The lower courts (trial court and first appellate court) erroneously classified the defendant's right of way over the plaintiff's property as an easement of necessity, holding that it stood extinguished under Section 41 of the Indian Easements Act, 1882, due to the availability of an alternative access to the defendant's backyard via her main house.[1000359100005][1000359100006][1000359100024]

The High Court, in second appeal under Section 100 CPC, rejected this classification after examining the partition deed dated 23.11.1950, which explicitly granted mutual rights: Purushothaman Chettiar (defendant's predecessor) was granted a right to "commonly enjoy the lane" on Aravamutha Chettiar's portion (plaintiff's predecessor), while the well on Purushothaman's portion was similarly available to Aravamutha, with ownership of each feature remaining exclusive to its respective allottee.[1000359100008] (!)

This constituted an easement by grant—a contractual arrangement intended to be permanent and uninterrupted, as stated in the deed: "We should take possession of our respective shares and enjoy the same uninterruptedly for ever." (!) [1000359100026]

An easement by grant is governed solely by its terms and does not depend on ongoing necessity; it is not implied under Section 13 of the Act and cannot be extinguished under Section 41, even if an alternative route emerges, unlike an easement of necessity which lasts only as long as absolute necessity exists.[1000359100027][1000359100028]

The Supreme Court upheld the High Court, finding the lower courts' misconstruction of the deed (treating a grant as necessity) raised a substantial question of law under Section 100 CPC, warranting interference, as the legal effect of the deed's terms is a question of law.[judgement_act_referred][1000359100015] (!) [1000359100024][1000359100029]

Thus, the right of way persists as a permanent easement by grant, unaffected by the plaintiff's acquisition or alternative access.[1000359100029]