N. H. BHATT, S. OBUL REDDI, J.

( 1 ) * * * *

( 2 ) THE last question before us for determination is the plaintiffs case based on easement of necessity. We are endorsing the reasoning of the learned trial Judge about the existence of easement of necessity that was there till year 1946. The situation speaks for itself and the defendants were not well-advised in disowning all the facts. They had gone to the extent of speaking of a hedge dividing survey no. 73-B and survey no. 73-B-1 existing at the site till 1968 when the plaintiff according to them had removed the hedge highhandedly and had carried his building materials through survey no. 73-A which they said the plaintiff was permitted to carry. The learned trial Judge rightly discountenanced all this story. We therefore do hold that till year 1946 or thereabout when southern road came to be laid by the Ahmedabad Municipality the owners of survey no. 73 had right of way as an easement of necessity and in exercise of that right they were entitled to pass through survey no. 73-A belonging to the defendants. However the situation was changed when the road came to be laid. This fact is admitted that this road was so laid in the year 1946 or thereabout that is before the structures had come to be put up by the above-mentioned Ranchhodbhai Patel the original plaintiff no. 2 who ultimately withdrew from the scene of the suit. The question is: can the easement of necessity survive after the alternate outlet is available Even Mr. Oza the learned advocate for the plaintiff agreed on principle that easement of necessity would no longer be available when alternative way is available to the claimant of that right. His submission however was that long before the said southern municipal way came to be carved out by the municipality the co-owners of survey No. 73-B had mutually divided the land making the survey No. 73-B-1 and 73-B-2 and that in the year 1933 the owner of survey No. 73-B-2 had taken off his claim over survey no. 73-A and so the owner claiming that right of easement was the plaintiff the owner of survey No. 73-B-1. It is an admitted fact that Ranchhodbhai Patel the owner of survey No. 73- B-2 had put up his construction in such a way as to make it impossible for the plaintiff to go out of his property of survey No. 73-B-1. However the action on the part of a co-owner or any action on the of the owners of a dominant heritage cannot work to the deteriment of the owner of a dominant heritage. In other words it was not open to the plaintiff and Ranchhodbhai Patel to so divide their properties that the burden on the servient heritage of the defendants which burden was contingent on the non-availability of any alternate way for the dominant owners could continue to hang on servient heritage even after the contingency ceased. Simply because the plaintiff and Ranchhodbhai had taken into their heads to divide the properly in such a way that for all time to come the servient heritage would continue to remain burdened the defendants cannot be made to suffer. In other words that could not for all time to come take away that contingency and convert the contingent right into an absolute right. Mr. Oza in this connection submitted that it was an incident of a joint ownership that they would divide their heritage. This say cannot ordinarily be denied. However the co-owners must remember that to their property which was joint erstwhile contingent right was annexed and which right would be lost on certain contingencies disappearing. They were expected nay they were bound to carry out their affairs including the act of partitioning their estate in such a way that the contingent right of servient owner (viz. not to bear the burden of the dominant owner on the alternative way being available for the esrtwhile joint property) would not be lost for ever. As a matter of fact on going through the relevant evidence and the judgments of both the courts we find that the year 1933 that has been referred to

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