Judgment:
1. The controversy in appeal here concerns access to a vacant plot. This vacant plot of the plaintiff-Balbir Singh lies behind the premises let out by him to the defendant-Sawan Singh and as would be apparent from a reference to the site plans on record, namely exhibits P/1, P/2 and D/3 and as also so found by the lower appellate Court, the only passage to it lies through the site on rent with Sawan Singh.
The point arising for consideration now being--whether the plaintiff can claim a right to use this passage and the defendant be consequently restrained from obstructing him from doing so. This right is claimed as an easement of necessity.
2. According to the case as set up by the plaintiff, he had been passing through the site on rent with the defendant for going to his vacant plot behind it. The entry to this vacant plot being through a door marked 'X' in the site plan exhibit P/2. It was specifically averred that there was no other way for going to this plot except through the land in the occupation of the defendant. It was said that since the last 3 or 4 months, the defendant had stopped the plaintiff from going through his land and had also closed the door at point 'X'.
3. In his written statement, the defendant took the plea that there was another passage for the plaintiff to his vacant plot from the West which he had since rented out.
4. It was the finding of the lower appellate Court that the property referred to by the defendant on the West of the vacant plot did not belong to the plaintiff and the plaintiff consequently had no access to his plot from that side and as mentioned earlier, the only passage was through the site on rent with the defendant. The relief prayed for by the plaintiff was, however, denied to him on the ground that there was no door at point 'X' in the site plan exhibit P/2 and the plaintiff had not pleaded the necessary facts to claim this passage as an easement of necessity.
5. It is no doubt true that the expression 'Easement of necessity' does not figure in the plaint but a reading of it would show that it had been specifically averred there that there was no other way for going and coming from this vacant plot except through the site in the occupation of the defendant. When confronted with this plea all that counsel for the defendant sought to contend was that the omission here was that it had not been pleaded that the vacant, plot and the site in the possession of the defendant originally constituted a single tenement. Further that there was no issue regarding such right of easement. When asked what prejudice would be caused to the defendant if the matter of 'easement of necessity' is permitted to be taken up for consideration on the material on record. Counsel stated that the prejudice lay in the fact that had such a plea been raised, the defendant could have sought to defeat the right claimed by pleading that the plaintiff was the owner of both the tenements and could not thus claim any right of easement over the site with the defendant. In other words, as the relationship between the plaintiff-defendant was that of landlord and tenant, no right of easement could be claimed by the plaintiff over the land held by the defendant. This is indeed a contention wholly devoid of merit.
6. The point sought to be canvassed by the counsel for the defendant to defeat the plea of easement of necessity was founded upon State of Gujarat v. Hiralal Motilal Luhar, AIR 1980 Guj 146. This was a case where a sub-lessee of a shop owned by the government sought an easement of necessity over an adjacent government land. In denying this claim, it was held that the essential ingredients of easement required that there should be two separate tenements-dominant and servant and the owners thereof should be different and the right must relate to doing of an act upon a land not his own. In the case of a sub-lessee of a shop owned by the government, both the owner of the dominant tenant, that is the shop and the owner of the servient tenement, that is, the land, being the same, namely; government, there could not be any right of easement over it. It was mentioned in this behalf that the first condition under S. 13 of the Easements Act is that the immovable property as such has to be transferred and the creation of a sub-lessee does not amount to such transfer as contemplated by that provision of law. It was, however, observed that may be, the transfer is in the form of only an interest in the property and may, therefore, include its letting out, but it must be by the owner because it has to be connected with another property belonging to the transferor. The lessee not being the owner of that adjacent land, the question of easement of necessity does not arise. This case, it will be seen, is clearly distinguishable on facts from the situation as exists in the present case and cannot thus be taken to support the contention raised.
7. A reference to the provisions of the Indian Easement Act, 1882 would show that in the definition of easement and the dominant and servient heritages and owners, in S. 4 thereof, the mention is not only of the owner, but also the occupier. Being separate occupier, the plaintiff and the defendants held distinct tenements. It is apparent that if passage to the plaintiff through the defendant's tenement is denied, he cannot use his tenement at all. This thus provides a classic illustration of an easement of necessity, which was defined in Abhoya Chandra Ghose v. Raj Kumar Ghose, AIR 1920 Cal 850, as 'It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all.....'. Further it would be relevant here also to advert to Trustee Mondal v. Kenaram Mondal, AIR 1921 Cal 231, where it was observed, 'Where a man disposes of a part of his land and that part affords an accommodation to the part retained, that accommodation will, upon severance, ripen into an easement,. if it be such as to be absolutely necessary for the enjoyment of the part retained and the accommodation be such that it is capable of constituting the subject-matter of an easement.'
8. Such being the settled position in law and there being this clear finding that the plaintiff cannot use his vacant plot at all except by a passage through the site on rent with the defendant, it must indeed be held that the plaintiff is entitled to a right of passage through this land and this right constitutes an easement of necessity. Absence of a specific mention of easement of necessity in the plaint thus constitutes no prejudice to the defendant.
9. Accordingly, in terms of S. 14 of the Easement Act, the defendant is given an option to set out a reasonably convenient passage for the plaintiff through site on rent with him to the vacant plot of the plaintiff. If he fails to do so, by on or before November 10, 1986, it shall be open to the plaintiff to set out such passage for himself. An injunction is also granted to the plaintiff against the defendant restraining him from obstructing him from using the passage so set out.
10. The judgment and decree of the lower appellate court is accordingly thus set aside and this appeal is hereby accepted. There will, however, be no order as to costs.
11. Appeal allowed.