JUDGMENT
Jwala Prasad, J.
1. This appeal relates to a question of easement claimed by the plaintiff. The plaintiff and the defendant are cousins and there was a partition between them in the year 1901, when all their properties immoveable and moveable were divided between them. There were two contiguous houses owned by them jointly. On partition the eastern one fell to the share of the ‘ defendant and the western to that of the plaintiff. Prior to the partition there was a doorway between the two houses and other necessary requirements which were suitable for the enjoyment of the occupants of both the houses. In the building allotted to the plaintiff there is a 3rd storey or second floor, the access to which was through the terrace or mundera appertaining to the building allotted to the defendant. The defendant interfered with this passage and closed up the way to it. The plaintiff, therefore, instituted the suit out of which this appeal has arisen, for a declaration that the defendant had no right to interfere with the plaintiff in the use of the terrace B C in the map attached to the plaint and for a perpetual injunction against him. This claim in the plaint was based upon the fact that the way to the 3rd story was in existence prior to the date of the partition and had since been continuously and without any interruption used and enjoyed by the plaintiff up to the time of the interference on the part of the defendant. The right of the plaintiff to use the terrace in dispute was disputed by the defendant. The principal issue raised in the case was issue No. 3–“Has the plaintiff acquired any right of easement in the property in dispute and has he any right to restrain the defendant from closing the door and passage?” The Munsif who tried the case held that the plaintiff did not prove his right to use the disputed land which is a part of the defendant’s building as an easement for 20 years, and, therefore, had no right accrued to him. In dealing with this issue the Munsif observed that in the plaint the right of easement claimed is said to have been acquired by user. On appeal the learned Subordinate Judge reversed the decision of the Munsif and decreed the plaintiff’s suit, The finding of the Munsif that the plaintiff failed to prove that he had acquired under the law the right of easement upon the ground of user has not been disturbed by the learned Subordinate Judge. In this appeal it is not disputed by the learned Counsel on behalf of the respondent that the plaintiff’s right of easement on the ground of user must fail. The learned Subordinate Judge, however, has granted the plaintiff’s right to the use of the defendant’s land as an easement of necessity. It is objected on behalf of the defendant that the lower Court was wrong in giving decree to the plaintiff upon the aforesaid ground as it was not urged in the plaint. The objection was, however, overruled on the ground that there was nothing to show in the plaint that the plaintiff claimed a right of easement of user and not a right of easement of necessity. Beading the plaint and the issues, it is difficult to support the Subordinate Judge in this view; but it is not necessary to pursue this point further, for admitting that the plaintiff was entitled in appeal before the Court below to raise the point, it is obvious that the finding of the Court below that the plaintiff is entitled to the right of way claimed as an easement of necessity cannot be supported.
2. The plaintiff has not produced any partition deed. On the other hand, the deed of the agreement of partition executed by him in favour of the defendant has been produced by the latter and is marked Exhibit J. The Munsif clearly says in his judgment that there is no trace in this deed of agreement, Exhibit J, of the right set up on behalf of the plaintiff. The Subordinate Judge also has accepted this ill the following words: “On referring to the partition-deed it appears that there is provision for closing a common passage and a drain and it was silent as to the way leading to the 3rd storey which has now fallen into the plaintiff’s share.” I have also gone through this deed, and it appears to me that the Courts below are correct in the view that in it there is absolutely no mention of the path claimed by the plaintiff. The right of the plaintiff to the use of the defendant’s terrace as a way for the plaintiff to his 3rd storey has not been expressly granted or reserved in the deed. There is no reservation by implication even of any such right in the deed, not even expressions of a general right to the use of the building allotted to him, such as “appurtenances”, ”appertaining” or “rights and accompaniments” or ”existing rights”, or “rights used, occupied and enjoyed”, find a place in the document. It is needless, therefore, to consider the authorities quoted at the Bar, which have construed the aforesaid expressions as being sufficient or insufficient as conveying the right to the use of certain easements. It is true that the terrace in the defendant’s building was used as a passage to the 3rd storey when both the houses were jointly owned by the plaintiff and the defendant and that the plaintiff has not constructed any other way, to the 3rd storey. The finding of the Court below is that “even after partition the plaintiff has been using this way which is the only way to go up to the 3rd storey and without which the chhat is unapproachable, for a very long time without any objection.” But there is no finding, and my attention has not been invited to any evidence on the record, that the plaintiff could not in any way construct a passage from his own land leading to the third storey in question. No doubt the passage in question might be the most convenient way for the plaintiff and that it was used so long by him. The plaintiff ought to have exhausted all possible ways of communication to the third storey. On the record as it stands, it is impossible to hold that it was the only way by which the plaintiff could enjoy the use of the house after the partition. Indeed looking again at the plan of the house annexed to the plaint, which might be treated as a part of the judgment, it is obvious that from his own house on different points the plaintiff could construct a staircase leading to the third storey in question. Whatever may have been the views before, the question has been set at rest by the decision in the well-known case of Wheeldon v. Burrows (1879) 12 Ch. D. 31 : 48 L.J.Ch. 853 : 41 L.T. 327 : 28 W.R. 196. That case was followed in the case of Union Lighterage Co. v. London Graving Dock Co. (1902) 2 Ch. 557 : 71 L.J. Ch. 791 : 87 L.T. 381 : 18 T.L.R. 754 and recently in the case of Ray v. Hazeldine (1904) 2 Ch. 17 : 73 L.J.Ch. 537 : 90 L.T. 703. It has been conclusively settled that an easement of necessity can only arise ‘ when the property cannot be used at all and not where it is merely necessary to the reasonable enjoyment of the property,” and as observed by Groddard, pages 38, 39, 6th Edition, “An easement of necessity points to the fact that there must be absolute necessity before the law will compel a land-owner to submit to so detrimental a right as an easement in his land, a right–in reality though not in theory–imposed on his land against his will. It must be borne in mind how detrimental generally it is to an estate to be burdened with an easement, what a nuisance it is to an owner of land to have another person walking at his pleasure over a field…and how such rights may prevent building on land or using it in many of the ways the owner may desire.” That principle has been embodied in Section 13 of the Indian Easements Act which is not applicable to this part of the country. The principle upon which that section was enacted is based upon the English oases and is consonant to reason and common sense. Clause E of that section says: “Where a” partition is made of the joint property of several persons–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.” The easements mentioned in clauses A, E and F of Section 13 are easements of necessity. A right of way or passage is not a continuous easement, and, therefore, it can only be allowed when without the easement in question it is impossible to use the dominant tenements to which the easement is claimed. It has been urged on behalf of the respondent that at the time when the partition took place between the members of the family there was only one way to the third storey, that is, by the disputed terrace, and as no other way existed the possibility of the plaintiff being able to construct another passage cannot take away his right of easement of necessity. This point appears to have been disposed of by the Allahabad High Court in the case of Sukhdei Bibi v. Kidarnath 9 Ind Cas. 628 : 33 A. 467 : 8 A.L.J. 230, the facts of which case appear similar to this case. The right of way as an easement, of necessity after partition of the joint house claimed in that case was disallowed. The observation at page 472 is that “he (the plaintiff) certainly can open a door towards the north for access to his share.” It is clear from this that the plaintiff cannot claim the easement of necessity unless he can show that it is not possible for him to construct a new passage for his use: in other words, the’ plaintiff must make out that the use of the way claimed is one of absolute necessity and not merely necessary or convenient or that it was used so long by him. This view is supported by a string of authorities of all the Courts and it is unnecessary, therefore, to mention all of them that have been quoted at the Bar. Suffice it to say that the cases of Krishnamrazu v. Marraju 28 M. 495 : 15 M.L.J. 255, Esubai v. Damodar Ishvardas 16 B. 552 : 8 Ind. Dec. (N.S.) 847, C.H. Crowdy v. L. O’Reilly 17 Ind. Cas. 986 : 16 C.L.J. 417 and Ram Narain Shaka v. Kamala Kanta Shaha 26 C. 311 : 13 Ind. Dec. (N.S.) 803 are dead against the plaintiff-respondent. The authority quoted by the Subordinate Judge, namely, Charu Surnokar v. Dokouri Chunder Thakoor 8 C. 956 : 10 C.L.R. 577 : 7 Ind. Jur. 86 : 4 Ind, Deo. (N.S.) 616, is based on Pyer v. Carter (1857) 1 H. & N. 916 at p. 923 : 26 L.J. Ex. 258 : 28 L.T. (O.S.) 371 : 5 W.R. 371 : 108 R.R. 896 : 156 B.R. 1472) which has since been overruled. The case of Kadambini Debi v. Kali Kumar Haldar 26 C. 516 : 3 C.W.N. 409 : 13 Ind. Dec. (N.S.) 932 refers to a right of light and air, and not to a way which is neither continuous nor always an apparent easement. Perhaps the attention of the Court was not drawn to the later decisions of the same Court.
3. For these reasons the appeal is allowed and the judgment of the Court below is set aside. The appeal is decreed with costs; the plaintiff’s suit stands dismissed.