Scope of claim for easement of necessity and right to light and air.

The plaintiffs are the appellants. They are the owners of what is called the S.I.R. Ice Factory No. 1, Whannels Road, Madras. They filed the suit for a declaration of their right of way along the red marked road in the plaint plan for access to three buildings marked as No. S-1, 2 and 3 in the plan and also for an injunction restraining the defendants from putting up a transformer, which would have the effect of interfering with the enjoyment by the plaintiffs of light and air for the said buildings. Both the Courts below have held against the plaintiffs.

The first plaintiff’s father purchased No. 1, Whannels Road, Egmore, Madras in 1911. The first plaintiff purchased No, 2, Whannels Road, Egmore, known as ‘Edinboro house ‘in 1914. The red marked road leads to Edinboro house from Whannels Road. The plaintiff’s claim was that this red marked road was the road for reaching the buildings marked as No. S-1, 2 and 3 in the plaint plan. The first plaintiff executed a settlement deed on 28th December, 1956 in favour of his son over Edinboro house and the son sold that property to the defendants. Building No. 2 has been in existence from 1911 and No. 1 from 1913 onwards. The access to the first floor of building Nos. 2 and 3 was through the disputed road by erecting stair-cases in 1946. The access to the No. 1 building had also been always through the disputed road.

In this case, there is no question of any right of way by grant. Neither the settlement deed in favour of the first plaintiff’s son, nor the sale deed by him in favour of the defendants reserved any right in favour of the first plaintiff; nor have the plaintiffs established their right of way by prescription. Till 1956 both the properties were owned by the same person and as no right of way was reserved by the settlement in favour of the plaintiff’s son and right of way by prescription, cannot be said to have been acquired after 1956, the plaintiff’s claim has to be decided on the basis of its being an easement of necessity. Clearly the Courts below were right in holding that there is no easement of necessity in this case. An easement of necessity is one without which the property in question cannot be enjoyed at all and not one merely necessary for the reasonable or convenient enjoyment of the property. (See the decisions in Krishnamarasu v. Marraju1, Narayana Gajapathiraju Bahadur Gam v. Rani Janaki Bathayamaji Garu2and Mariyayi Ammal v. Arunachala3. Till 1946 access to No. 1 building was only from the property which now belongs to the plaintiffs. It was only when the ground floor of that building was converted into cold storage and sales room for the ice factory in 1946, a door way was opened in the disputed road side to reach the residential quarters in the upstairs portion by closing the entrance of that first floor from the ground floor. That stair-case is still available. Therefore, access to this building could be provided by the plaintiff making the necessary changes in their building. In respect of No. 3 building the ground floor alone was put up in 1944 with entrance from the Ice factory side. When the first floor construction was put up in 1946 the entrance to the first floor was opened from the disputed road side by erecting a stair-case. A stair-case can easily be constructed inside the ice factory premises to reach the first floor of No. 3 building. In respect of No. 1 building, there is a small wicket gate opening to the Ice factory side. Therefore, all these buildings could easily be reached by making some small changes in the property belonging to the plaintiffs.

But it is urged on behalf of the plaintiffs that in law, it is unnecessary for the plaintiffs to make alterations in their building in order to have access to their properties and that if their buildings cannot be reached except by making alterations to their building and if it is necessary to pass through the servient tenement, then it should be held to be an easement of necessity. They a