( 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 Act) An easement is a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of that land to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other land not his own.

( 3 ) THE land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof the dominant owner; the land of which liability is imposed is called the servient heritage and the owner or occupier thereof the servient owner.

( 4 ) NOW in the instant case both the so called dominant heritage and the so called servient heritage are owned by one and the same person. An easement cannot be claimed and enjoyed in respect of a property belonging to the same owner. The essential ingredients of the easement are that there must be two different tenements or heritages viz. a dominant tenement and a servient tenement both of which must be owned by two different persons viz. owned and occupied by two different persons viz. dominant owner and the servient owner and the right must relate to doing of an act etc. in or upon or in respect of certain other land which is not hill own. Unless all these ingredients are satisfied the right in the nature of easement cannot exist. Admittedly in the instant case the so called dominant tenement viz. the shop for the beneficial enjoyment of which a right of easement is claimed over the so called servient tenement is owned by the Government. The servient tenement is also owned by the Government. Therefore the dominant owner and the servient owner are one and the same person and not two different persons. The most essential condition therefore which is required to be fulfilled for the existence of a right in the nature of easement ic non-existent in the. instant case and there cannot be any right in the nature of easement concerning the property bearing No. 690/1/a. The learned Judge therefore missed this fundamental aspect about the easement when he held that the tenant in occupation of a part of S. No. 690/1/b had acquired a right of easement of necessity in respect of a strip of land forming part of the adjoining property bearing No. 690/1/a belonging to the State which was also the owner of the land bearing No. 695/1/b on a part of which the plaintiff had been inducted as a sub-tenant.

( 5 ) SIMILARLY urges Mr. Chhaya the learned Judge has erred in interpreting the provisions of sec. 13 and in holding that by virtue of sub-lease created by lessee Hasanbhai in favour of the plaintiff in respect of part of S. No. 690/1/b when the lessee Hasanbhai was also a lessee in respect of part of S. No. 690/1/a which included the suit land the plaintiff became entitled to the use of the suit land as a rig