MUSAMMAT SUKHDEI BIBI Vs. KIDARNATH

JUDGEMENT

(1.) One Sukhdei got a decree for a portion of certain buildings and the rest was given to Kidarnath. It is admitted that the buildings before partition belonged to one owner and that the decree reserved no easement of way in favour of Kidarnath.

(2.) Sukhdei, in execution of the decree, applied for the possession of the share allotted to her. Kidarnath objected that he had the easement of way over the doorway in question. The Court below granted the easement claimed by him. Sukhdei appealed to this Court and her learned Advocate contended that the Court below, as an Executing Court, could not grant an easement which had not been awarded by the decree. We, by our order dated the 11th of July 1910, remitted the following issue to the Court below for trial: Is the doorway, over which the lower Court has granted the right of passage, the only means of egress and ingress to the defendant s property?

(3.) The findings of the Court are to the effect that a door can be opened on the north in Kidarnath s share but that it will not be convenient, inasmuch as the utility of the house will be very much reduced and that excepting the doorway in question, there is no other possible and convenient means of egress and ingress to the share of Kidarnath, The learned Advocate of Sukhdei urges that, the findings fail to establish an easement of necessity which is founded upon absolute necessity and not upon a more convenient use of the dominant tenement. This contention of the learned Advocate, in our opinion, is sound.