A suit for declaration of prescriptive right of

easement and easement by necessity ended in

dismissal in both the Trial Court and the First

Appellate Court, against which the plaintiffs came

up with this appeal. During the trial stage,

necessity alone was pressed into service. But the

commissioner who visited the property reported the

existence of two other alternative ways, one is

passing through the southern corner of the property

of plaintiffs through the property of defendant.

The other one is through the western side of

plaintiffs' property, but it was blocked by the

adjoining property owner.

2.

The necessity would arise only in the

absence of an alternative way. An alternative way

which is available should be the one in which the

plaintiff can use it as of right. The legal

position was very much settled in Kochan Ramanathan

RSA.No.1419 OF 2011 3

v. Kochan Natarajan (1990 KHC 316). Easement of

necessity would arise only on severance of tenement

and when there is absolute necessity without which

the plaintiff cannot use their property on

severance. But it is equally settled that the

plaintiff cannot dictate a particular way in

existence and claim easement by necessity over it.

It can be granted by providing a way by the court

through the property of the defendant without

causing much disturbance to the servient heritage

or its ownership. A way is scheduled in the plaint

and claimed easement by necessity over the way. It

is not permissible. The way scheduled in the plaint

leading to the property of plaintiffs and the two

other ways reported by the commissioner would go

against the claim of easement by necessity.

Regarding the other two ways in existence, it is

upon the plaintiffs to establish that they cannot

use the same as of right as an easement, for which

except a denial, no satisfactory evidence was

adduced. The concurrent finding rendered by both

the courts below hence deserves no interference.

RSA.No.1419 OF 2011 4

No substantial question involved.

The appeal fails, dismissed. No costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE