JUDGMENT : (Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 29.08.1996 made in A.S.No.33 of 1990 on the file of the Sub Court, Nagercoil, confirming the judgment and decree dated 26.06.1982 made in O.S.No.754 of 1980 on the file of the Additional District Munsif, Nagercoil.) 1. Aggrieved over the order of the concurrent findings of the Courts below, the present second appeal is filed. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts, leading to filing of this Appeal Suit, are as follows:- The entire property comprised in Survey Nos.2682, 2903, 2905, 2906 and 2908 to 2911 and 2917/3 of Alagiyapandiyapuram, originally known as Oliver and Black Rock Estate belonged to one Simpson. The First Defendant Company has purchased a portion of the property from the said Simpson and the remaining areas were sold to various persons. The plaintiffs have also purchased an extent of 39 acres from Janaki Pushpam, who purchased the said land from the said Simpson. The plaintiffs have also put up a construction in the estate and raised cloves and other plantation in the entire estate. There is a road namely, Black Rock Road branching eastward from the thirteenth mile of the Blamore Road to the Black Rock Estate. That road runs through various Estates including Devagiri Plantations Limited and Carmalagiri Estate. The Public bridle paths, which were running through the estates were converted into Motorable Roads by the said Simpson for his use and for the use of his heirs and assignees. There was still a public right of way from Thadicarankonam running through Devagiri Estate upto S.Nos.2903, where it bifurcates one branch going south-east to Azhagiapandiyapuram and the other branch going northward to Devagiri Estate Bungalow, then eastwards to Lower Victoria Estate. The right of the way running north from S.No.2903, touches the land owned by the plaintiffs. It has been used by Janakipushpam ever since her purchase from 1967 and subsequently, the plaintiffs are using the road to reach the estates and they have no other alternative way to reach their estates. The defendants are taking hostile attitude and with malafides, the defendants are trying to harass the plaintiffs in using the plaint road and are trying to obstruct them. The defendants are taking hostile attitude and with malafides, the defendants are trying to harass the plaintiffs in using the plaint road and are trying to obstruct them. The plaintiffs are also paying maintenance charges for the road. However, on 30.09.1980, with an ulterior motive, the defendants' servants destroyed the road portion shown as 'A B C D' in the plaint plan and made attempts to prevent the plaintiffs from using the road. Hence, the suit has been filed for permanent injunction. 4. It is the contention of the defendants that originally, the land in Survey No.2917/3 was a Government Tharisu Land and Simpson has no possession of the land. He obtained a decree in O.S.No.88 of 1958, by which he obtained a title to the said property. Out of 650 acres except 95 acres, the said Simpson sold the entire property to the first defendant in the year 1952. Similarly, sold the other properties also to one K.C.Joseph excluding 10 cents, which contains the cemetery of his mother. Thereafter, the said Simpson has no title or possession over any part of Black Rock Estate except a small bid of land occupied by the cemetery. It is the specific contention that the land purchased by Janakipushpam was not the part of the Oliver Estate. The Black Rock Road ends in Tharuvaiyaru Crossing, form where, Devagiri estate commences and no part of the road within Devagiri Estate is called as Black Rock Road and no road runs through the Devagiri Plantation Limited. Hence, it is the contention that the question of conversion of any bridle path into a motorable road did not arise at all. It is true that Simpson has put up a road from Tharuvaiyaru Crossing to tiger cage in the year 1945. It is a fresh road and it is not the conversion of a public road. The roads run through Devagiri Estate and Caramalgiri Estate are only private roads. There is no road from Devagiri Estate Bungalow to Lower Voctoria Estate. The road from the tiger cage to the Devagiri Estate was opened by the defendants in the year 1952 and not by Simpson. This Road does not touch the land owned by the plaintiffs. The plaintiffs' vendor is using the road only with the permission of the defendants. The plaintiffs have no right in the place shown 'A B C D' in the plan. This Road does not touch the land owned by the plaintiffs. The plaintiffs' vendor is using the road only with the permission of the defendants. The plaintiffs have no right in the place shown 'A B C D' in the plan. In fact they had made an attempt to annex the road. They were using the road only as a licensee. Hence, prayed for dismissal of the suit. 5. Based on the above pleadings, the trial Court had framed the following issues:- (1) Whether Mr.Simpson is the owner of the land in Survey No.2917/3? (2) Whether the plaintiffs are entitled to use the road shown in the plaint schedule? (3) Whether the plaintiffs or their predecessor are entitled to use the road by way of easement? (4) Whether the public bridle bath was converted as motorable road? (5) Whether Survey No.2904, belongs to the defendants? (6) Whether the defendants caused damages in the portion shown ad 'A B C D' in the plaint plan? (7) Whether the defendants are entitled to prevent the plaintiffs from using the motorable road? (8) Whether the plaintiffs are entitled for permanent injunction as prayed for? (9) To what other reliefs? 6. Based on the pleadings, on the side of the plaintiffs P.W.1 was examined and Exs.A1 to A32 were marked and on the side of the defendants D.W.1 was examined and Exs.B1 to B43 were marked and Commissioner Report was also marked as Ex.C1. 7. The trial Court after considering the materials and evidences on record, dismissed the suit on the ground that no declaration was sought and the plaintiffs have only permitted the defendants to use the road by collecting license fee. The First Appellate Court had also confirmed the findings of the trial Court. As against the concurrent findings, the present second appeal is filed. 8. While admitting the second appeal, the following questions of law were framed:- (1) Whether the Courts below were correct in construing Ex.B11 as giving only a personal right of way and not running with the land? (2) Whether the Courts below were justified in denying the relief of right of way as it was one of easement of necessity specifically pleaded by the plaintiffs and admitted by the defendants in their written statement in paras 8 and 14 and also in evidence? (2) Whether the Courts below were justified in denying the relief of right of way as it was one of easement of necessity specifically pleaded by the plaintiffs and admitted by the defendants in their written statement in paras 8 and 14 and also in evidence? (3) Whether the Courts below were right in placing reliance on documents and proceedings to which the plaintiffs were not parties? (4) Whether the Courts below were right in denying the plaintiffs claim granted under their documents of title on the basis of their letters in ignorance of their legal rights? 9. The learned counsel appearing for the plaintiffs vehemently contented that the Courts below failed to consider the important documents namely, Exs.A11 and B11 and the Commissioner Report under Ex.C1. It is her contention that originally the property was owned by Simpson, which is not in dispute. The defendants have purchased 550 acres in the estate known as Oliver Estate under Ex.B11. 10. A careful perusal of Ex.B11 makes it very clear that out of 1200 acres, an extent of 550 acres was purchased by the first defendant. A reading of Ex.B11 in entirety makes it very clear that the vendor had right to use the motorable road, which is in existence, through Oliver Estate to the estate known as Black Rock Estate and also the right to use the roads, which are leading from Oliver Estate to Black Rock Estate was retained by the vendor namely Simpson, original owner of the larger extent to the tune of 1200 acres. It is also clarified in the above document that the right to use the road by the vendor including the right to use the road by the successor, assignees and the legal representatives etc., was retained by the original owner of the property. The above documents make it very clear that the roads were existing in the Estate to reach from one part to another part of the estate. The above documents make it very clear that the roads were existing in the Estate to reach from one part to another part of the estate. Though it is the contention of the defendants that the road was available to reach the plaintiffs' property and plaintiffs vendor were using the road as licensee and the plaintiffs have also paid license fee, it is to be noted that the contentions of the defendants that the roads were not available in the Estates at the time of their purchase cannot be countenanced for the simple reason that even prior to the purchase under Ex.B11, there were roads laid by the original owner and he retained the right to use the existing roads that is running from Oliver Estate to the Black Rock Estate. Further, Ex.A25, agreement entered into between the defendant and the original owner also proves the above fact. Therefore, the contention of the defendants that roads were laid by them only after the purchase cannot be countenanced at all. 11. Even in the evidence, D.W.1 has categorically admitted that the plaintiffs' land is situated in the north of the Devagiri Estate. From Devagiri Estate only one can reach to the Black Rock Estate and the above roads were laid only by Simpson. In the cross examination, he has categorically admitted these aspects. 12. Even in the written statement in Paragraph No.5, he has admitted that Simpson, the original owner, had only laid the road from Dharuvayur Motor Cage crossing to the present motor garage, which was originally known as tiger cage in the year 1945. Though it is stated in the written statement that there is no public right of way to any part of Devagiri Estate, all the roads within Devagiri Estate and Caramalagiri Estate are only private roads. It is to be noted that though public had no access to the estates at the relevant point of time, the roads were made only for the use of entire estate. The fact that roads were available for both estates has been clearly admitted not only in the pleadings, but also in his evidence by the second defendant. It is to be noted that though public had no access to the estates at the relevant point of time, the roads were made only for the use of entire estate. The fact that roads were available for both estates has been clearly admitted not only in the pleadings, but also in his evidence by the second defendant. Such view of the facts, now it has to be analyzed that mere paying some amount as licensee fee for the use of the road by the plaintiffs and her predecessor as claimed by the defendants, the right embedded with the land would be taken away?. Admittedly, the plaintiffs have also paid some fees for the use of the road. They also sought permission from time to time to use the road from the defendants. It is the contention of the plaintiffs that they have paid such amount only towards maintenance of the road, whereas in the receipts it has been typed as if, it was a licensee fee. 13. Be that as it may, the fact remains that some fee has been paid for using the road. Even assuming that the plaintiffs were paying license fee as required by the defendants, the right to use the road, which was created by the statute, cannot be taken away by a separate agreement by the parties. The Commissioner report filed before the trial Court clearly indicates that the portions shown as 'A B C D' was obliterated recently. It is relevant to note that the entire estate is owned by original owner namely Simpson. He dealt with the same and sold the properties to various persons. Earlier document of purchase Ex.B11 is of the year 1952 and the same clearly shows that even at the time of purchase of a larger extent, namely 550 acres, there were also existing roads in both estates and Oliver and Black Rock Estates and roads were running from Oliver Estate to Black Rock Estate. The vendor namely, Simpson had retained the right to use the road. Ex.A25 also clearly shows that the defendant has agreed to purchase the properties and the agreement also clearly indicates that roads are in existence for the entire society. 14. It is relevant to refer Section 13 of the Indian Easements Act, hereunder:- "13. Easements of necessity and quasi easements. Ex.A25 also clearly shows that the defendant has agreed to purchase the properties and the agreement also clearly indicates that roads are in existence for the entire society. 14. It is relevant to refer Section 13 of the Indian Easements Act, hereunder:- "13. Easements of necessity and quasi easements. -Where one person transfers or bequeaths immovable property to another,- (a) if an easement in other immovable property of the transferrer 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, be 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. Where a partition is made of the joint property of several persons,- (c) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee." 15. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee." 15. A careful perusal of the said Section, makes it very clear that when the right of easement is necessary for enjoying the property, which was sold to some other parties, transferee or legatee is certainly entitled to such easement for enjoyment of the properties sold to him. The entire estate is one unit. Originally, to reach the entire area, roads were laid by the original owner, one of the predecessor, who has purchased the property. Now, it cannot contend that the roads are private properties and other transferees are not entitled to use the roads to reach their respective portions. Such contention is against the very provision of Section 13 of the Easements Act. 16. Similarly, even when dominant heritage is divided between two or more than two persons, easement right is made to each of the shares divided. Therefore, it cannot be stated that only the person, who have purchased the larger extent alone is entitled to use the existing right in the estate, merely on the ground that some fee has been collected under the pretext of license fee. When the right of easement is annexed with the immovable property, which is created by the statute for the beneficial enjoyment of the transferee from the original owner, such right cannot be taken away easily. Such view of the matter, this court is of the view that finding of the Courts below is not based on proper appreciation of evidence and law. When the rights were already in existence as per Ex.B11, there is no need to seek for declaration separately in respect of such right. Accordingly, the substantial questions of law are answered. 17. In the result, the judgment of the Courts below are set aside and the suit is decreed for permanent injunction as prayed for. No costs.