AIR 1978 GUJARAT 62

Gujarat High Court

Hon'ble Judge(s): S. Obul Reddi , C.J. AND N. H. Bhatt , J

Easements Act (5 of 1882) , S.13— Easement of necessity - Right of way - Easement of necessity if can survive after the alternative outlet is available. Easement of necessity would no longer be available when alternative way is available to the claimant of that right.(Para 11) In the instant case the co-owners of Survey No. 73-B had mutually divided the land making the Survey Nos. 73-B-1 and 73-B-2 and thereafter the owner of Survey No. 73-B-2 had taken off his claim over Survey No. 73 A and so the owner claiming that right of easement was the plaintiff the owner of Survey No. 73-B-1. R the owner of Survey No. 73-B-2 had put up his construction in such a way as to make it impossible for the plaintiff to go out of his property of Survey No. 73-B-1. The action on the part of a co-owner or any action on the part of the owners of a dominant heritage cannot work to the detriment of the owner of the servient heritage. In other words it was not open to the plaintiff and R to so divide their properties that the burden on the servient heritage of the defendants, which burden was contingent on the non-availability of any alternate way for the dominant owners could continue to hang on servient heritage even after the contingency ceased. Simply because the plaintiff and R had taken into their heads to divide the property in ....