A right of passage through another person's property can be claimed as an easement of necessity if it is the only way to access one's own property.

1. The controversy in appeal here concerns access to a vacant plot. This vacant plot of the plaintiff-Balbir Singh lies behind the premises let out by him to the defendant-Sawan Singh and as would be apparent from a reference to the site plans on record, namely exhibits P/1, P/2 and D/3 and as also so found by the lower appellate Court, the only passage to it lies through the site on rent with Sawan Singh.

The point arising for consideration now being - whether the plaintiff can claim a right to use this passage and the defendant be consequently restrained from obstructing him from doing so. This right is claimed as an easement of necessity.

2. According to the case as set up by the plaintiff, he had been passing through the site on rent with the defendant for going to his vacant plot behind it. The entry to this vacant plot being through a door marked X in the site plan exhibit P/2. It was specifically averred that there was no other way for going to this plot except through the land in the occupation of the defendant. It was said that since the last 3 or 4 months, the defendant had stopped the plaintiff from going through his land and had also closed the door at point X .

3. In his written statement, the defendant took the plea that there was another passage for the plaintiff to his vacant plot from the West which he had since rented out.

4. It was the finding of the lower appellate Court that the property referred to by the defendant on the West of the vacant plot did not belong to the plaintiff and the plaintiff consequently had no access to his plot from that side and as mentioned earlier, the only passage was through the site on rent with the defendant. The relief prayed for by the plaintiff was, however, denied to him on the ground that there was no door at point X in the site plan exhibit P/2 and the plaintiff had not pleaded the necessary facts to claim this passage as an easement of necessity.

5. It is no doubt true that the expression Easement of necessity does not figure in the plaint, but a reading of it would show that it had been specifically averred there that there was no other way for going and coming from this vacant plot except through the site in the occupation of the defendant. When confronted with this plea all that counsel for the defendant sought to contend was that the omission here was that it had not been pleaded that the vacant plot and the site in the possession of the defendant originally constituted a single tenement. Further that there was no issue regarding such right of easement. When asked what prejudice would be caused to the defendant if the matter of easement of necessity is permitted to be taken up for consideration on the material on record. Counsel stated that the prejudice lay in the fact that had such a plea been raised, the defendant could have sought to defeat the right claimed by pleading that the plaintiff was the owner of both the tenements and could not thus claim any right of easement over the site with the defendant. In other words, as the relationship between the plaintiff defendant was that of landlord and tenant, no right of easement could be claimed by the plaintiff over the land held by the defendant. This is indeed a contention wholly devoid of merit.

6. The point sought to be canvassed by the counsel for the defendant to defeat the plea of easement of necessity was founded upon State of Gujarat V/s. Hiralal Motilal Luhar, AIR 1980 Guj 146. This was a case where a sub-lessee of a shop owned by the government sought an easement of necessity over an adjacent government land. In denying this claim, it was held that the essential ingredients of easement required that there should be two separate tenements-dominant and servient and the owners thereof should be different and the right must relate to doing of an act upon a land not his own. In the case of a sub-lessee of a shop owned by the government, both the owner of the dominant tenant, that is the shop and the own