( 1 ) THIS is an appeal by the State original defendant in a suit filed by the respondent original plaintiff being civil suit No. 264 of 1970 of the court of the learned Judge City Civil Court 5 Court Ahmedabad against its judgment and decree dated 28th February 1974 declaring that the plaintiff as the sub-tenant of the shop bearing Municipal census No. 562a/1 standing upon a portion of survey number 690/ 1 has a right of way as an easement of necessity upon servient tenement admeasuring 36 north-south and 10 on east-west forming part of the open land bearing S. No. 690/1/a lying to the west of the plaintiffs shop and granting a perpetual injunction restraining the defendant State its servants and agents from disturbing the plaintiffs aforesaid right of easement in any manner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

( 2 ) MR. Chhaya the learned Assistant Government Pleader appearing for the appellant State submits that in the instant case the learned Judge has decreed the plaintiffs suit on a misconception and misconstruction of law with regard to easements. As defined in sec. 4 of the Indian Easements Act 1882 (the Ac