The existence of an easement of necessity for property access is determined by the lack of other legally enforceable means of access, and the alleged availability of access through water does not negate the need for land access.

Plaintiff in a suit for declaration of title and possession over the plaint schedule property and for injunction to restrain the defendant from trespassing into the same is the appellant. His title to, or possession over, the property was not in dispute and precisely for that reason, both the courts below felt it unnecessary to grant the declaration sought. The only claim of the defendant respondent was that contained in para.7 of his written statement, that he has got an easement of right of way over the plaint schedule property. This is elaborated in paragraph 10 of the written statement by stating that the defendant has no access to his property, (except through the plaint schedule property), his property being surrounded by water on the sou them, western and northern sides and by the plaint schedule property on the eastern side, the obvious implication being that a way through the plaint schedule property on the east was a must, and one of necessity. It is in evidence that the southern, western and northern sides of the defendant's property are thodus (canals) and therefore the only access by land to that property is through the plaintiff's property on the east. This has been accepted by both the courts below.

2. The properties of the plaintiff and the defendant lying contiguous and in one block belonged originally to the plaintiff. The plaintiff sold a portion on the western side of this, property in the year 1957 to his cousin Padmanabha Pillai, who in turn assigned it to the defendant on March 24,1979. Admittedly Padmanabha Pillai was using the plaint schedule property for ingress to and egress out of his property on the west. His wife, when examined as D W.2 has spoken to the said user as of right. The courts below have examined the evidence in the case and come to the conclusion that there is no access by land to the defendant's property except through the plaint schedule property. It is not shown that this concurrent finding is vitiated in any manner. It is not therefore liable to be interfered with in second appeal.

3. The two ingredients necessary for an easement of necessity, namely that the two tenements constituted a single tenement originally and that there is no other access to the dominant tenement stand established by the evidence in this case. Normally this would have been sufficient to entail dismissal of the appeal.

4. But says the plaintiff, the normal mode of communication in this area of kayals and canals is through water, and that therefore there is no need for any land access to the defendant. People depend mainly on their canoes to reach places. An easement of necessity cannot therefore be postulated or found. So goes the argument. The point raised is that if there is access through water, particularly in an area (in this case in Alappuzha District) where water transport is in vogue generally, an easement of necessity (of a right of way) is ruled out. Having heard counsel, I am not persuaded to agree to this proposition.

5. Apart from the unacceptability (in the absence of plea or evidence) of the tall claim that the normal mode of communication or transport in this area is only through water, I am also unable to understand how the facility of communication through water could be a ground to negate the claim of an easement of way of necessity.

6. Easement of necessity is an easement which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. It is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. An easement of necessity can arise only on the severance of a tenement. Unity of ownership of the dominant and servient tenements at some time or other is the sine qua non for an easement of necessity. Away of necessity arises, where on a disposition by a common owner of part of his land, either the part disposed of or the pa