Necessity of easement ceases.

Defendant in O.S.No.420 of 1984, on the file of the First Additional District Munsif’s Court, Coimbatore, is the appellant herein.

.2. Suit filed by the plaintiff was for a mandatory injunction to direct the appellant herein to remove the wooden planks placed on the point MN by granting a mandatory injunction and for a permanent injunction restraining the defendant, her men and agents from in any way interfering with the plaintiff’s peaceful enjoyment and user of CDEF drainage and dhoni GH, and also to direct the defendant to remove the structures put up in the passage viz., EFTNM as described in the rough plan and the wall put up at the doorway situated on the eastern side wall of the kitchen room and to remove the blockage in the drainage running north south from the kitchen and the blockage in the ‘dhoni’ by way of mandatory injunction on or before a date fixed by court, and for other consequential reliefs.

3. Even though three reliefs have been claimed, all these are only for an injunction on the claim that the plaintiff is entitled to get an easement to drain water through the property of the defendant.

4. At the time of argument of the second appeal, learned counsel for the respondent submitted that he is confining his argument only on the easement of necessity, and that he is not claiming any other easement. I asked him whether the said submission can be recorded. He said that I can do so, and that his client needs only an easement of necessity. In paragraph 14 of the plaint also, the case put forward is only on the basis of absolute necessity.

.5. The admitted facts are as follows:

.The properties belonging to both the plaintiff and the defendant originally belonged to one Chinnappan alias Ponnusamy. He executed a sale deed in favour of his wife on 2. 1922, as evidenced by Ex.B-1. A portion of the same is claimed by plaintiff by various assignments under Ex.A-1 dated 20.6.1981. Defendant is claiming another portion on the basis of Ex.A-2 settlement deed dated 30.6.1950. The facts mentioned above alone are sufficient, for, the claim is only as an easement of necessity. That is, the property which belonged to the same person, and by various documents, it has now come to plaintiff and defendant. So, one of the conditions required under Sec. 13 of the Easements Act is satisfied. The other question to be considered in this second appeal is, whether there was necessity and whether that necessity is absolute necessity.

6. Before going to the facts of the case, I will first deal with the law, what is meant by ‘necessity’ and how it is extinguished under Sec.41 of the Indian Easements Act.

.7. In Venkatapathiraju v. Subbaraju, A.I.R. 1930 Mad. 789: 1930M.W.N. 120: 127 I.C. 646: 33 L.W. 191, learned Judge said thus:

.“An easement of necessity is an easement without which a property cannot be used at all and not one merely necessary to the reasonable enjoyment of the property.” The learned Judge said that it is, therefore, necessary to bear in mind that while considering the question of easement of necessity, it has to be seen whether there is an absolute necessity.

8. In K.S. Vaidyanathan and others v. Messrs. Buhari and Sons (P) Ltd., and another, (1969)1 M.L.J. 435, this Court agreed with the decision reported in Venkatapathiraju v. Subbaraju, A.I.R. 1930 Mad. 789: 1930 M.W.N. 120: 127 I.C. 646: 33 L.W. 191,

9. In Karunakaran and others v. Janaki Amma and others, (1987)2 K.L.T. 1010 it was held thus:

“Easement of necessity arises on the severance of tenements by transfer inter vivos bequest or partition as envisaged in Clauses (a), (c) and (e) of Sec.13. Transferor, transferee, testator, legatee, or sharer of a portion of an undivided estate in any of the above cases is entitled to such an easement provided it is necessary for enjoying the subject of transfer, bequest or partition and in the case of a testator for enjoyment of what remains with him. For that purpose no express provision in the document maki