Mariyayi Ammal and others vs Arunachala Pandaram

Krishnaswami Nayudu, J.—The defendants are the appellants. The suit was for a permanent injunction restraining the defendants from using

a passage in front of the plaintiff''s house to go to the south into the public lane running from west to east. It may be convenient to refer to the

Commissioner''s plan Ex. A.6, for the purpose of location of the plaintiff''s and defendant''s houses and the disputed passage.

The site over which the houses of the plaintiff and the defendants stand was previously owned by a common owner, and on 2-11-1942, under Ex.

A.1, the plaintiff purchased the southern most portion, the entire Property being divided into three portions, the northern, the middle and the

southern, and began to put up a house construction on the property which he purchased leaving the disputed passage on the eastern side of a width

of 5 to the entire length of his house and running from north to south open.

The defendants purchased on 1-12-1944, under Ex.B. 2 the northern portion and put up house constructions in the portions which they

purchased, leaving similarly a lane running from north to south entering into the public road on the north. The defendants again on 14-12-1944,

purchased the middle portion and put up constructions leaving again a lane of the same width in front of their house on the eastern side.

The right of the defendants to use the disputed passage was put on two grounds: firstly, the right of way through the disputed passage marked

EFDC in front of the plaintiff''s house of the width of 5'' on the eastern side and running from north to south was a right acquired by prescription,

and secondly, that in any event, it is an easement of necessity, a right which the defendants are entitled to exercise.

The contention based on acquisition by prescription was given up and arguments were confined only to the defendants'' right to use the passage as

an easement of necessity. But the courts held that the easement of necessity had become extinguished under S. 41, Easements Act, as in their view

the necessity had come to an end. The view taken by the lower appellate court is that the passage, which is sought to be required for being used as

an access to go into the public lane on the south, was allowed to be used as such to enable the defendants to enter the public lane on the south.

The trial court however found that there was another means of access to the public lane on the south, since the defendants could go through the

lane reserved by them in front of their house, go north and enter the public lane on the north, which runs from east to west, and then get into the

main road, which proceeds from north to south, and then come into the public lane on the south.

It may be mentioned that the northern, western and southern boundaries of this block of houses are, a public road on the north, main road on the

west and a public lane on the south, and it was therefore argued that since there was no absolute necessity for the passage to reach the south lane,

which can be reached by proceeding to the north and then through the main road, the necessity must be deemed to have come to an end and as

such it must be held that the easement had become extinguished.

Mr. Vishwanath Aiyar, however, argues that the necessity to get into the southern lane through this passage, which is admittedly the most

convenient means of access to the southern lane, cannot be said to be extinguished on the ground that the same lane could be approached through

other means, because the right which the defendants have in respect of the easement is a right in respect of the disputed passage to enter into the

southern lane and it cannot be varied or modified and it is not open to the plaintiff to direct the defendants to proceed by other ways which might

reach the southern lane.

In order to appreciate this contention, it is necessary to understand what an easement of necessity is. An easement of necessity is not as such

defined in the Act, but Sec. 13 deals with an easement of necessity or quasi-easements. Section 13 says that when one person transfers or

bequeaths immoveable property to another, under Cl. (a) if an easement in other immoveable 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.

Similarly there are provisions for apparent, continuous and necessary easements, and all these rights are said to arise on transfer or bequest of

immoveable property. In the present case, it might be contended that since all the properties were previously owned by a common owner, on the

transfer of the respective properties now in the possession of the plaintiff and the defendants, the right which one party would get over the

property, in respect of which he has obtained a transfer, will continue to subsist but that right must be one which is necessary for enjoying the

subject of transfer.

There is a clear exposition of what is easement of necessity in Peacock on Easements, 3rd Edn, at page 20 and onwards, and the following

passages therefrom may be extracted:

An easement of necessity is a right which an owner or occupier of land must of necessity exercise on over, or in another''s land for the enjoyment

of his own.

The most ordinary instance of an easement of necessity arises where a man is unable to obtain any access to, or derive any benefit from, his own

land without a right of way over his neighbour''s land.

The general rule as to a way of necessity is given by Mr. Sergeant Williams in his notes to the well-known case of Pomfret v. Ricroft, 1569 1

WS 321 (A).

So when a man having a close surrounded with his own land grants the close to another in fee for life or years, the grantee shall have a way to the

close over the grantor''s land an incident to the grant; for without it, he cannot derive any benefit from the grant. This principle seems to be at the

foundation of that species of way which is usually called a way of necessity.

Coming to the India Act, the author observes:

Clauses (a), (c) and (e) of S. 13 of the Indian Easements Act, deal with easements of necessity, and provide that they can arise in favour of either

the transferee of the dominant tenement or the transferor of the servient tenement, according as the dominant or servient tenement is transferred, or

retained, as the case may be, and this is the same under general law.

With reference to this clause of Easements, it is important to remember that they are not founded upon a more convenient or advantageous use of

the dominant tenement, but upon absolute necessity as meaning that the dominant tenement could not otherwise be used at all.

That the necessity should be absolute seems consistent with the designation of the right and the requirements of reason.

For it may fairly be said that if a man is to have an obligation exacted from him whereby, as may be seen from the foregoing illustrations of

easements of necessity, his land suffers detriment, and he himself is put to inconvenience, annoyance, and even loss, such obligation ought only to

be permitted as a matter of necessity.

It has been mooted whether this rule might not be relaxed in India whenever, for reasons of caste or religion, the existence of only one way would

be productive of extreme inconvenience. But there has been no actual decision in India that the general principle above stated ought in particular

circumstances to be departed from.

Since the right relied by the defendants is an easement of necessity and not an easement acquired by prescription, it must be shown that without

the use of this passage the enjoyment of the property becomes impossible, i.e., it must be established that there is no other means of access into the

southern lane and it cannot be pleaded that the disputed passage is a mora convenient means of access to the southern lane.

Unless it is shown that the southern lane becomes absolutely inaccessible by an injunction being granted, there can be no right founded on an

easement of necessity, however inconvenient may be the access which they may have to the southern lane than the one which they could have by

using the disputed passage.

The contention that an easement once having been established cannot be varied or modified may apply to the extent and scope of the easement

of necessity but not to the continuance of an easement of necessity in case it is established that the dominant owner had acquired property or

acquired other means of access which was reached previously through the disputed passage. Necessity in the sense of being indispensable must be

established and without which the property could not be enjoyed at all or without which there can be no access to the southern lane. Such is not

the case here.

It may be inconvenient to proceed to the north, go to the public road, then enter the main road on the west and then reach the southern lane. But

that is no consideration why the defendants should be allowed to put the plaintiff to inconvenience and annoyance, when the right which the

defendants claim has not been acquired by prescription.

The necessity must be an absolute necessity and not a convenient mode of enjoyment of the property and that is also the view taken in (Saripella)

Venkatapathiraju and Others Vs. (Saripella) Subbaraju and Another, , where it was observed that an easement of necessity is an easement without

which the property cannot be used at all & not merely one for reasonable enjoyment of the property and that in considering questions of easements

of necessity convenience is not the test but absolute necessity.

In that view I consider that the lower courts have come to the correct conclusion on the application of S. 41, Easements Act. It may be that if

the defendants had acquired this right of way by prescription, the existence of an alternate means of access, viz., through the public road on the

north and then through the main road on the west, would not bar them from contending that notwithstanding any such alternate access, they would

be still entitled to the disputed right of way.

But that is not the position in the present case, as the defendants have failed to establish the right as having been acquired by prescription, the only

basis for the claim being that it was an easement of necessity. I am unable to find how it can be held that when a person has got other means of

access, the use of a neighbor''s property is the only way of enjoying his property.

The result is, the second appeal fails and is dismissed with costs. No leave.