JUDGMENT D. Dash, J. 1. This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Additional District Judge (FTC No. 1), Cuttack in R.F.A. No. 22 of 2007. The respondents had filed Title Suit No. 72 of 2002 in the Court of Civil Judge (Jr. Division) 1st Court, Cuttack for permanent injunction by restraining the appellants (defendant Nos. 1 and 2) from causing any obstruction on the joint passage better described Schedule-D of the plaint by raising any construction over it by putting any gate or in any other manner with further prayer of mandatory injunction directing them to demolish the boundary wall to remove the iron gate at the place on the land described in Schedule-D of the plaint and remove the same from the place within a time frame. The suit having been decreed, the present appellant as the unsuccessful defendants had carried the appeal. That has also not yielded any fruitful result for them. Therefore, they have filed the present appeal under S. 100 of the Code of Civil Procedure. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 2. The plaintiffs case is that the strip of land shown in blue colour in the sketch map annexed to the plaint as a part of it in Schedule-E of the dimension of 12 ft. x 46.7 Inch measuring an area Ac. 0.22 decimals and 8 links under Hal Plot Nos. 1338 and 1339 under Khata No. 599 in Unit-VII, Tulasipur of the town of Cuttack. It is stated that the property originally belonged to George Prasadananda Patnaik. The plaintiffs and the pro forma defendant being the successors in interest succeeded to the same. They transferred Ac. 0.070 decimals as per Schedule-A to Mrs. Helen Felica Wilson and others. The defendant No. 1 purchased Schedule-B property measuring Ac. 0.060 decimals under registered sale deed dated 7-6-2000 and then her husband purchased land of Ac. 0.32 decimals under registered sale deed dated 6-9-2000. They transferred Ac. 0.070 decimals as per Schedule-A to Mrs. Helen Felica Wilson and others. The defendant No. 1 purchased Schedule-B property measuring Ac. 0.060 decimals under registered sale deed dated 7-6-2000 and then her husband purchased land of Ac. 0.32 decimals under registered sale deed dated 6-9-2000. It is the specific case of the plaintiff that at the time of alienation, they also clothes them with the right of way over the suit passage for common use of all of them to have their ingress and aggress from their respective houses to the Municipal road on the western side. It was clearly indicated therein as to the manner of use of the suit passage jointly by them as also the vender to retain their right of ownership over the same and accordingly all these were of reflected in the recitals of the respective sale deeds. It is alleged that the defendants unauthorizedly obstructed the suit passage by putting iron gate at a point and then raised the height of northern boundary wall situated on the said passage at another point as shown in the plaint. The plaintiff had initiated the proceeding under S. 144, Cr.P.C. but in defiance of the order, the defendants stealthily raised boundary wall for which the suit has to be filed. 3. The defendants in traversing the plaint averments besides taking technical objection as regards the lack of cause of action for the suit; maintainability of the suit on the ground that it is for injunction simpliciter; and that it is bad for non-joinder and mis-joinder of parties as also that the suit passage is not properly identifiable so as to non-suit the plaintiffs, have further averred that as per the present situation of the suit passage which was set apart by their vendors at the time of their sale of their lands to the respective purchasers to be used by them and the owners, now there remains absolutely no scope either for those persons or for the vendors to use the suit land which was left as passage for the purpose and in fact they have no necessity for the same. It is stated that they have abandoned said right since long. It is stated that they have abandoned said right since long. It is further stated that since the time of purchase, the respective purchasers are in exclusive possession of their properties adjoining the suit passage and they were earlier using the suit passage as of necessity. But the plaintiffs and pro forma defendant now being not in possession of any land having any opening to the suit passage, they have no right of passage. With boldness, it is admitted by these defendants that they have raised height of the northern boundary wall and fixed the iron grill gate which remains unlocked, covering the suit passage in front of that land left and used as passage and that is said to be for the purpose of preservation and protection of the said land from the hands of the miscreants and hooligans in entering and creating mischief over the suit passage. Thus, they have never caused any obstruction over the suit passage and plaintiffs are neither suffering nor will suffer any loss or injury thereby. It is further stated that the plaintiffs have filed the suit only to harass the defendants with an aim to extract some money so as to satisfy their greed. 4. On such rival pleadings, the trial Court framed eight issues. On going through the pleadings as also the evidence let in by the parties and in view of the admission of the installation of the Iron Gate and obstruction, in blocking the passage and thereby putting an end to the purpose for which it was left by the plaintiffs and their right to use the same as such, the suit has been decreed and the appeal carried by the defendants suffering from the said decree has also been dismissed by the lower appellate Court. 5. The lower appellate Court had formulated three points for determination which are as under:-- (1) Whether the defendants have encroached upon the suit passage and have put obstruction thereon by installing iron grill gate and by raising the northern side boundary wall? (2) Whether the defendants having right of easement of necessity are entitled to encroach upon the suit passage and put alleged obstruction thereon vis-à-vis. the proprietary right of the respondents? (3) Whether the description of the suit passage is indistinct, vague and not identifiable? 6. (2) Whether the defendants having right of easement of necessity are entitled to encroach upon the suit passage and put alleged obstruction thereon vis-à-vis. the proprietary right of the respondents? (3) Whether the description of the suit passage is indistinct, vague and not identifiable? 6. So far the first point is concerned, I find that there was absolutely no necessity for the lower appellate Court to frame it as it stands admitted in the written statement and that too very boldly by the defendants. However, that having been answered in favour of the plaintiffs, all other findings of the trial Court have been affirmed and the judgment and decree impugned in that appeal have thus got the sale of approval as they are. 7. Learned counsel for the appellant now submits the following points:-- (i) That the plaintiffs when are in no way suffering from the said blockage of the passage, the discretionary and equitable reliefs of perpetual and mandatory injunction are not to be granted as prayer for and no decree ought to have been passed therein which only causes hardship to the defendants and its also oppressive; (ii) That the suit with the relief of mandatory and permanent without any relief of declaration is not maintainable, when admittedly the plaintiffs are not in possession. In support of his submission, he has cited the decision in case of Smt. Nani Bala Saha & Anr. v. Smt. Charu Bala Saha and Anr., AIR 1979 Cal 308 ; Lucy Narona v. Raghunath Jew Bije, AIR 1993 Ori. 153 relating to the first point and the decision in case of Sudarsan Prusty v. Rabindranath Prusty, 1989 (1) OLR 379, so far as the second point is concerned. Learned counsel for the respondents submits that there remains absolutely no factual or legal flaw in the judgments of the Courts below. The suit passage having been owned by the plaintiffs which they had endowed for the use of their vendees of adjoining lands to that of the passage as such for approaching the Municipal road from their respective landed house, the question of the plaintiffs succeeding in the suit in removing his obstruction only on proving that they require the same for its use as passage as of necessity has no legal acceptability. It is further submitted that when the passage has been left by the original owners either to one vendor or the other for being used as such none can acquire any right nor can exercise any authority to change its user by causing any sought of obstruction and even though some of the vendees and also the vendor ordinarily do not use that passage, yet any obstruction to it in any manner still amounts to infringement of their right of way. It is next contended that the submission as regards the non-maintainability of the suit is misconceived in the facts and circumstances of this case, as here there remains no dispute with regard to me purpose for which the strip of land was left by the plaintiffs for its use as passage which stands admitted. So, a suit for mandatory and permanent injunction is clearly maintainable to remove the nuisance and prevent its recurrence in future. 8. The suit had been admitted on the following substantial questions of law:-- (a) Whether the learned Courts below was justified in decreeing the plaintiffs' suit even though they have not established the factum of infringement of any of their right resulting in any sort of injury in view of S. 9, C.P.C. read with S. 38 of the Specific Relief Act? (b) Whether the property as described in the schedule of the plaint are in accordance with requirement of O. 7, R. 3 of the Code of Civil Procedure? 9. As is understood from the rival case of the parties, the evidence let it by them in support of their respective case as also the submission advanced in this appeal that the defendants practically want to thwart the suit in declining to grant the reliefs as prayed for by the plaintiffs on the ground that even though a right of easement was there over the disputed property as granted by the plaintiffs and conferred upon the purchasers as also others for having entry to their respective lands so purchased, is no more being exercised by anyone except the defendants and as all have stopped doing so since long by altering their entries and closing their entries to the suit land and it is the only the defendants who are exercising the same. So, the necessity for such easement has vanished for others and it exclusively remains with the defendants. So, the necessity for such easement has vanished for others and it exclusively remains with the defendants. Therefore, it is said that they can use it for the purpose in their own style as they desire. Thus, I feel that one more substantial question of law also arises that is--"Whether easement acquired by grant if can be extinguished on termination of necessity?" There remains no provision in the Indian Easement Act as regards extinguishment of easement as by grant upon termination of necessity unlike the extinguishment of easement of necessity on termination of necessity as provided in the S. 41 of the Act. 10. It has been the settled law that the scope of the grant must be determined by the terms of the contract between the parties. If there is nothing in the terms of the sale deed to limit the grant until such time as the necessity is absolute and if it was not intended that the grant would be limited in the sense contended for by some express provision in the document to that effect that when necessity vanishes the right of easement gets terminated and the property remains absolute in the hands of servant owners, the grant cannot be limited either with regard to use or taken to have extinguished on the ground stated in S. 41 of the Act as in case of easement of necessity. A grant by deed passes indefeasible right to an easement in perpetuity not only against the guarantor and its assigns but against the strangers. The very reason that no provision has been made unlike the provision contained in the S. 41 of the Act in respect of an easement by grant can well be culled out that if any such provision is made which would run against the wish of the grantor which is paramount in the matter of easement by grant which ordinarily cannot be subverted by any statutory provision subject of course to the limitations prescribed in the local laws. It would also encourage unjust enrichment for the servient owner by wearing the two different shoes both as that of dominant owner and servient owner although by such grant he has been given a pair of shoes of only one design and size for both the feet. 11. It would also encourage unjust enrichment for the servient owner by wearing the two different shoes both as that of dominant owner and servient owner although by such grant he has been given a pair of shoes of only one design and size for both the feet. 11. Now, therefore, let's turn to have a glance at terms and conditions of the grant of easement in favour of the defendants under Ext. 4, the sale deed standing in the name of defendant No. 1. While describing the boundary, it has been recited as under:-- "We the vendors sold the above-mentioned property with all interest along with right of way/passage only over the 12 feet breadth of joint passage from the main road to end of this plot, standing in the name of vendors total extent of area of joint passage being Ac. 0.032 dec. shown in blue colour in sketch map which shall stand recorded in the name of vendors in order to avoid future trouble. You the vendee and legal heirs/successors of the vendee shall use it as passage/way and take their vehicle over the joint passage and will avail, electrical connection, telephonic line, water connection in the joint passage and to discharge the dirty water of the house of the vendee to the main drain to the drainage situated over the aforesaid passage without causing any obstruction to the said joint passage in any manner for common use of all residents. In the other sale deed standing in the name of defendant No. 2 Ext. 5 after describing the boundary it has been written xxxxx xxxxx xxxxx xxxx as per the sketch colour.....Here with:-- "We the vendors sold the above-mentioned property with all interest along with right of way/passage only over the 12 ft. breadth of the joint passage from the main road to beginning of this plot standing in the name of the vendors total extent of area of the joint passage being Ac. 0.032 dec. shown in blue colour in the sketch map which portion shall stand recorded in the name of the vendors in order to avoid any future trouble. breadth of the joint passage from the main road to beginning of this plot standing in the name of the vendors total extent of area of the joint passage being Ac. 0.032 dec. shown in blue colour in the sketch map which portion shall stand recorded in the name of the vendors in order to avoid any future trouble. You the vendee and legal heirs/successors of the vendee shall use it as passage/way and take their vehicle over the joint passage and will avail electric connection, telephone line, water connection in the joint passage and to discharge the dirty water of the house of vendee to the main drain through the drainage situated over the aforesaid passage, without causing any obstruction to the said joint passage in any manner for common use of two residents." 12. In view of such express terms and conditions as indicated in Exts. 4 and 5, the question now falls for consideration as to whether the defendants can be given clean chit that they are in no way the wrong dower by blocking the passage at the beginning and using the suit land i.e., the passage left by the venders by amalgamating with their own purchased land and thereby limiting the exercises of rights of easement by all others and let's say only with their desire and at their mercy but not as of right as were then granted to the neighbours and as always available for the vendors. In view of the fact that such clear conditions imposed for the grant by the vendors had been wholly accepted by the defendants their actions as made clearly amounts to causation of nuisance and can never receive the sanction of law. Therefore, the plaintiffs being the vendors have all the rights to maintain a suit for mandatory and permanent injunction. Thus, I find the Courts below have committed no error in granting the reliefs to the plaintiffs in the said suit by directing the defendants for removal of the gate or any sort of obstruction at any point of the said passage and to leave it for user as such and further restraining them from causing any such obstruction in future. The suit as laid is clearly maintainable. 13. The decision cited by the learned counsel for the appellants in case of Sudarsan Prusty (supra) has absolutely no application to the present case. The suit as laid is clearly maintainable. 13. The decision cited by the learned counsel for the appellants in case of Sudarsan Prusty (supra) has absolutely no application to the present case. In the cited case, the title was in dispute and, therefore, when the plaintiff despite of several opportunity did not amend the plaint and insisted to pursue the suit with the relief of permanent injunction simpliciter and the Court felt that the question of title is required to be decided for deciding the grant or refusal of grant of injunction to the plaintiffs, this Court in a second appeal by setting aside the judgment and decree of the Courts below remanded back the suit to the trial Court to give opportunity to the plaintiffs to amend the plaint in the above light and then to proceed for disposal of the suit in accordance with law. I am afraid as to how in the suit for mandatory and permanent injunction for removal of the obstruction caused over the passage infringing the rights of easement of others and for its prevention in future, the ratio of the said decision is attracted and would stand applied to hold the suit as not maintainable. The other decision cited in case of Nani Bala Saha and another ( AIR 1979 Cal 308 ) (supra) has been rendered on a completely different factual setting that it was a case where the defendants were creating disturbance in constructing partition wall and there the defendants did not deny the plaintiff's title to the small passage in the balconies and, therefore, the Court set aside the grant of permanent injunction against the defendants regarding construction of partition of wall on the balcony of all the floors of the disputed houses. Be that as it may, the plaintiffs were directed to remove the wall and the iron gate. The ratio of the last decision cited in case of Lucy Narona ( AIR 1993 Ori 153 ) (supra) has also got no applicability to the case in hand as the facts are quite distinguishable and as such the same does not come to me aid of the defendants. 14. The aforesaid discussion and reasons provide answers to the substantial questions of law including the one which has surfaced during hearing. In the result, the appeal stands dismissed with cost. Appeal Dismissed