The main legal point established is that an easement of necessity cannot be claimed if an alternative passage is available, even if it is inconvenient or longer.

B.S. Chauhan, J.-The instant revision has been filed against the order dated 14-3-2002 passed by the First Appellate Court reversing the order dated 19-12-2001 passed by the trial Court rejecting the application of the non-petitioner No. 1 under Order 39, Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for short, “the Code”), restraining the petitioner to interfere with the easementary right of way of the non-petitioner.

2. The facts and circumstances giving rise to this case are that petitioner and non-petitioner No. 1 are real brothers and were in joint possession of the entire agricultural holding till 22-9-84 when it was partitioned by registered partition deed. The suit was filed for claiming easementary rights of way. Along with the suit, an application under Order 39, Rules 1 and 2 of the Code was filed for grant of temporary injunction. The trial Court rejected the said application, vide order under 19-12-2001. Being aggrieved and dissatisfied, non-petitioner No. 1 filed Civil Misc. Appeal No. 77/2001, which has been allowed vide impugned order dated 14-3-2002. Hence this revision.

3. Mr. A. L. Chopra, learned counsel for petitioner, has submitted that as an alternative way/passage is available to non-petitioner No. 1, he cannot insist upon the easementary rights as per his own choice, therefore, the order of the First Appellate Court is liable to be set aside.

4. On the contrary, Mr. P. M. Joshi, learned counsel for non-petitioner No. 1, has submitted that the alternative passage is not safe as during the rainy season, it submerges into water and, therefore, no interference is warranted by this Court with the impugned order.

5. I haveconsidered the rival submissions made by learned counsel for the parties and perused the documents produced by them at the time of hearing.

6. Admittedly, the contesting parties are real brothers. They were in the joint possession of their agricultural land till the same was divided by the registered partition deed dated 22-9-84. According to the partition deed, first two plots had fallen in the share of non-petitioner No. 1 and the third and fourth plot fell in the share of petitioner. However, the fifth plot, which is on the extreme left of fourth plot of the petitioner, has fallen in the share of non-petitioner No. 1 and passage is required to reach that plot. According to non-petitioner No. 1, when the property was joint, there was a passage through the third and fourth plots to reach the fifth plot. The said passage was used by the parties concerned for last fifty years. However, as per the petitioner, even if the non-petitioner No. 1 is permitted to use that way when the property was joint, an another passage is available after crossing the fourth plot and turning to left and, therefore, he should use that passage/way.

7. The learned trial Court, after considering the factual position to the conclusion that there was no prima facie case in favour of non-petitioner/plaintiff for the reason that an alternative passage was available though it may be bit longer. The balance of convenience was also found in favour of the petitioner-defendant on the ground that alternative passage was available. The third ingredient of suffering from irreparable loss was also found missing and consequently the application was dismissed. The First Appellate Court reversed the order of the trial Court on the ground that alternative passage, where the river has been shown, has not generally been used earlier and if the passage is not used, it cannot be said that he has an alternative passage to reach.

8. An easement is a right which an owner or occupier of certain land possesses as such for the beneficial enjoyment of that land to do or continue to do something or to prevent or continue to prevent something being done in or upon or in respect of certain other land not his own. (Vide Dukhi Mullah vs. Halway, (1896) ILR 23 Cal 55. Easement cannot be used for any purpose not con