KARUNAKARAN Vs. JANAKI AMMA

JUDGEMENT

(1.) In execution of a decree declaring a right of way as an easement of necessity and allowing consequential reliefs, the decree holders took steps to carve out the way provided in the decree by the issue of a commission. Judgment debtors objected on the ground that subsequent to the decree the easement of necessity ceased to exist by the decree holder acquiring another way by the purchase of an adjacent property and therefore the decree has become unexecutable. That contention was rejected by the execution court which held that it cannot go behind the decree. Judgment debtors have come up in revision challenging that order.

(2.) Whether there was acquisition of an adjacent property after the decree by the decree holder providing another access to the dominant tenement of the decree holder itself is a moot point on a question of fact. A decision on that aspect and a consequent finding that the decree has become unexecutable by cessation of the easement of necessity declared by the decree are conditions precedent to accepting the objection that the decree has become unexecutable. The question for consideration is whether the execution court can go to that extent.

(3.) Easement of necessity arises on the severance of tenements by transfer inter vivos, bequest or partition as envisaged in clauses (a), (c) and (e) of S.13 of Indian Easements Act, 1882. Transferor, transferee, testator, legatee or sharer, of a portion of an undivided estate in any of the above cases is entitled to such an easement provided it is necessary for enjoying the subject of transfer, bequest or partition and in the case of a testator for enjoyment of what remains with him. For that purpose no express provision in the document making a grant is necessary because the rationale or the legal basis of it is not any express grant but an implied grant as of necessity for enjoyment. Lands could be conveniently enjoyed in many cases only if the owner is able to have access to it and therefore the doctrine of implied grant is to meet the necessity of a particular case to avoid land lock. Law prescribes an easement by implied grant in such cases only to the extent of absolute necessity and not for convenient or reasonable enjoyment. The right is only in cases where without it the tenement cannot be used at all. It is the outcome of the former jointness which was severed resulting in necessity of fresh access. When property is conveyed which is so situate relatively to that from which it has been severed that it cannot be enjoyed without a particular privilege in or over the land of the grantor, the grant of it is implied and passes over without any express words. The word 'necessary' will have to be construed in its ordinary sense. When there is another means by which there is access the question of such an easement will not arise at all because 'necessity' implies that it is not a rule of convenience. Mere common ownership and subsequent severance will not create an implied grant.