JUDGMENT
L. Narasimha Reddy, J.
1. This second appeal is directed against the judgment and decree in A.S. No. l of 1996, on the file of the Principal District Judge, Nalgonda, through which, the judgment and decree, of the Court of the Junior Civil Judge, Nalgonda, in O.S. No. 1 139 of 1991, was reversed. The appellants are the defendants in the suit. Their father and the 1st respondent are brothers, and the 2nd respondent is the son of the 1st respondent.
2. The father of the appellants, the 1st respondent and their two other brothers, constituted a Hindu Joint Family. They partitioned their lands about 30 years prior to the filing of the suit. One item of the landed property held by the joint family, was the land in Sy. No. 63, admeasuring Ac.4.20 guntas, situated at Parapallygudem, Nalgonda, and it abutted the road on the northern side. In the partition, one acre, immediately abutting the road, and Ac.2.20 guntas, on the southern side, was allotted to the father of the appellants. A piece of one acre, lying in between, fell to the share of the 1st respondent. In another piece of land, of Ac. 1.30 guntas, was in Sy. No. 49, at a little distance. The same parties got equal share in that land. About 15 years after the partition, an exchange took place, whereunder one acre of land in Sy. No. 63, on the northern side, was given to the 1st respondent, and in exchange, he gave his share of land in Sy. No. 49, to the father of the appellants. The appellants, in turn, have laid a pipeline from their land in Sy. No. 49, to their share of land in Sy. No. 63, which passed through the two acres of land, that is held by the 1st respondent, after the exchange.
3. Disputes arose between the parties, and in fact, some criminal cases have ensued. The respondents obstructed the appellants from passing through their portion of land in Sy. No. 63, for reaching the rear portion of Ac.2.20 guntas. The respondents filed the suit for a declaration that the appellants do not have any right to pass through their land, shown as ‘A’ Schedule, to the plaint.
4. The suit was resisted by the appellants, stating that even while the land in Sy. No. 63 was undivided, its access was from the road on the northern side, and after partition also, the 1st appellant himself used to pass through the one acre of land, on the northern side, that fell to the share of their father. It was also urged that the very fact that a pipeline was laid across the suit schedule property, discloses that there existed an easement in their favour, and that the respondents are not entitled for any declaration, prayed for, in the suit. Through its judgment dated 15-12-1995, the trial Court dismissed the suit. A.S. No. l of 1996, filed by the respondents was allowed on 23-12-1999. Hence, this second appeal.
5. Sri A. Sudarshan Reddy, learned Counsel for the appellants submits that the road, on the northern side, was the only access to the land in Sy. No. 63, when it was held by the joint family, and even after partition, the respondents as well as the appellants were having access to that road, by passing through the lands allotted to other parties. He contends that prior to the filing of the suit, there existed such a practice for a period of 15 years, and the suit came to be filed only on account of the differences that arose between the parties. He submits that the trial Court recorded clear findings that there does not exist any alternative access to the land of the appellants, and the lower appellate Court reversed the same, on the basis of certain inferences, not supported by record. He contends that even after finding that the oral evidence adduced by the appellants is not satisfactory, the lower appellate Court had decreed the suit. He places reliance upon certain judgments, in support of his contentions.
6. Sri M. Rajamalla Reddy, learned Counsel for the respondents, on the other hand, submits that whatever may have been the practice and usage that existed before the partition and exchange took place, once the parties herein have become absolute owners of the respective shares, the other do not have any easementary rights over such properties. He contends that there is an alternative path, to reach the land of the appellants, as well as the neighbouring lands, and that the right claimed by the appellants, does not fit into the parameters of Section 13 of the Indian Easements Act, 1882 (for short ‘the Act’). He too placed reliance upon certain precedents, in support of his contentions.
7. The dispute in this second appeal is, in relation to the right of access to the southern portion of Ac.2.20 guntas of land belonging to the appellants in Sy. No. 63, across the northern portion of two acres held by the respondents. The relationship of the parties and ownership of the respective shares is not in dispute. Taking the respective contentions into account, the trial Court framed two issues : one, touching on the relief of declaration, and the other, on the relief of injunction. The 2nd respondent was examined as PW-1, and two brothers of the 1st respondent were examined as PWs.2 and 3. They filed Exs.A-1 to A-11, which relate to the ownership of the lands in question. On behalf of the appellants, the 2nd appellant was examined as DW-1, and two other witnesses were examined as DWs. 2 and 3. Exs.B-1 to B-5 were marked on their behalf.
8. The declaration sought in the suit is almost to the effect that there does not exist any easementary or other rights, in favour of the appellants to use the passage in question. Therefore, the burden was upon the respondents, to prove the absence of such rights. The lower appellate Court agreed with the trial Court to the effect that the oral evidence adduced by the respondents was absolutely of no use, to decide the question. It mostly went by the application of legal principles as to the existence of right, or the lack of it, in favour of the appellants.
9. Easement is a right, which the owner of one property possesses over the property belonging to another, in the matter of proper and beneficial enjoyment of his own property. Section 5 of the Act defines and describes certain characteristics of easements, depending on the nature and purport of such right. The section reads as under:
“Section 5 : Continuous and discontinuous, apparent and non-apparent easements :- Easements are either continuous or discontinuous, apparent or non-apparent.
A continuous easement is one whose enjoyment is, or may be, continual without the act of man.
A discontinuous easement is one that needs the act of man for its enjoyment.
An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.
A non-apparent easement is one that has no such sign.”
10. In the limited context of this case, it is not necessary to refer to the fundamentals of easements and the way in which they operate. Whatever may be the requirement of a valid and enforceable easement, where the dominant and servient owners are strangers, different connotations arise, where the easementary rights are in respect of a property, which, hitherto, was enjoyed in common, but later on came to be enjoyed separately, on account of partition. The reason is that the requirements for the effective and beneficial use of a property as a unit, do not remain the same, after it is fragmented, on account of partition. For example, in respect of a block of land, that abuts a road, there does not have any necessity of easementary rights for the effective use of it. Where, however, it is partitioned, in such a way that the portion abutting the road fell to the share of one, and the one on the rear side had been allotted to the other, the necessity arises for the latter, to have access to the road, through that of the former. The necessity to recognize easementary rights arises, where the parties did not agree upon any specific rights in this regard. In such cases, the average period for which, the usage ought to be in force, the implied consent of the servant owner etc., assumes secondary importance. The necessity and the earlier consanguinity of the parties, and the location of the properties acquire prominence.
11. It is in this context that Section 13 of the Act prescribes for different sets of norms, in the matter of recognizing easements of necessity. Clauses (e) and (f) thereof provide a different set of norms, in the context of partition of joint properties. The clauses read as under :
”Section 13 : Easements of necessity and quasi easements :-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 (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, 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
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. 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) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e) are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.”
12. These clauses were held to be operating in their own respective fields and not to the exclusion of each other. For instance, for the easement referred to in clause (e), the necessity for enjoying the share, by itself, is a justification to recognize easement, whereas, in clause (f), the necessity is to be supplemented by the existence of characteristics of easements, such as the apparent and continuous. Though necessity is a common phenomenon in both the instances, its intensity differs.
13. The second major difference is that in case of clause (e) the entitlement of the dominant owner for the easement is absolute, whereas in the case of the other clause, it is subject to any different intention, that may be express, or is evident from the necessary implication.
14. In G. Satyanarayana v. G. Venakatachalapathi, AIR 1969 AP 131, this Court dealt with the recognition of an easement, in the context of partition, and in relation of rights to air and light, which obviously fell in clause (f). It was held as under :
“An easement, apparent, continuous and necessary for enjoying the portion served from the transferor’s land or from the other portion of the partitioned land will undoubtedly pass to the transferee or to the sharer to whose lot the property has fallen unless a contrary intention is expressed either in the instrument of transfer of partition or there has been a specific agreement in regard to that at the time of partition.”
15. In Ramanamma v. Anthamma, , this Court discussed the provisions of Section 52 of the Transfer of Property Act, on the one hand, and Section 8 of the Easements Act and held that an easement is a right or interest in the immovable property, owned by another.
16. In Seetharamappa v. Appaiah, , the distinction between the nature of easements provided for under clause (e) and (f) of Section 13, was explained as under :
“(1) In cases of partition, if an easement is one of necessity, a person to whose share certain property falls is entitled to the easement apart from any question of its being apparent or continuous but that if the easement is not one of the necessity but is merely one necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, then such an easement should be apparent and continuous.”
17. A Division Bench of the Madras High Court reviewed the English and Indian cases on the subject upto the year 1930 in relation to a case, which fell under clause (f) of Section 13, and ultimately held that the plaintiff in that case did not establish the necessity, and since the easement was neither apparent nor continuous, it did not pass the test under that provision. In other words, if the person claiming an easement, consequent upon a partition is able to establish the necessity, it is permissible to recognize the same. Much, however, would depend upon the nature of proof. Existence of alternative road and approach was treated as an important factor in this regard.
18. Reverting to the facts of the case, though the relief was claimed by the respondents, in the form of a declaration and injunction, it fell upon the appellants to prove the existence of the easement. The evidence of PWs.2 and 3, the brother of the 1st respondent, was found to be of no use, since they did not get any share in that survey number, nor their evidence was consistent.
19. Coming to the evidence of the appellants herein, it was clearly established that before the exchange of the shares took place, the respondents had one acre of land in Sy. No. 63, between the two pieces of land, in the same survey number that were allotted to the father of the appellants. It was not in dispute that the respondents have been passing through the northern portion of one acre of land, that fell to the share of the father of the appellants, till it was exchanged, for another piece of land in Sy. No. 49. The very fact that the appellants laid a pipeline across the lands of the respondents upto their land of 2.20 guntas, the rear portion of the survey number, not only suggests, but also establishes the exercise of a dominant right by the appellants herein, and the corresponding servient and tenement, attached to the land of the respondents. The lower appellate Court made extensive observations to the effect that the easementary rights pleaded by the appellants was not in force for a considerable period, for being recognized. Such an approach does not accord with the special status assigned to easementary rights, associated with partition of properties.
20. It cannot be denied that access to any property, which is severed from the road, on account of partition, is an acute necessity, for the use of it. If the respondents were able to prove that there existed an alternative and convenient road or path for the appellants to reach their land, the necessity for recognition of the easement can certainly be doubted. It has come in the evidence that the path ‘C’ and ‘D’ was not upto the land of the appellants in Sy. No. 63. The trial Court made an apt and relevant observation to the effect that the owners of the other lands cannot be expected to accommodate the necessity of the appellants, when the respondents, who not only shared the land in the same survey number with the appellants, but also got an otherwise advantageously situated plot from them, in exchange, are reluctant. The reports of the Commissioners appointed by the Court disclose that there was no path as such on the lines pleaded by the respondents. On the other hand, the evidence reveals that there existed a path across the land of the respondents in Sy. No. 63, for reaching the land of the appellants in the same survey number. Viewed from the angle of an independent and absolute necessity, or from the context of absence of any alternative passage, it emerges that the appellants had an easementary right of passage, vis-a-vis the land of the respondents on the northern side of the survey number.
21. For the foregoing reasons, the second appeal is allowed, and the judgment and decree of the lower appellate Court is set aside. The decree of the trial Court is restored. It is however, made clear that the appellants shall be entitled to use the path to such a minimum extent and in such a way as not to cause any damage to the crops or property of the respondents. The path, which was found to be existing across the land of the respondents, shall be permitted to be used, without any interruption. There shall be no order as to costs.