Saji Koduvath, Advocate, Kottayam.

PART   I – ABSTRACT

1. Courts in India consistently adhered to the following postulations-

• Prescriptive Right of Easement (Grant also) stands destructive to claim of Easement of Necessity.
• Easement of necessity is based on implied grant. That is, it is based on some sort of ‘consent or permission’. But, Easement by Prescription is acquired by prescriptive or hostile acts.
• Therefore, both such rights cannot be claimed in the (same) suit even as an alternative remedy.
• Theoretical basis of ‘Easement of Necessity’ and ‘Easement by Implied Grant’ are same. Therefore, such claims can be raised in the (same) suit as an alternative remedy.

2. Following is a matter of seminal importance-

• A (Single) Judge of the Kerala High Court (in Achuthan Nair, v. Vasudevan, 2020-5 KHC 647) took the view that Easement of Necessity can be claimed as an alternative remedy (in a suit based on Prescriptive Rights), “in the event of rejection of claim of prescriptive easement“; for, easement of necessity is “co-extensive with the necessity”. It being stood against the earlier view of the High Court, in various cases, he referred the matter for the decision by a larger bench. The case is pending consideration by the larger Bench. 

Necessity and Prescription (Generally Followed) Propositions

• Easement of Necessity and Prescriptive Right are ‘mutually destructive’
• Both are antithetical to each other.
• Both cannot be maintained in one suit.

Invariably it is so held by the Courts in India. See:

• (i) P.  Sadayan v. Arumugam, 2020-1 LW 535
• (vii) Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623)
• (vi) Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700: 2017 KHC 876)
• (ii) Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649
• (v) Kallen Devi v. Kizhakkekoroth Raghavan, (2012 (3) KLT 142 : 2012(2) KHC 443)
• (iv) Kochu Nadar v. Kunjan Nadar Gabriel, (2011 SCC OnLine Ker 2674)
• (iii) Joy Joseph and Others v. Jose Jacob,  (2010 (4) KHC 167)
• (viii) Ibrahimkutty v. Abdul Rahmankunju, (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468: ILR 1993(1) Ker.331 : AIR 1993 Ker.91)

Necessity and Implied Grant – can Claim Alternatively; Theoretical Basis Same

• Theoretically, easement of necessity and quasi-easement arise from implied approval of the servient owner; and, therefore, there is “implied grant” in both.
• ‘Grant’ of easement may be express or implied. Implied grant is controlled by the (implied) terms and conditions of the grant.
• Both easement of necessity and quasi easement have some common features; but, they are distinguishable and cannot go together.
• Grant being controlled by the (implied) conditions, it is not akin to ‘quasi easement’, and a grant will not be defeated by the emergence of an alternative way.
• It is obvious , the decision of Sree Swayam Prakash Ashramam v. G. Anandavally Amma , 2010 (2) SCC 689, proceeded on this principle – “theoretical basis of ‘Easement of Necessity’ and ‘Easement by (Implied) Grant’ are same”.

Easement by Prescription and  Easement of Necessity are Antithetical 

Easement by prescription is “acquired” by hostile and notorious acts; but user of it should be peaceable and open enjoyment, without interruption for twenty years. Therefore, “grant” is ‘presumed’ in easement by prescription.

Origin of Easements of necessity and Easement by prescription are different (Easement of necessity is based on implied grant. That is, it is based on some sort of ‘consent, approval or permission’. But, Easement by Prescription is acquired by prescriptive or hostile acts). Hence, both these rights are said to be antithetical to each other. In Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is observed as under:

• “Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M.  Chellappan, AIR  2023 Mad 8, P.  Sadayan v. Arumugam, 2020-1 Mad LW 535).

In Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109, it is held as under:

• “10.   …. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

No Res judicata, Where suit dismissed on Technical Ground

It is trite law – there will not be res judicata if a suit is dismissed not on merit but on technical ground. (See: Niloufer Siddiqui v. Indian Oil Corporation Ltd., AIR 2008 Patna 5 upheld by the Supreme Court in Indian Oil Corporation Ltd.  v. Niloufer Siddiqui, 2015-16 SCC 125: Referred to in: P. Rajesh v. V. Shanthi, 2015-5 LW 27; 2015-7 MLJ 648)

Therefore, there may not be any bar on the ground of res judicata even if a suit is dismissed on the technical ground of claiming inconsistent pleas of easement.

See also:

• Dismissal of earlier suits on a technical ground that they were for a mere declaration without seeking consequential relief: Inacia Martins v. Narayan Hari Naik AIR 1993 SC 756.
• Dismissal of earlier suits and writs on technical ground or for want of parties: Ram Gobinda v. Bhaktabala, AIR 1971 SC 664; Shiromani Gurdwara Parbandhak Committee Vs Mahant Harman Singh AIR 2003 SC 3349.
• Plaintiff non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary grounds: Venkata-surya-narayana v. Siva-sankara-narayana, (1914) 17 M.L.T. 85.

A Discordant, but Intriguing, Note

Indicating forceful materials, the intricate legal principle as to ‘mutual destruction’ between Easement of Necessity and Prescriptive Right is doubted in Achuthan Nair v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104. It is found that a deeper examination and critical analysis are required, in light of the compelling circumstances. Hence the Single Bench of the Kerala High Court ordered a reference (to a larger bench), as shown above.

PART   II – EASEMENT OF NECESSITY and PRESCRIPTION – ACCEPTED POSITION

Antithetical to each other

As shown above, in Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is held as under:

• “Implied grant and the concept easement by prescription are quite antithetical to each other.”

Mutually Incongruous and Contradictory; Cannot Operate Together

In Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623), it is held thus:

• “14. A mistake commonly committed by the draftsmen is to plead both easement by prescription and easement of necessity together in respect of a way, forgetting the fact that they are mutually incongruous to one another and contradictory in nature. S.15 of the Act deals with easement by prescription…………..”
• 17. It is therefore clear from the above principles that easement of necessity and easement by prescription cannot operate together in respect of any immovable property. This proposition has been settled in a number of decisions (see Mohammed v. Doomunhi Achari, 1987 KHC 649 : 1987(2) KLT 1037 : 1988(1) KLJ 442 : AIR 1988 Ker.298 : 1988(1) Cur.CC 486, Joy Joseph and others v. Jose Jacob alias Thankachan, 2010(4) KHC 167 and Kallen Devi v. Raghavan, 2012 (2) KHC 443 : 2012(3)KLT 142).”

Will Not Go Together

In Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700: 2017 KHC 876), the suit was dismissed finding, inter alia –

• (i) ‘easement of necessity and prescription will not go together the plaintiff has to elect one among them in order to claim the relief’; and
• (ii) ‘in order to claim easement of necessity, mere statement that at one point of time the properties were under common owner alone is not sufficient and it must be specifically mentioned as to when the severance has taken place and the origin of easement of necessity arose as well’.
• (iii) “granting the relief of declaration of easement right of way by prescription in favour of the plaintiff that too for a lesser extent not for the extent claimed by the plaintiff in the plaint are unsustainable in law”.

Contradictory and Inconsistent in Each Other; Both cannot Co-Exist

In Kallen Devi v. Raghavan, (2012 (3) KLT 142 : 2012(2) KHC 443), it was held as under:

• “First of all, the plea of prescriptive right of easement and easement of necessity are contradictory and inconsistent in each other. Both cannot co-exist.”

Prescriptive Easement & Necessity – to a Great Extent, Mutually Exclusive

In Ibrahimkutty v. Abdul Rahmankunju (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468: ILR 1993(1) Ker.331 : AIR 1993 Ker.91) it is held as follows:

• “The qualitative and quantitative requirement for the different kinds of easement are to a great extent mutually exclusive”.

ELECT ONE AMONG THEM

Elect From One Among Them

In Kallen Devi v. Raghavan, (2012 (3) KLT 142 : 2012(2) KHC 443), it was held as under:

• “Even assuming that the plaintiff is entitled to take inconsistent plea, at the time of evidence he has to elect from one among them i.e. the prescriptive right of easement or easement by necessity and he cannot go on with both the pleas which are in fact contradictory. In the case on hand, the plaintiff pressed both the grounds and failed to establish prescriptive right of easement.”

Elect One Among Them

In Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700 : 2017 KHC 876) it is held as under:

• “… The plaintiff has to elect one among them in order to claim the relief”.

Opt One At the Time of Adducing Evidence

In Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623) it is held thus:

• “… Therefore, I have no hesitation to hold that claims based on easement by prescription and easement of necessity taken up together in the pleadings by the respondent are contradictory to one another and therefore the plaintiff should have opted to adhere to one at the time of adducing evidence.”

Essential Legal Attributes of Easement of Necessity & ‘Easement by Grant’

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement of necessity and Grant’. As regards easement of necessity it is laid down as under –

• An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement.
• The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land.
• It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41.
• Such an easement will last only as long as the absolute necessity exists.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, laid down, as regards ‘easement by grant’, as under–

• The grant may be express or even by necessary implication.
• In either case it will not amount to an easement of necessity under Sec. 13 of the Act eventhough it may also be an absolute necessity for the person in whose favour the grant is made.
• Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone.
• If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability.
• Such a right does not arise under the legal implication of Sec. 13.
•  An easement by grant does not get extinguished under Sec. 41 of the Act which relates to an easement of necessity.
• Where the parties clearly provided for a right of access to the backyard of the defendant’s house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors, it is a matter of contractual arrangement between them.
• In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, to differentiate ‘easement of necessity and grant’. It is laid down–

• Easement of necessity is depended upon absolute necessity.  Easement by grant does not depend upon absolute necessity of it. (It is the nature of the acquisition that is relevant.)
• Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. Still, easement of grant is a matter of contract between the parties, and the parties are governed by the terms of the grant and not anything else; whereas easement of necessity is controlled under the legal implications of Sec. 13 and it is extinguished by the statutory provision under Sec. 41 (which is not applicable to easement by grant). The grant may be express or that arisen by necessary implication _{(therefore controlled by Sec. 8)}.
• In either case (express grant or grant arisen by implication) it will not amount to an easement of necessity under Sec. 13 even when grant is an absolute necessity for the person in whose favour it is made.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

• Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way?  
• Does a way  that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued, in the course of time, with a higher width (so that cars can be taken) for more than 20 years, yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

• 10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

PART   III – STAND-ALONE DECISION, ACHUTHAN NAIR v. VASUDEVAN

The Single Bench of the Kerala High Court, in the reference-judgment (Achuthan Nair, v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104), raises an important question – so long as there is no other means of access to the dominant tenement, can’t easement of necessity be raised as an alternative claim to right of prescriptive easement, Easement of Necessity being co-extensive with the necessity. It reads as under:

• “It is quite permissible to plead and raise an alternative remedy along with the main relief sought. By its nature, an easement of necessity would always stand as an alternative remedy in the absence of a means of access to the dominant tenement. In short, the incident of easement of necessity is not contemporaneous with that of an easement by grant or easement by prescription, but would act as an alternative easement when absolute necessity comes out in the event of rejection of claim of prescriptive easement, easement by grant or easement by lost grant etc.”

The authoritative reasons pointed out by the Judge, for consideration of the larger Bench, can be summarised as under:  

• 1. Easement of necessity continues as long as necessity exits (it is co-extensive with the necessity). Easement of necessity would act as an alternative easement when absolute necessity comes out in the event of rejection of claim of prescriptive easement, easement by grant etc.
• 2. The easement of necessity will not extinguish except (as provided) under Sections 44, 45 and 46 of the Indian Easement Act (natural destruction, permanent alteration etc.)
• 3. For the above, there will be no “mutual destruction” between ‘easement by grant’ and ‘easement of necessity’.
• 4. From Sree Swayam Prakash Ashramam v. G. Anandavally Amma , 2010 (2) SCC 689, it can be “presumed” that “there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity”

1. Easement of Necessity is Co-Extensive With the Necessity

‘B.B Katiyar On Law Of Easement And Licences’ reads as under:

• “An easement of necessity is co-existent and co-extensive with the necessity.”

Therefore, the reference order of Achuthan Nair, v. Vasudevan emphasised the important point – “in the event of rejection of claim of prescriptive easement“, Easement of Necessity can be claimed as an alternative claim, easement of necessity being co-extensive with the necessity. It is said as under-

• “When there is no way available, virtually, the property would become incapable of enjoyment or to exercise any act of ownership over it. There lies the scope of an indefeasible incident annexed to the landed property as its integral part which would act as an alternative remedy when an absolute necessity comes out. It cannot be defeated or extinguished so long as, the tenements which were severed-dominant and servient, are in existence. It is not specified anywhere in the Indian Easement Act that an easement of necessity would remain inactive and inoperative when there is an alternative way and would revive when absolute necessity arises. But the very principle underlying easement of necessity giving rise an incident co-extensive with the land severed, on severance of tenements would show that it will not extinguish under Section 47 of the Indian Easement Act.”

2. No Extinction except under S. 44, 45 and 46, Indian Easement Act

Apart from the law that easement of necessity continues as long as necessity exits, it is not extinguished otherwise than as provided in the Easement Act (also). The relevant provision of law as to extinction of Easement is laid down in Sections 44, 45 and 46 of the Indian Easement Act (natural destruction, permanent alteration etc.).

Katiyar says as to the same as under:

• “According to Section 47 of the Act there cannot be any extinction of easement, which has been used by way of necessity. There could not be any extinguishment of easement of necessity, merely because of the reason of non-mention of the same in the documents or an omission made. (R. Prabakaran v. Ambujathammal 2004 (3) LW 240)”

Quoting above passages of Katiyar, it is observed by the High Court (Achuthan Nair, v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104), as under:

• “This would make the legal position crystal clear that a coextensive and coexistent incident – the easement of necessity – will not extinct or extinguish except under Sections 44, 45 and 46 of the Indian Easement Act …..”

3. No “Mutual Destruction” between ‘easement of necessity’ and ‘grant’

There will be no “mutual destruction” between ‘easement by grant’ and ‘easement of necessity’ for the above two reasons; that is –

• 1. Easement of necessity continues as long as necessity exits.
• 2. The easement of necessity will not extinguish except under Sections 44, 45 and 46 of the Indian Easement Act (natural destruction, permanent alteration etc.)

4. Sree Swayam Prakash Ashramam v. G. Anandavally Amma

The High Court then referred to Sree Swayam Prakash Ashramam v. G.Anandavally Amma , AIR 2010 SC 622: 2010 (2) SCC 689, observing as under:

• “11. In Sree Swayam Prakash Ashramam and Ors. v. G. Anandavally Amma and Ors. (MANU/SC/0010/2010), both the claim of easement of necessity and easement of grant came up for consideration by way of a suit for declaration of easement of necessity or of grant and a permanent prohibitory injunction.”

The High Court splendidly pointed out the following from the Apex Court decision –

• The Apex Court accepted the finding of the High Court regarding existence of implied grant and found that it would not be necessary to deal with the decision on easement of necessity which necessarily involves an absolute necessity.
• Though the ingredients which would constitute easement of grant (or implied grant) and easement of necessity are different and cannot reconcile themselves,
• and (there may be) embargo in maintaining a suit for easement by grant (or implied grant) along with a relief of easement of necessity
• or inconsistency in maintaining both the claims at the same time
• (they) were not taken up, “presumably on the reason that there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity.”

Swayam Prakash Case Did Not Consider the Doctrine – ‘Mutually Destructive‘

Sree Swayam Prakash Ashramam v. G.Anandavally Amma is a classic decision on ‘easement by implied grant’.

In that case, plaintiff claimed “easement of necessity or of grant”.

Though the plaintiff pleaded only ‘Grant’(and not Implied Grant), the Apex Court allowed ‘Implied Grant’, observing by the Apex Court as under:

• “It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Therefore, the Kerala High Court precisely observed it can be “presumed” that ‘there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity’.

Conclusion

Inasmuch as

• (i) it is a fact that the courts in India consistently followed the principle that the easement of necessity and easement by prescription are mutually destructive claims (because, Easement of necessity is based on implied grant – based on some sort of ‘consent, approval or permission’; and, Easement by Prescription  is acquired by prescriptive or hostile acts); and
• (ii) the Supreme Court, in Sree Swayam Prakash Ashramam v. G.Anandavally Amma , AIR 2010 SC 622, did not consider this point,

the ensuing decision (in the reference to larger bench made by the single judge) in  Achuthan Nair, v. Vasudevan, 2020-5 KHC 647 is of seminal importance.

Read Blogs:

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• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Easement of Necessity and Prescriptive Easement are Mutually Destructive; But, Easement of Necessity and Implied Grant Can be Claimed Alternatively
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Property Law