold said one cottah of land purchased from Uday Kumar Gupta together with some other lands in premises No.10/1/A total measuring about one cottah 8 chittaks to the other defendants with a right to use four feet wide common passage on the north running from south to north appertaining to and comprised in holding No.202/257, Division – 4, Sub-Division – I at Mouza Gobra P. S. Entally at premises No.10/1 (old) renumbering as 10/1-C Gobinda Khatick Road, district 24 Pgs. (5) One survey passed advocate Commissioner was appointed to relay the plaintiff’s purchased deed dated 22.02.1984 and to measure with reference to A schedule property and the disputed passage described in B schedule of the plaint to ascertain whether the disputed passage was included in the plaintiff’s purchased kobala and also to ascertain whether the defendant had its entrance from the main Gobinda Khatick Road on the west. Said Commissioner held commission work in presence of the parties and submitted report dated 22.08.1988 along with map which was marked exhibit –1 collectively. The main points for consideration before the learned courts below were whether the B schedule suit passage was within the purchased property of the plaintiff or not and if the answer is in the affirmative whether the defendant has a right for using of said B schedule suit passage as a common passage being an easement of necessity. In the plaintiff’s purchased deed dated 22nd of February, 1983 (Ext.2) it appears that the vendor Uday Kumar Gupta sold out all that piece and parcel of the land with a structure marked plot ‘A’ measuring about 1 cottah 8 chittaks 24 square feet including four feet wide common passage appertaining to and comprised in holding No.202/257 in Division – 4 Sub-division – I at Mouza Gobra P. S. Entally at premises old No.10/1 new number 10/1-C Gobinda Khatick Road district 24 Pgs. fully mentioned and described in the schedule hereto and coloured red ……(page 5 of the deed). In the schedule of said deed at page 8 it was stated as follows:- “ALL THAT piece and parcel of Kheraji land with a structure measuring more or less 1 cottah 8 chittaks 24 Sq. ft. with 4 feet wide common passage being the divided plot ‘A’ lying at Mouza Gobram, P. S. Entally, S. R. O. Sealdah, Touzi No.283, Holding No.202/257, Division – 4 Sub-Division – I, including all rights, title, interest and easement right situate and right to the 4 feet wide common passage running from North to South as marked and bordered red in the annexed plan at premises old No.10/1, new 10/1/C Gobinda Khatick Road, P. S. Entally, Gobra Village Collectorate 24 –Parganas within the municipality limits of Corporation of Calcutta, with every right to bring electric and water connection through the common passage, and constructing drains thereof. Butted and bounded as delineated as per plan annexed herewith marked red. Butted and bounded as delineated as per plan annexed herewith marked red. On the North :: By common passage On the South :: By premises No.10/1C, Gobinda Khatick Road On the East :: By 7 /F, Tangra 2nd Lane On the West :: By premises No.10/1A & 10/1B, Gobinda Khatick Road.” [Emphasis added] From the annexed plan of the plaintiffs purchased deed, it appears that the four feet wide passage lying to the west of plaintiff’s land was not marked red. It is true that the learned Advocate Commissioner on relayment of plaintiff’s purchased land observed that the suit passage (B schedule property) measured 120 square ft. and that ‘A’ schedule property measured 1020 square feet and that total area of said ‘A’ schedule and ‘B’ schedule properties measured 1 cottah 9 chittaks 5 square feet i.e., 36 square feet of land more than the land as described in the purchase kobala of the plaintiff. According to the learned Commissioner the suit passage (B schedule property) was within the purchased land of the plaintiffs through Ext.2. The learned lower appellate court held that when there was a plan with the deed of conveyance, the area of land should be taken into account what is mentioned in the plan and not as described in the body of the kobala. According to the learned lower appellate court as ‘B’ schedule passage was not included in the plan annexed to the plaintiff’s purchase deed it was not within the purchased property of the plaintiff. He further observed that had said passage been included in the purchased deed of the plaintiff then the same would not have been described as common passage in the plaintiff’s purchased deed. I find much force in the aforesaid observation of learned lower appellate court. If said passage (‘B’ schedule property) was really included in the purchased property of the plaintiffs then it would not have been mentioned in the schedule of said deed (at page 8) that the plaintiff’s purchased lands including all rights, title, interest, and easement right and right to the 4 feet wide common passage running from north to south……with every right to bring electric and water connection through the common passage and constructing drains thereof. If the passage i.e., ‘B’ schedule property was within the purchased property of the plaintiffs then there was no need of mentioning those rights of bringing electric and water connection through the 4 feet wide common passage. In that case the passage would not have been described as common passage. In case of purchase of the passage, plaintiff would have been able to bring water connection, electric line etc. through said passage as a matter of right. It is true that the learned Advocate Commissioner was of the opinion that the common passage was within the purchased property of the plaintiffs in view of the measurements made by him but the schedule of the plaintiff’s purchased deed spoke otherwise. Apart from that a deed has to be read as a whole. Even if the common passage was found to be included in the purchased property of the plaintiffs still the plaintiff was not entitled to get a decree as prayed for. It came out from the report of the learned Advocate Commissioner (Ext.1) as well as from the other evidence on record that the suit passage was the only pathway through which one can come out from the property of the defendants to the main public road. It also came out that the suit passage was used even after sale of the property to the plaintiff by plaintiff’s vendor and thereafter defendant No.1 and lastly the present defendants as purchasers of the property lying to the adjacent south of plaintiff’s property. The Indian Easements Act, 1882 has no application in the State of West Bengal, but the principles of said act are squarely applicable. When by a transfer, bequeath or partition a single tenement is divided into two or more separate and distinct tenements, and any of these tenements (whether transferred or reserved) is so situated that it cannot be used at all without the enjoyment of a certain privilege on any other of such tenements, the law presumes the implication of a grant or reservation of such privilege in favour of the person holding such tenements. The right thus implies is known as easement of necessity. This principle is aptly applicable in the facts and circumstances of this present case. The right thus implies is known as easement of necessity. This principle is aptly applicable in the facts and circumstances of this present case. Here also the original vendor Uday Kumar Gupta divided his single tenement into two namely part ‘A’ (sold to the plaintiff) and part ‘B’ (later on sold to the defendant No.1). It came out that part ‘B’ property had only one way i.e., the suit passage through which one can go from said part ‘B’ property to the public road. As such, the owner of the part ‘B’ property has a right by way of easement of necessity to use the suit passage for going to the public thoroughfare. The case laws referred by learned counsels for the defendant respondent were on the point of creation of easement of necessity by implied grant in case of severance of tenements. In view of the discussions as made above I am of the opinion that learned lower appellate court did not commit any wrong by declaring that the suit passage was a common passage and that it was not included in the purchase deed of the plaintiff appellant. However, it is correct to say that when plaintiff alleged that the defendants were trying to encroach upon said passage and when it is found that said passage was a common passage being used by both plaintiff and defendants then learned appellate court should not have dismissed the plaintiff’s suit altogether. Learned lower appellate court should have declared plaintiff appellant’s right, title and interest over ‘A’ schedule property and should have declared the ‘B’ schedule property as a common passage restraining the defendants from encroaching any portion of the common passage. Accordingly, the appeal is allowed in part. The plaintiff appellant does get a decree declaring her right, title and interest and possession over ‘A’ schedule property with a further declaration that the ‘B’ schedule property is a common passage. The defendants are hereby restrained permanently from making any encroachment over any portion of either ‘A’ schedule or ‘B’ schedule property. A decree be drawn up accordingly. However, I pass no order as to costs. Send down lower court records along with a copy of this judgment to the lower court at the earliest. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.