Easement By Necessity Not Available When There Is Alternative Way To Access Property : Supreme Court

Recently, the Supreme Court observed that the claimant of an easementary right wouldn't be entitled to claim the 'easementary right by necessity' for enjoying the 'Dominant Heritage' (the property owned by the claimant) when there exists an alternative way to access the 'Dominant Heritage' apart from the way over which the easementary rights were claimed to access the Dominant Heritage.

“The easementary right by necessity could be acquired only in accordance with Section 13 of the Indian Easement Act which provides that such easementary right would arise if it is necessary for enjoying the Dominant Heritage. In the instant case, findings have been returned not only by the appellate courts but even by the trial court that there is an alternative way to access the Dominant Heritage, which may be a little far away or longer which demolishes the easement of necessity...Thus, the Gala's (claimant) are not entitled to any easementary right by necessity upon the disputed rasta.”, the Bench Comprising Justices Pankaj Mithal and Prashant Kumar Mishra said.

The court explained two words i.e. 'Dominant Heritage' and 'Servient Heritage'.

Dominant Heritage is the land that is to be enjoyed by the beneficiary, whereas the land on which the easement is claimed is called Servient Heritage.

Section 13 of the Indian Easements Act, 1882 states about easementary rights by necessity.

The Judgment authored by Justice Pankaj Mithal stated that the easementary right by necessity over the 'servient heritage' would arise if there's no alternative way to access the Dominant Heritage.

The court clarified that when there's an alternative way to access the dominant heritage apart from the servient heritage, which may be a little far or longer then the ground of easement of necessity would be demolished.

After finding that the claimant had an alternative way to access the dominant heritage apart from the subservient heritage, the court denied any easementary right by necessity upon the disputed rasta to the claimant.

Case Title: MANISHA MAHENDRA GALA vs. SHALINI BHAGWAN AVATRAMANI

Citation : 2024 LiveLaw (SC) 301

Click here to read/download the judgment