In Rameshchandra Bhikhabhai Patel Vs. Maneklal Maganlal Patel and Another[AIR 1986 Kant 456] , it is held that “Easement of necessity would no longer be available when alternative way is available to the claimant of that right”.
where the easement of necessity to the use of lavatory and right of easement over conservancy lane constituting approach to lavatory acquired by previous owner was conveyed to the transferee and the transferee had been deprived of the use of lavatory for a long period of 33 years, it followed that the transferees must have some alternative arrangement to ease themselves which led to the further irrefutable conclusion that the necessity that was there for the transferee to use the suit lavatory was no longer there. When the necessity came to an end, the easement of necessity was extinguished.
Sections 13 and 14 of the Easement Act reads thus:
Section 13. Easements of necessity and quash easements-Where one person transfers or bequeaths immovable property to another-
a. If an easements in other immovable 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; or
b. If such an easement is apparent and continues 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, been 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-
e. 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 the different intention is expressed or necessarily implied, be entitled to such easement.
Section 14. Direction of way of necessity – When a right to way of necessity is created u/s 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.