The main legal point established in the judgment is the interpretation and application of easement rights under Section 13 of the Easements Act, emphasizing the necessity and availability of alternative pathways for ingress and egress to the property, and the distinction between easement by necessity and easement by grant.

Heard Sri RP. Nautiyal, couns.el for the appellant and Sri Bindesh Kumar Gupta and Sri Sanjeev Sah counsel for the respondent.

2. Present appeal has been preferred against the judgment and decree dated 4-72002 passed by the District Judge, Nainital in Civil Appeal No. 40 of 2001.

3. Briefly stated that a suit No. 59 of 1996 was instituted by the plaintiff / respondent before the Civil Judge (JD), Nainital for perpetual injunction, with the allegations that the plaintiff and the defendant are real brothers. There are two other brothers Bharat Lal Sah and Bashkar Lal Sah. All the four brothers had a joint ancestral property including the property situated at Ayarpatta, Mallital, Nainital known as Priory Lodge, Priory Cottage and Fern Cottage. On 1-7-1986 a family partition took place between all the four brothers and according to the family settlement dated 1-7-1986, the following property came in the share of the plaintiff / respondent:

"Ram Niwas Champa Naula, Almora, house and land plus Western half portion of priory cottage, Nainital."

4. In the same partition following property came in the share of the defendant I appellant.

"Half East portion of Priory Cottage and half portion of Priory Lodge with land and outhouses and the approach road which is from East to West is situated below Fern Cottage, except Tennis Court. " .

5. The plaintiff has annexed a sight map along with the plaint. The property of the plaintiff has been shown by letters ABCD while the property of the defendant I appellant has been shown marked by letters EFGH. The plaintiff I appellant lives in half portion of the Priory Lodge, shown by IJKL. According to the plaintiff the only approach to reach in the plaintiff's share is being used by the plaintiff and his tenant for more than 46 years, which has been shown by brown colour in the plaint map with letters MNOP.

6. According to the plaint allegations the defendant I appellant has started constructing a boundary wall to separate his portion in the Priory Cottage and he intents to block the approach to the Western portion of the Priory Cottage which is in the share of the plaintiff.

7. The defendant / appellant contested the suit and filed his written statement. In his written statement he has admitted that the plaintiff and defendant are real brothers. It is also admitted that the Eastern portion of the Priory Cottage came in the share of the defendant, while Western half portion of the said cottage went in the share of the plaintiff. However, the factum as to the approach road of the plaintiff has been specifically denied by the defendant.

8. On the pleadings of the parties the trial court has framed the following issues:

1) Whether the suit is under valued and court fee paid is insufficient?

2) Whether disputed Rasta-Iand shown by letters MNOP in the plaint map is the approach road for both the parties?

3) Whether defendant intends to close the disputed approach road?

4) To what relief, if any, is the plaintiff entitled?

9. The trial Court has decided issue nO.1 as a preliminary issue on 20-11-1999 in negative. Issue nO.2 was disposed of with the findings that the disputed approach road is not the only way for going in the Western portion of the Priory Cottage, which is in possession of the plaintiff and the plaintiff has alternative way to approach his house: Issue no. 3 was decided in affirmative. With the aforesaid findings the suit of the plaintiff was dismissed.

10. Feeling aggrieved the plaintiff has preferred an appeal No. 40 of 2001 before the District Judge, Nainital. The appeal was heard and decided by the lower appellate Court. It has been held by the lower appellate court that under section 13 of the Easement Act, after partition, the approach or the easement rights which were available before the partition would not be affected. The lower appellate court has also concluded that earlier road or rasta which were not actually easements rights become the easementary rights on partition and it is not