The nature of the acquisition of an easement, whether by grant or as of necessity, is determined by the terms of the grant and not solely by the absolute necessity of it. An easement acquired by grant, even if absolutely necessary for the enjoyment of the dominant tenement, is a matter of contract between the parties and may have its own consideration.

1. The simple question to be considered in this second appeal filed by the defendants is whether a right of way acquired as a grant of easement by the provisions of a partition deed, which was also absolutely necessary for the enjoyment of the dominant tenement at the time of the grant, could be taken as an easement of necessity and treated as extinguished when the absolute necessity ceased by the owner of the dominant tenement acquiring an adjacent property having road access.

2. Plaint B-schedule property was allotted to the share of defendants as per ExtA.partition deed and A-schedule property lying to the south of it was allotted to the assignor of the plaintiff. There is a road running east-west just on the northern side of B-schedule property. C-schedule is the pathway from the road leading to A-schedule property without which A-schedule had no access at the time of partition. It is part of B-schedule property on its western extremity running north-south. In Ext.A.partition deed a pathway was provided to A-schedule through C-schedule. The case of the appellants is that after the plaintiff purchased A-schedule property he has also acquired the land lying immediately on the eastern side of A and B-schedule properties touching the northern road and hence through that property he is having access from the road to A-schedule property without using C-schedule property.

3. Purchase of the eastern property was denied by the plaintiff. Ext. B1 produced by the appellants as one of the sale deeds of the eastern property was contended by the plaintiff to be not in his name. Appellants have another grievance that they were not permitted to prove two other sale deeds in this respect. They also contended that the pathway provided in Ext.A.is not C-schedule property but on the eastern side of B-schedule and the description in Ext.A1 is a mistake. Further contention was that the pathway was in disuse and the right is lost by limitation and adverse possession also. All these contentions were found against by both the courts on the evidence and those factual findings have become final and not liable to be reconsidered in second appeal. On the merits also no consideration is called for. The prayer for remand is also not justified to any extent. Appellants had enough opportunities to adduce evidence. Even if their contention regarding acquisition of the eastern property based on Ext. B1 and two other documents is correct, it cannot extinguish the grant under Ext. A. as an easement of necessity.

4. The question whether an easement is one acquired by grant or as of necessity is not to be decided on the absolute necessity of it. It is the nature of the acquisition that counts. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties and it may have its own consideration in some form or other. In the matter of grant the parties are governed by the terms of the grant and not anything else. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under S.13 of the Easements Act even though it may also be an absolute necessity for the person in whose favour the grant is made. On principle it is clear that if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement which is paid for should be extinguished for the reason that the acquirer came by another access. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothin