An easement of necessity is extinguished if the necessity for the easement comes to an end.

JUDGMENT :- The defendants are the appellants. The suit was for a permanent injunction restraining the defendants from using a passage in front of the plaintiffs house to go to the south into the public lane running from west to east, it may be convenient to refer to the Commissioners plan Ex. A.6, for the purpose of location of the plaintiffs and defendants houses and the disputed passage.

The site over which the houses of the plaintiff and the defendants stand was previously owned by a common owner, and on 2-11-1942, under Ex. A.1, the plaintiff purchased the southern most portion, the entire property being divided into three portions, the northern, the middle and the southern, and began to put up a house construction on the property which he purchased leaving the disputed passage on the eastern side of a width of 5 to the entire length of his house and running from north to south open. The defendants purchased on 1-12-1944, under Ex. B.2 the northern portion and put up house constructions in the portions which they purchased, leaving similarly a lane running from north to south entering into the public road on the north. The defendants again on 14-12-1944, purchased the middle portion and put up constructions leaving again a lane of the same width in front of their house on the eastern side.

The right of the defendants to use the disputed passage was put on two grounds : firstly, the right of way through the disputed passage marked EFDC in front of the plaintiffs house of the width of 5 on the eastern side and running from north to-south was a right acquired by prescription, and secondly, that in any event, it is an easement of necessity, a right which the defendants are entitled to exercise.

The contention based on acquisition by prescription was given up and arguments were confined only to the defendants right to use the passage as an easement of necessity. But the courts held that the easement of necessity had become extinguished under S. 41, Easements Act, as in their view the necessity had come to an end. The view taken by the lower appellate court is that the passage, which is sought to be required for being used as an access to go into the public lane on the south, was allowed to be used as such to enable the defendants to enter the public lane on the south.

The trial court however found that there was another means of access to the public lane on the south, since the defendants could go through the lane reserved by them in front of their house, go north and enter the public lane on the north, which, runs from east to west, and then get into the main road, which proceeds from north to south, and then come into the public lane on the south.

It may be mentioned that the northern, western and southern boundaries of this block of houses are, a public road on the north, main road on the west and a public lane on the south, and it was therefore argued that since there was no absolute necessity for the passage to reach the south lane, which can be reached by proceeding to the north and then through the main road, the necessity must be deemed to have come to an end and as such it must be held that the easement had become extinguished.

2. Mr. Vishwanath Aiyar, however, argues that the necessity to get into the southern lane through this passage, which is admittedly the most convenient means of access to the southern lane, cannot be said to be extinguished on the ground that the same lane could be approached through other means, because the right which the defendants have in respect of the easement is a right in respect of the disputed passage to enter into the southern lane and it cannot be varied or modified and it is not open to the plaintiff to direct the defendants to proceed by other ways which might reach the southern lane.

3. In order to appreciate this contention, it is necessary to understand what an easement of necessity is. An easement of necessity is not as such defined in the Act, but Sec. 13 deals with an eas