The main legal point established in the judgment is that the right of easement by necessity is lost if there is an alternative right for ingress and egress to the property, and that the right would not mature into a legal right unless it is found to be used for 30 years. The judgment also highlighted the legal requirements for claiming easement of necessity and the need for imposing exemplary costs in frivolous litigations.

VALMIKI J. MEHTA, J

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit impugning the Judgment of the First Appellate Court dated 28.7.2014, by which the first appellate court has set aside the Judgment of the Trial Court dated 25.7.2011. Trial court by its judgment had decreed the suit filed by the appellants/plaintiffs and allowed appellants/plaintiffs to use the passage in property no.39, Civil Lines, Delhi. The first appellate court by its impugned judgment has held that the passage in question is part of the private property no.39 belonging to the Government/Union of India, and therefore, the appellants/plaintiffs can claim no right in the private passage/land. The right was claimed by the appellants/plaintiffs in the passage as an easement of necessity.

2. At the outset, I would like to observe that the first appellate court has, very thoroughly, exhaustively, analytically and with appropriate reasons decided the first appeal, and if it was my option I would simply dispose of this second appeal by adopting every paragraph and the reasoning of the first appellate court, because this Court could not have used better language and better reasoning than as has been done by the first appellate court. In order to show that what is being said by this Court about the thorough judgment passed by the first appellate court, let me refer to paras 11 to 25 of the judgment of the first appellate court, and though the same will make this judgment prolix, I would still seek to reproduce the same. These paras 11 to 25 read as under:-

“11. As laid down by the Hon'ble Delhi High Court in the judgment titled as "Sanjeev Kumar Jain vs. Sh. Raghubir Sara Charitable Trust Ors., reported in 2004 VIII AD (Delhi) 398, the plaintiffs, to avail the benefit of section 13 of Easement Act, have to satisfy the following conditions:

(i) use of the passage was of necessity; and

(ii) no ingress and egress is possible to the said property except through the passage or if the sanctioned passage alone has to be used it would render at naught the utilization of the said property.

12. In the suit, the plaintiff claimed the easement of necessity on two grounds (i) that since decades the passage has been used for ingress and egress to the said property and (ii) that the passage is the only direct access to the plaintiffs property i.e. the said property.

13. Before ascertaining as to whether the plaintiffs satisfied the conditions as mentioned above to claim the easement of necessity, it is inevitable to discuss the description of the plots no. 39 and 45 and the properties existing on the same and the right of the respective parties on those plots.

14. Plot no. 39: Admittedly, the plot no. 39 is located at the eastern end of the plot no. 45 and is in the ownership of the defendants. At a distance of 62 feet from the end of the plot no. 45, CPWD Quarters (now the Delhi University Metro Station) exists on the front side while the defendants have allowed the usage of the back side of the same by Education Department. It is nowhere the case of the plaintiffs that from CPWD Quarters or the land allotted to the Education Department, any entrance exists towards the space left between the plot no. 45 and that construction. The space left in between is shown as the passage in the site plan Ex. PW1/18. As per site plan Ex.PW1/18, at the end of the passage from the main road, there is a wall and behind that there is defence establishment. The passage is the part of plot no. 39 and is in ownership of the defendants. As such, the passage is not the common passage.

15. Plot no. 45: At the western side of the plot no. 39, there is plot no. 45. Case of the plaintiffs is that the plot no. 45 admeasuring 3.2 acre belonged to Sh. R.S. Chaudhary Banarasi Dass who vide registered Will dated 04.01.1961 bequeathed the same in favour of his son namely Sh. Inder Prasad Chaudhary (IPC) who in turn sold the same