MATHU Vs. VARIED

JUDGEMENT

(1.) Appellant is the plaintiff who lost his case for permanent injunction and mandatory injunction in the Courts below. Plaintiff claimed right of easement through the defendants' property. Though the plaintiff claimed easement of necessity as well as easement by prescription, the latter claim was not pressed before the District Judge. The plaintiff restricted the claim to the right of way as an easement of necessity. This is the only claim urged before this Court as well.

(2.) Chief contention of the plaintiff is that both the Courts below overlooked the fact that the alternative pathway through the paddy field on the south of his property is highly inconvenient and at any rate thoroughly unusable during the rainy reason and thereby grossly erred in dismissing the suit. Counsel for the defendants submitted that the Courts below have concurrently upheld the existence of an alternative way to the plaintiff's property and hence he cannot claim a right of way through the defendants' property as easement of necessity. The learned District Judge held that it is proved from the evidence of Pws. 2 and 3 and Ext. Cl commission report that the, plaintiff has ingress and egress through the paddy field on the south.

(3.) The existence of alternative pathway however inconvenient it be, is sufficient to reject the plaintiff's claim of easement of necessity. In a case where it is established that aa outlet is available to the plaintiff other than the one claimed by him through the defendant's property it goes without saying that easement of necessity does not exist. Where there is another way by which plaintiff has access to his property be cannot claim easement of necessity. The necessity must be an absolute necessity and not a convenient mode of enjoyment of property. It may be that a plaintiff would very much like to have a short cut to the main thoroughfare through defendant's property and does not want to use alternative way available to him. An easement of necessity cannot be granted merely on the ground of convenience and advantage. It is solely dependent upon absolute necessity. Necessity cannot be understood as mere rule of convenience. In 1961 KLT 829 (Zachariah v. Kallyani Amma & others) it was held that if there is any other way, no matter how inconvenient it be there cannot be any easement of necessity. In the present case as there is ample evidence to show that the plaintiff has ingress and egress through the paddy field, it is not possible to hold that he has established a case of easement of necessity through the defendants' property. It may be true that the pathway through the paddy field is not good enough for vehicular traffic or that the user of it may be inconvenient and troublesome to the plaintiff. But that is not sufficient to claim easement of necessity. In considering the question of easement of necessity convenience is not the criterion but absolute necessity. Even if it is assumed that the way claimed by the plaintiff is the most suitable and highly convenient to him he cannot claim easement of necessity as the Courts below found that he has ingress and egress through the paddy field. Mere inconvenience to pass through a pathway available to the plaintiff would not be sufficient to establish easement of necessity.