An easement of way claimed as a way of necessity can only be created where there is an absolute necessity for it

It is a well-established principle of law that a man cannot acquire a way of necessity, if he has other means of access to his land, however inconvenient, it may be, then by passing over to his neighbors soil. An easement of way, claimed as a way of necessity, can only be created where there is an absolute necessity for it, and not when there is a possibility of finding out another way, though at a greater expense. Under the provisions of Section 13 of the Easements Act, 1882 [hereinafter called as “the Act” for short], a right of easement has been conferred under the provisions and in a case where a partition is made of the joint property of several persons, 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. Even otherwise, if an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, a person who has been granted share is entitled to such easement.

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : A.S. Pachhapure, J )

SHIVAPPA AND OTHERS — Appellant

Vs.

D.N. ESHWARAPPA AND HORAKERAPPA — Respondent

Regular Second Appeal No. 567 of 2010

Decided on : 09-08-2012

Easements Act, 1882 – Section 13
Easements Act, 1882 — Section 13 — Declaration of an easement — Whether the Courts were justified in granting a decree on the basis of easement of necessity when there is an alternative road to reach the property of the plaintiff? — If an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, a person who has been granted share is entitled to such easement

Counsel for Appearing Parties

D.R. Nagaraja, for the Appellant; B.M. Siddappa, for R1. R2 served, for the Respondent

JUDGMENT

A.S. Pachhapure

1. The Judgment and Decree of the trial Court, granting relief of declaration of an easement of necessity and consequent injunction, confirmed in the appeal is challenged before this Court by the appellants, who are defendant Nos. 1 to 5 before the trial Court. The facts relevant for the purpose of this appeal are as under:

The parties are referred to as they were referred in the original proceedings, for the sake of convenience.

The appellants herein are defendant Nos. 1 and 5 and respondent No. 2 is defendant No. 6 in the suit instituted by respondent No. 1 i.e., plaintiff No. 1, seeking the relief of declaration that the cart-track “A,B,C,D,E” shown in the hand-sketch is an easement of necessity and for an injunction, restraining defendant Nos. 1 to 5 [appellants herein] from causing any obstruction in use of the said easement. The plaintiff is the elder brother of defendant No 7, defendant Nos. 4 and 5 are the younger brothers of defendant No. 3 and defendant Nos. 2 and 6 are the neighboring land owners.

The land bearing Sy. No. 271 of Talya village is admittedly an ancestral property of the plaintiff, defendant Nos. 3 to 5 and 7. The said property was divided in the year 1974-75 and the plaintiff got his share of 2 acres 5 guntas of land. Out of Sy. No.271/P, defendant No. 7 was granted 2 acres 6 guntas of land on the northern side of the land of the plaintiff. Prior to the division, the parties were taking their cattle and using the road shown as “A,B” in the hand-sketch, which runs east-west on the northern side of Sy. No. 271. The road “A,B” shown in the suit sketch was in use for more than 50 years prior to the suit. To reach the said road from point “D” in the land of the plaintiff, parties were using the road through point “C to reach “A,B” road. Except the said road, the plaintiff had no other way to reach “A,B” road. The said track was being used by the plaintiff to reach his land and to bring the agricultural implements including cart for better enjoyment of his land. As there was obstruction in the use of this road, the plaintiff instituted the suit for the aforesaid reliefs. Along with the plaint, he has also produced the sketch, which reveals “A,B” road on the northern side and also the track “B,C,D” commencing from the land of the plaintiff.

Defendant No. 7 filed his written statement, which was adopted by defendant Nos. 1 to 4 and 6, denying the allegations made and also the existence of the road “A,B” and use of the track “B,C,D” inter alia contending that there is no road used by the plaintiff through the point “B,C,D” and disputed the existing road at point “A,B’. In support of the contentions raised in the written statement, he also produced a rough sketch, wherein it is contended that there is a separate road from the land of the plaintiff towards the southern side passing through the land of Sri. D.N. Shankrappa and 15 ft. wide road has been left by the parties to reach the hill road, shown in the sketch. So, the defendants contended that the road, which is on the southern side of the land of the plaintiff is in use by all the neighboring land owners and disputing the road “A, B” on the northern side and at the point “B,C,D” in the sketch of the plaintiff. In addition to this contention raised denied all other allegations and sought for dismissal of the suit.

The trial Court framed the issues. The plaintiff examined himself as P.W. 1 and 2 witnesses P.Ws. 2 and 3. In their evidence, documents Exs. P1 to 10 were got marked. Defendant No. 7 himself examined as D.W. 1 and 2 witnesses D.Ws. 2 and 3. In their evidence, documents Exs. D1 to 14 were got marked. During the pendency of the suit, an advocate was appointed as a Commissioner to inspect the property and to submit his report along with sketch. The Commissioner was examined as C.W. 1. The documents relating to execution of the Commissioner work have been marked as C1 to C8. The trial Court. After hearing learned counsel for the parties and on appreciation of the material, decreed the suit granting the relief of declaration and injunction. An appeal in R.A. No. 37/2004 preferred by defendant Nos. 1 to 4 and 7 is also dismissed on merits. Aggrieved by the concurrent findings of the Courts below, the present appeal has been filed.

2. This Court vide Order dated 29.09.2010 has raised the following substantial question of law for consideration:

Whether the Courts were justified in granting a decree on the basis of easement of necessity when there is an alternative road to reach the property of the plaintiff?-

3. I have heard learned counsel for the parties.

4. It is the contention of learned counsel for the appellants that on the southern portion of the land of the plaintiff, 15 ft. wide road has been kept apart from the partition to reach the hill road. Further, he contends that when the plaintiff has been using this road to reach the hill road, the question of using the cart track at the points “B,C,D” to read “A,B” road does not arise for consideration. He claims that when a road is already provided to the plaintiff as aforesaid, the question of easement of necessity does not arise for consideration.

5. It is a well-established principle of law that a man cannot acquire a way of necessity, if he has other means of access to his land, however inconvenient, it may be, then by passing over to his neighbors soil. An easement of way, claimed as a way of necessity, can only be created where there is an absolute necessity for it, and not when there is a possibility of finding out another way, though at a greater expense. Under the provisions of Section 13 of the Easements Act, 1882 [hereinafter called as “the Act” for short], a right of easement has been conferred under the provisions and in a case where a partition is made of the joint property of several persons, 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. Even otherwise, if an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, a person who has been granted share is entitled to such easement.

6. It is the contention of learned counsel for the appellants that a person is not entitled on a partition of property, to a right of way of necessity over the property of the co-sharers, when there is a means of access to his land without going over the co-sharer’s land. Therefore, it is now relevant to consider as to whether really there is an alternative way for the plaintiff to reach public road from his land on the southern side of his property when he is claiming his right of easement through the land of the defendants to reach “A,B” road on the northern side The Commissioner, who inspected the properties of both the parties and Sy. No. 271 particularly, had issued notice and the parties were present at the time when the inspection was made. He has submitted his report Ex. C4 along with the sketch Ex. C5. The perusal of the sketch at Ex. C5 reveals the existence of “A,B” road running east-west on the southern side of Sy. No. 271. The lands of the defendants and the plaintiff are towards the southern side of this “A,B” road. The perusal of the evidence of the witnesses and the report of the Commissioner would clearly reveal the existence of “A,B” road on the northern side of Sy. No. 271 and to reach this “A,B” road from the land of the plaintiff at point “D”, he has to proceed to point “C” and then point “B” to reach the said passage. It is this track, which the plaintiff claims as easement of necessity. If the defendants establish that there is an alternative road on the southern side of the land of the plaintiff so as to reach the hill road, then the plaintiff cannot have the easement of necessity and any other right to pass on the land of the defendants. But, this is subject to the proof of an alternative road on the southern side passing through the land of Sri. D.N. Shankarappa and then reach the east-west road leading to the hill road. The perusal of the report-Ex. C4, the sketch-Ex. C5 and the evidence of the witnesses would clearly reveal that from the land of the plaintiff in Sy. No. 271 to reach 15 ft. wide road on the southern side, the plaintiff has to pass in the land bearing Sy. No. 293 owned by one Sri. D.N. Shankarappa. This is very much clear from the evidence of the witnesses and also the sketch and the report of the Commissioner. But, there is no evidence of the existence of the road in the land of Sri. D.N. Shankarappa and the said Sri. D.N. Shankarappa is not a party to the suit. So, in the absence of any road, from the land of the plaintiff to reach 15 ft. wide road on the southern side after passing through Sy. No. 293, there is no connecting road and particularly, through the land bearing Sy. No. 293 owned by Sri. D.N. Shankarappa. There are concurrent findings of the Courts below about an incomplete road on the southern side or absence of passage or a track in Sy. No. 293 to reach the 15 ft. wide road. In the circumstances, it cannot be said that there is an alternative road for the plaintiff to reach the hill road on the southern side by passing through Sy. No. 293 of Sri. D.N. Shankarappa. In the circumstances, it has to be held that the plaintiff has no alternative road on the southern side to enter his property and to reach the “A,B” road, he has to pass through the land of the defendants. Particularly, in the circumstances, when Sy. No. 271 was partitioned between the plaintiff and the defendants and to enjoy the share of the plaintiff in the said survey number, a way has to be provided to the plaintiff to reach the passage “A,B”. So, it is an easement of necessity for the plaintiff and the need is absolute to enjoy the property fallen to his share. Both the Courts below on appreciation of the material placed on record and the assessment of evidence have held that the plaintiff has an easement of necessity, through the points “B,C” to reach “A,B” road and therefore, have declared such a right in favour of the plaintiff and rightly granted a decree of injunction from causing obstruction in exercise of right of easement of necessity. Learned counsel for the respondent has placed reliance on the decisions of this Court reported in (1) AIR 1992 Kar. 181 [Baburao Yashvantrao Jadhav] and (2) 1969(1) Mys.L.J. 230 [Mujoor Govinda Bhatta Vs. Mujoor Krishna Bhatta] and they would also support the finding stated above. Though the substantial question of law raised has to be answered in favour of the appellant herein, in view of the findings of facts by both the Courts below and its reconsideration, it has to be held that there is no alternative road to reach the property of the plaintiff and the Courts below were justified in granting a decree on the basis of easement of necessity.

In the result, the appeal fails and it is dismissed accordingly.