IMPORTANT POINTS
The incident of easement of necessity is not contemporaneous with that of an easement by grant or easement by prescription, but would act as an alternative easement when absolute necessity comes out in the event of rejection of claim of prescriptive easement, easement by grant or easement by lost grant etc. There cannot be a simultaneous granting of an easement of necessity along with easement of prescription or easement of grant. But that does not mean that the alternative easement, i.e. easement of necessity, cannot be raised along with an easement of prescription or easement of grant.

ORDER :

Whether a claim of easement of necessity is mutually incongruous or destructive with that of a claim of prescriptive right of easement or easement by grant and whether it is permissible to plead and raise it together are the questions came up for consideration.

2. The decisions rendered by this Court in (i).Joy Joseph and Others v. Jose Jacob alias Thankachan (2010 (4) KHC 167) (ii) Kochu Nadar v. Kunjan Nadar Gabriel (2011 SCC OnLine Ker 2674) (iii) Kallen Devi and others v. Kizhakkekoroth Raghavan (2012 (3) KLT 142 : 2012(2) KHC 443) (iv). Kamala Devi Amma and others v. Rajan and another (2017 (4) KLJ 700: 2017 KHC 876) and (v). Lilly and others v. Wilson and others (2018 (1) KLT 772 : 2018(1) KHC 623) were relied on by the respondent in support of his argument that both are contradictory and mutually destructive and hence a claim based on easement of necessity and prescriptive right of easement cannot be maintained in a suit.

3. In Joy Joseph's case (supra), by differentiating the distinction between the easement of necessity and easement by prescription, it was held by this court that an easement of necessity and prescriptive right of easement cannot go together.

4. In Kallen devi's case (supra), it was again held by this Court in paragraph 14 that :

“first of all, the plea of prescriptive right of easement and easement of necessity are contradictory and inconsistent in each other. Both cannot co-exist. Even assuming that the plaintiff is entitled to take inconsistent plea, at the time of evidence he has to elect from one among them i.e. the prescriptive right of easement or easement by necessity and he cannot go on with both the pleas which are in fact contradictory. In the case on hand, the plaintiff pressed both the grounds and failed to establish prescriptive right of easement.”

5. The said legal position was reiterated by another Bench of this Court in Ibrahimkutty v. Abdul Rahmankunju (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468: ILR 1993(1) Ker.331 : AIR 1993 Ker.91) that:

“the qualitative and quantitative requirement for the different kinds of easement are to a great extent mutually exclusive”.

6. In Kamala Devi Amma's case (supra), this Court followed the legal proposition laid down in Joy Joseph's case (supra) and Kallen Devi's case (supra) and reiterated the legal position that “an easement of necessity and prescription will not go together and the plaintiff has to elect one among them in order to claim the relief”.

7. In Lilly's case (supra), this Court again summed up the legal position, thus :

“14. A mistake commonly committed by the draftsmen is to plead both easement by prescription and easement of necessity together in respect of a way, forgetting the fact that they are mutually incongruous to one another and contradictory in nature. S.15 of the Act deals with easement by prescription..............”

17. It is therefor clear from the above principles that easement of necessity and easement by prescription cannot operate together in respect of any immovable property. This proposition has been settled in a number of decisions (see Mohammed v. Doomunhi Achari, 1987 KHC 649 : 1987(2) KLT 1037 : 1988(1) KLJ 442 :AIR 1988 Ker.298 : 1988(1) Cur.CC 486, Joy Joseph and others v. Jose Jacob alias Thankachan, 2010(4) KHC 167 and Kallen Devi v. Raghavan, 2012 (2) KHC 443 : 2012(3)KLT 142). Therefore, I have no hesitation to hold that claims based on easement by prescription and easement of necessity taken up together in the pleadings by the respondent are contradictory to one another and therefore the plaintiff should have opted to adhere to one at the time of adducing evidence.”

8. Easement of necessity is co-existent and co extensive incident which would arise on severance of tenements. It is an incident which would unlock a land lying locked by landed properties on all sides, by providing a means of access to it. Easement of necessity and quasi easement are clubbed together in one provision i.e. in Section 13