1. This is an appeal by the State-original defendant in a suit filed by the respondent -original plaintiff being civil suit No. 264 of 1970 of the court of the learned Judge, City Civil Court, 5th Court, Ahmedabad, against, its judgment and decree dated 28th February 1974, declaring that the plaintiff, as the sub-tenant of the shop bearing municipal census No. 562A/1 standing upon a portion of survey number 690/1/B has a right of way as an easement necessity upon servient tenement admeasuring 36' north-south and 10' on east-west forming part of the open land bearing S. No. 690/l/A, lying to the west of the plaintiff's shop, and granting a perpetual injunction restraining the defendant-State, its servants and agents from disturbing the plaintiffs aforesaid right of easement in any manner.
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9. Mr. Chhaya, the learned Assistant Government Pleader appearing for the appellant-State, submits that in the instant case, the learned Judge has decreed the plaintiff's suit on a misconception and -misconstruction of law with regard to easements. As defined in Section 4 of the Indian Easements Act, 1882 ('the Act'), 'An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something, being done, in or -upon, or in respect of, certain other land not his own. The land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof the dominant owner, the land on which liability is imposed, is called the servient heritage, and the owner or occupier thereof the servient Qwner'.
10. Now, in the instant case, both the so-called dominant heritage and the so-called servient heritage are owned by one and the same person. An easement cannot be claimed and enjoyed in respect of a property belonging to the same owner. The essential ingredients of an easement are that there must be two different tenements or heritages viz. a dominant tenement and a servient tenement both of which must be owned by, two different persons viz. owned and occupied by two different persons viz. dominant owner and the servient owner and the right must relate to doing of anact etc. in or upon or in respect of certain other land which is not his own. Unless all these ingredients are satisfied, the right in the nature of easement cannot exist. Admittedly, in the instant case, the so-called dominant tenement viz. the shop for the beneficial enjoyment of which a right of easement is claimed over the so-called servient tenement is owned by the Government. The servient tenement is also owned by the Government. Therefore, the dominant owner and the servient owner are one and the same person and not two different persons. The most essential condi tion, therefore, which is required to be fulfilled for the existence of a right in the nature of easement is non-existent in the instant case and there cannot be any right in the nature of easement concerning the property bearing No. 690/I/A. The learned Judge, therefore, missed this fundamental aspect about the easement when he held that the tenant in occupation of a part of S. No. 690/l/B, had acquired a right of easement of necessity in respect of a strip of land forming part of the adjoining property bearing No.690/l/A belonging to the State which was also the owner of the land bearing No.690/l/B on a part of which the plaintiff had been inducted as a sub-tenant.
11. Similarly, urges Mr. Chhaya, the learned Judge has erred in interpreting the provisions of Section 13 and in holding that by virtue of sub-lease created by lessee Hasanbhai in favour of the plaintiff in respect of part of S. No 690/l/B, when the lessee Hasanbhai was also a lessee in respect of part of S, No. 690/l/A which included the suit land, the plaintiff became entitled to the use of the suit land as a right of way as and by way of easement of necessity on account of the said sub-lease created in his favour. It seems, the learned Judge, here also, has completely overlooked the essential ingredients of an easement of necessity. First of all, an easement of necessity has also to answer the general definition of an easement as generally defined in Section 4. Unless, therefore, it falls within the definition and answers the description of an easement as defined therein, one cannot take the second step of considering as to whether it amounts to an easement of necessity.because it has to fall within the general category of an easement first and only thereafter the question may arise as to what particular category of easement it belongs and whether it amounts to an easement of necessity. In the instant case, as earlier observed, no such easement can come into existence because both the properties that is the so-called dominant tenement and the so-called servient tenement were owned or occupied by one and the same owner. Unless the properties have two different Owners, defined as a dominant owner and servient owner by Section 4 of the Act, no right in the nature of an easement can flow. On this premise alone, the plain tiff's suit should fail
12. Turning to Section 13, the relevant provisions so far as they are material to, the question under consideration, may be noted.
13. Where one person transfers or bequeaths immovable property to another
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
Where a partition is made of the joint property of several persons-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) xx xx xx
The easements mentioned in this section, clauses (a) (c) and (e), are called easements of necessity'.
13. It would be thus seen that easements of necessity are covered by cls. (a) (c) and (e). We have only to consider whether the instant case falls within clause (a) or (c) because clause (e) is out of question. The learned Judge has held that it falls within clause (a). Here also, the very first condition which is required to be fulfilled is that the immoveable property as such has to be transferred or bequeathed and creation of sub-lease in my opinion, would not amount to such transfer as is contemplated in Section 13.
14. What is contemplated in Section 13 is the transfer or bequest by the owner of an immoveable property. May be the transfer is in the form of only an interest in the property and may, therefore, include letting out of the property. But it must be by the owner of the property because it has to be connected with another property belonging to the transferor and unless the transferor is the owner of that other property, the question of creating an easement of necessity cannot arise in respect of such property. In the instant case, Hasanbhai was not the owner of the land of S. No. 690/l/B out of which he sub-let a part to the Plaintiff. He was also not the owner of the other land viz. S. No. 690/l/A and, therefore, the question of creation an easement of necessity would not arise. Illustration (n) strengthens the view that I am taking, It is in respect of a house and grounds belonging to A who lets out the same to B for a particular business. B has no access to them other than by crossing A's land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds let out to him. In this view of the matter, the learned Judge, in my opinion, was patently in error in holding that the plaintiff was entitled to a right of way as an easement of necessity and in decreeing the plaintiff's suit which deserves to be dismissed. The appeal, therefore, succeeds.
15. Appeal allowed.