Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Imagine owning a landlocked plot with no access to a public road except through your neighbor's property. You might think claiming an easement of necessity is straightforward. But what if the necessity didn't exist when the properties were originally divided? This is a common pitfall in property disputes under the Indian Easements Act, 1882.
The key question here is: Can an easement of necessity be denied because necessity didn't exist at the time of severance between the parties? The answer, generally speaking, is yes. Courts strictly enforce this requirement, and failure to prove it can lead to dismissal of claims. This blog dives deep into the legal principles, judicial precedents, and practical tips, drawing from established case law. Note: This is general information, not specific legal advice. Consult a qualified lawyer for your situation.
An easement of necessity arises under Section 13 of the Indian Easements Act, 1882, when a single piece of land (tenement) is divided into two or more parts, and one part (dominant tenement) cannot be used at all without access over the other (servient tenement). It's not about convenience—it's about absolute necessity at the moment of severance.
As per the Act: Easement of necessity... arises only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of the separate tenements is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements. Vadivel (died) VS Rengasamy - 2020 0 Supreme(Mad) 403
Key requirements include:- Unity of title: Both tenements must have been under common ownership before division.- Severance: Division via sale, inheritance, or partition.- Contemporaneous necessity: No viable access for the dominant tenement at the time of severance. Variyam Kunnummal Aneesan S/o Kumaran VS Ariyara Meethal Kumaran S/o Chekkotti - 2024 0 Supreme(Ker) 433
Mere common ownership isn't enough; it must be proven that the properties formed a single unit pre-severance. Vadivel (died) VS Rengasamy - 2020 0 Supreme(Mad) 403
If necessity didn't exist when the properties were severed, no easement arises—period. Post-severance changes, like road closures, don't retroactively create the right. This strict rule prevents abuse and upholds property rights.
In one landmark view: The right of easement of necessity arises only in cases of severance of tenements and the unity of ownership of the dominant and servient tenement at some time or other is essential... to constitute an easement of necessity, a single tenement must have been divided into two or more separate and distinct units. Suntosh Kumar Banerjee VS Krishna Kant Gupta - 1984 0 Supreme(Pat) 224
Courts have set aside lower decrees for overlooking this. For instance, where plots never formed a single unit: Plot No. 179... ever formed a single unit along with plot No. 178... The claim failed entirely. Suntosh Kumar Banerjee VS Krishna Kant Gupta - 1984 0 Supreme(Pat) 224
Unity of ownership is the sine qua non (essential condition): An easement of necessity can arise only on the severance of a tenement. Chellappan Pillai VS Andi Damodaran - 1991 0 Supreme(Ker) 190
From additional precedents:- Easement requires proof that dominant and servient tenements were joint before severance by transfer or partition. Avijit Mitra VS Shankar Lal Roy - 2019 Supreme(Cal) 772- No easement if no prior joint ownership or severance; alternative paths defeat claims. Gouri Amma Krishnamma VS Seethalakshmi - 2003 Supreme(Ker) 451
Courts consistently deny claims lacking these elements:
In a dispute, the plaintiff failed because plots weren't a unified tenement pre-severance. The High Court emphasized: 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. GOPINATHAN NAIR vs RADHAMONY - 2019 Supreme(Online)(KER) 63935
Even if unity existed, an alternative way—even inconvenient—negates necessity: It is the well settled law that easement by necessity must fail, when a convenient or inconvenient alternative way is available. Variyam Kunnummal Aneesan S/o Kumaran VS Ariyara Meethal Kumaran S/o Chekkotti - 2024 0 Supreme(Ker) 433
In another suit, the plaintiff couldn't prove a pathway's existence or 20-year prescriptive use, and necessity failed sans severance. Kamala Devi Amma VS Rajan - 2017 Supreme(Ker) 1343
These cases show lower courts err by granting easements without strict proof, often reversed on appeal.
Don't confuse with:- Easement by grant: Created by document; survives even if necessity ends (not governed by Section 41). Hero Vinoth (Minor) VS Seshammal - 2006 4 Supreme 131 Misconstruing grant as necessity is a substantial question of law under CPC Section 100. Hero Vinoth (Minor) VS Seshammal - 2006 4 Supreme 131- Easement by prescription (Section 15): Requires 20+ years of open, peaceful use. Successful in some passage disputes, but fails without proof. Kamala Devi Amma VS Rajan - 2017 Supreme(Ker) 1343- Quasi-easements: Less absolute, based on prior use, not strict necessity. Shajahan VS Suma Satheesan Nair - 2013 Supreme(Ker) 146
An easement by grant does not get extinguished under Section 41... Limit of the easement acquired by grant is controlled only by the terms of the contract. Hero Vinoth (Minor) VS Seshammal - 2006 4 Supreme 131
Even if granted, necessity easements extinguish under Section 41 if alternatives emerge: Such an easement will last only as long as the absolute necessity exists. Hero Vinoth (Minor) VS Seshammal - 2006 4 Supreme 131
Convenience isn't enough—must be absolute. Suntosh Kumar Banerjee VS Krishna Kant Gupta - 1984 0 Supreme(Pat) 224
In one case: Easement of necessity arises on the severance of tenements. Gouri Amma Krishnamma VS Seethalakshmi - 2003 Supreme(Ker) 451
To succeed:1. Plead precisely: Unity of title, severance details, absolute necessity at division (no alternatives).2. Gather evidence: Title deeds showing common ownership and pre-severance layout.3. Frame issues: Request court to determine these facts.4. Consider alternatives: Plead grant or prescription if applicable.5. Appeal strategy: Argue misconstruction of necessity vs. grant as a substantial question. Hero Vinoth (Minor) VS Seshammal - 2006 4 Supreme 131
Property disputes hinge on these nuances. For tailored guidance, reach out to a property law expert. Stay informed, protect your rights!
References:1. Hero Vinoth (Minor) VS Seshammal - 2006 4 Supreme 131 – Necessity vs. grant distinctions.2. Vadivel (died) VS Rengasamy - 2020 0 Supreme(Mad) 403 – Single tenement requirement.3. Variyam Kunnummal Aneesan S/o Kumaran VS Ariyara Meethal Kumaran S/o Chekkotti - 2024 0 Supreme(Ker) 433 – Alternatives defeat claims.4. Suntosh Kumar Banerjee VS Krishna Kant Gupta - 1984 0 Supreme(Pat) 224 – Denial for no contemporaneous necessity.5. Chellappan Pillai VS Andi Damodaran - 1991 0 Supreme(Ker) 190 – Unity as sine qua non.6. VELAYUDHAN VS PADMANABHAN - 1988 0 Supreme(Ker) 219 – Grant persistence.7. GOPINATHAN NAIR vs RADHAMONY - 2019 Supreme(Online)(KER) 63935, Avijit Mitra VS Shankar Lal Roy - 2019 Supreme(Cal) 772, Kamala Devi Amma VS Rajan - 2017 Supreme(Ker) 1343, Shajahan VS Suma Satheesan Nair - 2013 Supreme(Ker) 146, Gouri Amma Krishnamma VS Seethalakshmi - 2003 Supreme(Ker) 451 – Supporting precedents.
#EasementOfNecessity, #PropertyLawIndia, #EasementsAct
Right of way also can be claimed by pleading and proving right of easement by necessity, consequent to severance of tenements. 14. ... So, in order to substantiate right of easement by necessity, there should be pleading to the effect that the properties were held jointly and on severance, there arose a necessity for enjoyment of a part of the property so separated or severed by burdening another portion of the property. ... Therefore, the contention raised by the lea....
Unity of ownership and severance of tenements being admitted by the parties, the plaintiff is entitled to raise a plea of, right of way as an easement of necessity. This is in terms of Section 13(e) of the Easement Act. ... Merely because the said access may be inconvenient, it does not entitle the plaintiff to claim another way as an easement by necessity. Existence of an alternate way, however inconvenient it may be, disentitles a claim for easement#HL_END....
Thus, it would seem that in the present ease an easement of necessity in respect of the passage in question had existed at one time. ... in holding that there was no easement of necessity. ... Though easement of absolute necessity and quasi-easement may alike be created by implication of law on a severance of the tenements, the point of distinction arises between these two classes of easement, in cases where the do....
It is therefore clear that at the time of severance of two tenements there existed a pathway through the north era portion of the plaint B schedule property. ... On the basis of the evidence the trial court held that there existed a pathway as claimed by the plaintiff and that the plaintiff had a right of way through the plaint B schedule properly as claimed by way of an easement of necessity. ... Assume that the plaintiff has only a co-owners hip right over the said properties, can it be said that she ....
The necessary concomitant of an easement of necessity is that they arise on severance of tenament which was once a one unit. ... easement of necessity. ... ... (22) S. 13 envisages how an easement of necessity comes into existence which discloses in unequivocal terms that easement of necessity comes into existence not as a result of any prescriptive right but as a result of severance of ownership ... ... (c) the ....
It is contended that the plea of easement by necessity was raised only as an alternative plea and that, once the plaintiff was able to establish the ingredients required to claim an easement by prescription, the contention relating to easement of necessity pales into insignificance. ... “Were the courts below right in granting a decree in favour of the plaintiff when the plaintiff contended that she has acquired right of easement by prescription and also contended that there was #HL_S....
I entirely agree with the learned District Judge that this is not an easement of necessity. ... This accommodation as it existed during the common ownership cannot in the strict sense be described as an easement but is usually described as a "quasi-easement". Blackacre is sometimes described as the quasi-dominant tenement, and Whiteacre as the quasi-servient tenement. ... There is ample authority for the proposition that right of irrigation being both apparent and continuous emerges as a quasi-#HL_START....
As provided in S.28, an easement of necessity is coextensive with the necessity as it existed when the easement was imposed. ... Quasi easement is available even when the property is otherwise enjoyable. Its limit is not restricted to absolute necessity, but controlled by the extent of the apparent and continuous user which existed at the time of severance. ... It is an accommodation which existed during common own....
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 ... 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 ... A way is scheduled in the plaint and claimed easement by necessity....
Easement of necessity arises only upon severance of tenements either by transfer or by bequest or by partition. It is true that easement by grant also could be bad by these methods but it could be had in other cases also whereas easement of necessity cannot. ... Easements of necessity are dealt with in Clauses (a), (c) and (e) of S.13 of the Easements Act. It is an easement arising upon a grant by implication of law and not by any contractor concessi....
Therefore, in order to claim easement of necessity over servient tenement, plaintiff is under obligation to prove that the property, being dominant tenement and servient tenement was joint before it was severed by transfer or partition. It is pertinent to note that the respondent did not seek relief in the suit praying for right of easement of necessity over 'B' schedule passage. It is already noted that easement of necessity arises on the severance of tenement. On the contrary, it is admitted by the plaintiff/respondent in course of his evidence that 'B' schedule passage i....
The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. In the decision reported in Maniyan Krishnan v. Nanukuttan, 1986 KLT 203, a single Bench of this Court has held that, That easement of necessity arises on the severance of tenements.
It is an accommodation which existed before severance in the tenement when it continued under common ownership. Though easement of necessity and also quasi easement arise on severance of tenements by bequest, transfer or partition, in the case of quasi easement it is not so absolute as in the case of easement of necessity, but only qualified. 5. Sub sections (b), (d) and (f) of section 13 of the Indian Easements Act, 1882, deal with what is called “quasi easement”. Generally, it is accepted that right of way will not come under quasi easement since such right depends upon u....
Further, it has come out in evidence that there is a pathway for the plaintiff through the western side of item No.1 for ingress and egress to the eastern road. Further easement of necessity cannot be claimed in the absence of severance of tenements. Easement of necessity arises on the severance of tenements. The necessity must be absolute and not convenient mode of enjoyment. The necessity should have come into existence on severance of tenements into two distinct tenements. Here, in the instant case the plaintiff has no case that both the servient and do....
An easement of necessity can arise only on the severance of a tenement. It is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Unity of ownership of the dominant and servient tenements at some time or other is the sine qua non for an easement of necessity. Away of necessity arises, where on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
