The right of easement of necessity is implied only in cases of severance of tenements

 The defendant has all along taken the plea that the 
properties of the plaintiffs are illegal structures.  This is his 
contention raised in the written statement.  What the plaintiffs now 
seek is the legalization of this illegal structure by getting the stamp 
of approval from the  Court permitting him the laying of electric 
and water pipes through this private portion of the defendants.   
The statement of the defendant recorded under Order X of the 
Code clearly states that the plaintiffs have access to their houses 
through the house of their father; it is not as if they have no other 
means to approach their houses.  Even otherwise in view of the 
definition of `easement‟ as contained in Section 4 of the said Act,  
easementary right would not include permission to lay down 
electric fittings or water pipes in the portion of the another. This is 
not the ambit and scope of the definition of `easement‟ as 
contained under Section 4 of the said Act.  


* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

                           Judgment Delivered on:  10
th November, 2010

SUKHBIR SINGH & ORS. ………..Appellants

Versus
RAM SINGH & ORS. ……….Respondents


1. The present appeal has impugned the judgment and decree 
dated 04.10.2001 which had endorsed the finding of the Trial Judge 
dated 01.09.1987 whereby the suit of the plaintiff, Sh. Sukhbir 
Singh, had been dismissed.
2. The plaintiffs (three in number) had filed  a suit against the 
defendants for permanent injunction.  Plaintiff no. 1 was stated to 
be the owner in possession  of the property no.WZ-820-A, plaintiff 
no.2 was the owner in possession of the property no.WZ- 820-B and 
plaintiff no.3 was the owner in possession of the property no. 820-C 
located on the slopes of the pahar (rock) in the abadi of village 
Naraina Delhi.  The said properties had been depicted in green, 
blue and yellow colour in the plan attached with the plaint.
3. The only approach  to their properties was through this 
street; they have an unrestricted right to use the street which had 
been depicted in red colour in the site plan. This is a public street.  
In the alternate, if it was found that this street is not public street, 
the plaintiffs are co-owners in use and in possession of this 
easementary right/right of way as this is the only mode of access to 
their houses.  Defendants have adopted an aggressive attitude and 
have threatened to prevent the plaintiffs from using this street; the 
plaintiffs are prevented from laying their pipes for the purposes of 
municipal water and electricity.  In spite of requests, defendants 
have not heeded. Suit was accordingly filed. 
4. The defendants have disputed the claim of the plaintiffs.  It is 
submitted that the approach to the houses of the plaintiffs is 
through house no. 820 which is the  house of their father.  The 
defendant no. 1 is the owner and in possession of the properties 
bearing nos. 815, 816 and 819 and the alleged passage is  the 
compound of the said properties and forms a part and parcel of the 
same.  The plaintiffs have no right over the same.  It is pointed that 
the houses of the plaintiffs i.e house no. 820-A, 820-B and 820-C 
are extensions of the original house i.e. house  no. 820 which 
belongs to their father.  Besides the fact that the aforenoted 
constructions are illegal, the plaintiffs have no right of access to 
their properties through this passage shown in red colour in the 
site plan.  It is a part of the courtyard  of  the properties of the 
defendant on which he has exclusive right and title.
5. Trial Judge had framed nine issues.  Six witnesses were 
examined on behalf of the plaintiffs and seven witnesses were 
examined on behalf of the defendants.  Their oral testimony  was 
gone into in an in-depth detail.  The site plain Ex.PW-6/1 had been 
proved through the version of PW-6.   Trial Judge held that the 
plaintiffs have no right over this passage depicted in red colour in 
as Ex.PW6/1; this is the property of the defendants.    Suit of the 
plaintiff was dismissed.
6.  Impugned judgment had endorsed this finding.
7. This is a second appeal. On 01.09.2008, the appeal was 
admitted and the following substantial questions of law were 
formulated which inter alia reads as follows:
“(1) Whether the findings of the learned ADJ and that 
of the learned Civil Judge, without reasoned issue-wise 
appraisal and discussion of the evidence on record, can 
be a „JUDGMENT‟ required by order 41 Rule 31 of CPC? 
If not, are they not liable to be set aside as perverse per 
(2001) 4 SCC 756 (Madhurkar and Others Vs. Sangram 
and Others), 2001 (3) PLR 594 (SC): (Madan Mohan Lal 
V/s. UOI), 2001 (2) RCR 605 (Dhanna Lal V/s. Smt. 
Kalavatibai) and a catena of judicial pronouncements?
(2) Whether in the undisputed circumstance of the 
only approach to the suit houses of the Appellants 
situated on the upper slope of the „Pahar‟ (ridge) in 
Village Naraina being an Urban Area of the West Zone of 
Municipal Corporation of Delhi (and before that of the 
West Delhi Municipal Committee), through the „Street‟ 
does not qualify to be held to be a „PUBLIC STREET‟ 
under Section 298 of the Delhi Municipal Corporation Act 
1957? If so, then are the contrary findings of the Trial 
and the First Appellate Court legally sustainable OR deny 
the „Righty of Way‟ and/or “Easement of Necessity” of its 
user by Appellants and take Municipal Water supply line 
and also electricity supply by cables, through it to their 
houses?
(3) Can the clear admission dated 22.03.1982 of the 
Respondent  under Order 10 CPC and of dated 
18.10.1985 as per interim injunction order of the learned
Trial Court, and written compromise dated 10.01.1982 of 
the Respondent in favour of the Appellants regarding the 
matter in controversy in the Suit be held to be “not made 
with free-will” by incorrect appreciation and misreading
thereof by the Courts vitiating their finding on the point 
in controversy?”  
8. On behalf of the appellant, it is stated that the findings in the 
impugned judgment are  a perversity. The judgment has merely 
reproduced the pleadings of the parties and the depositions 
recorded before the Trial Judge without giving any reasoning as to 
how he had arrived at the aforenoted conclusion.  Attention has 
been drawn to the judgment of the Trial Judge dated 1.09.1987.  It 
is pointed out that the Trial Judge, except in para 26 and thereafter 
in para 31, has not given any discussion as to how he has arrived at 
the conclusion. Under Order 41 Rule 31 of the Code of Civil 
Procedure (hereinafter referred to as the „Code‟)  such a cursory 
approach does not qualify as a  `judgment‟.   Counsel for the 
appellant has placed reliance upon  a judgment of the Supreme 
Court reported in JT 1993 1 (SC) 213 titled as Rameshwar Dayal 
Vs. Banda through his LRs to support his submission that under the 
Code, the word „judgment” as defined in Sub-section 2(9) means 
“the statement given by the Judge on the grounds of  a decree or 
order”;  the court is bound to give a concise statement of the case, 
the points of determination, the decision thereon and the reasons 
for such a decision; this is lacking in this judgment of the  Trial
Court.  It  is  pointed out that the First Appellate Court in fact on 
internal page 7 of the judgment has itself agreed that the judgment 
of the lower court is not elucidative but since the conclusion drawn 
is correct, no interference is called for.  It is pointed out that such 
an approach is erroneous.  Learned counsel for the appellant has 
placed reliance upon a judgment of the Supreme Court reported in 
2001 3 (SCC) 179  Santosh Hazari Vs. Puushottam Tiwari  to 
support his submission that where the first Appellate Court has in 
a cryptic matter reversed the finding of the Trial Judge, the matter 
is liable to be remanded back.  It is pointed out that in this case, 
the Supreme Court had reiterated that a first appeal is a valuable
right of the parties and the judgment of the first Appellate Court 
must reflect its conscious application of mind on all issues arising
thereupon along with the contentions put forth and pressed by the 
parties; this is  absent  in the instant case.  In this view of the 
matter, the impugned judgment is clearly a perversity and is liable 
to be interfered with. The compromise dated 10.1.1982 Ex.PW 2/2 
duly effected before the police and signed by all the parties  has 
also been cursorily ignored.  Attention has also been drawn to the 
statement of the defendant recorded under Order X of the Code on 
22.3.1985. It is pointed out that  the admissions made by the 
respondent in this  statement have  been ignored in the impugned 
judgment; if this  admission of the defendant  is read, relief would 
automatically flow to the plaintiff as the defendant has admitted 
that the disputed passage shown was the common access way for 
all the houses including the houses of the plaintiffs.  It is pointed 
out that the plaintiffs have been using this passage since long
which is the only route to access their houses; this is evident from 
the site plan; plaintiffs/appellants have acquired easementary right
of necessity/right of way. Attention has been drawn to Section 4 of 
the Indian Easement Act, 1882 (hereinafter referred to as the „said 
Act‟), as also to the provisions of Section 14 of the said Act to 
support this submission.  Reliance has been placed upon JT (2004) 
(10) SC 228  Justiniano Antao and Ors. Vs. Smt. Bernadette B. RSA  
Pereira. This was a suit where the plaintiff  claimed easementary 
rights by way of prescription.  Learned counsel for the appellant 
has conceded that he is not pressing his claim for easement by way 
of prescription and the finding of the Trial Judge as also the first 
Appellate Court that the appellant has failed to show that he was 
using this common passage since the last 20 years has not been 
made out and the appellant does not seek to challenge this finding.  
It is however submitted that in view of the ratio of the aforenoted
judgment, if the plaintiff is able to demonstrate and show before 
this court that he has no other mode of access to his house except 
through that of the property of the defendants, easement of 
necessity necessarily arises.  Reliance has also been placed upon 
AIR 1987 Calcutta 97  Smt.Pravabati Roy and Anr. Vs. Dwijendra 
Lal Sengupta and Anr. It is pointed out that the law on easement of 
necessity has been detailed in this judgment which necessarily 
encompasses that for the effective user of the property in its 
ordinary way, the right of easement of necessity is recognized.  The 
ratio of the aforestated judgment which applies to the facts of the 
instant case entitles the plaintiff to the relief of injunction as 
claimed by him as the plaintiff has admittedly no other way to 
approach his property.    Reliance has also been placed upon AIR 
2005 Delhi 319 Shri Rajiv Srivastava Vs. Sanjiv Tuli and Anr.  It is 
pointed out that an admission made by a party under Order X of 
the Code is sufficient for a decree to follow under Order 12 Rule 6 
of the Code as the said provision speaks of admissions made not 
only in the pleadings of the parties but even “otherwise”;  the word 
“otherwise” has been interpreted to include the admissions made 
under Order X of the Code
9. Arguments have been countered by the learned counsel for 
the respondents.    It is pointed out that  the statement of the 
respondent  under Order X of the Code does not qualify as an 
admission. It is submitted that the alleged compromise Ex. PW 2/2 
was never voluntary and this has been the stand of the defendants‟
right from the inception.  The defendants had been taken to the 
police station and without their knowledge were made to sign on 
blank papers.  Such a compromise not being voluntary was rightly 
held by both the courts below  to be not binding upon the parties.  
It is submitted that the judgments of the two courts below which 
are concurrent findings of fact  have correctly held that the houses 
of the plaintiffs i.e. House nos. 820-A, 820-B and 820-C  are 
extensions of the original house which was the house of their 
father i.e. house no.820.  They are illegal and unauthorized.  By 
way of this suit, the plaintiffs are intending to get their illegal 
structures legalized; even otherwise these properties have 
admittedly  sprung into construction only about three years ago.  
No easementary right has accrued in favaour of the plaintiffs either 
by way of prescription or by necessity as they have access to these 
houses through the house of their father house no. i.e. 820. 
10. This is a second appellate court.  The substantial questions of 
law have been reproduced herein above.
11.  Under Order 41 Rule 31 of the Code, the judgment of the 
Appellate Court must state the following:-
(a) the points for determination;
(b) the decisions thereon;
(c) the reasons for the decision; and 
(d) where the decree appealed from is 
reversed or varied, the relief to which the 
appellant is entitled;
and shall at the time that it is pronounced by 
signed and dated by the Judge or by the Judges 
concurring therein.
12.  The impugned judgment  runs into eight pages and the 
discussion and the findings emanate as follows:-
“7. I have heard Ld. Counsel for both the parties and 
perused the material available on record.
8. Ld. Counsel for the appellant has submitted that 
Ld. Lower Court has erred in holding that the land in 
dispute is a Private Street of the defendants/respondents.  
Plaintiff/Appellant has averred that the land of the street 
is of Village Naraina as the Village is an Urban Village.  
The land belongs to Delhi Municipal Corporation and 
under Delhi Development Act of Street vest in the public 
and the plaintiff/appellant are the residents of the 
villages for a right to pass through that street.  He has 
further submitted that Ld. Lower Court has erred that 
defendants/respondents entered into compromise Ex. 
PW2/2 voluntarily out of their free-well and have 
admitted the claim of the appellants which operates as an 
admission and also an agreement between the parties. 
But Ld. Lower Court has totally ignored this fact that 
respondents dishonestly resiled from the agreement.  Ld. 
counsel for the appellant has further submitted that 
Lower court has totally ignored that the appellants are 
living  on “Pahar” and they have a right to abut to their 
houses and they have a right by way of easement and 
necessity.  On these grounds Ld. counsel for the 
appellant has submitted that the judgment of the Lower 
Court deserves to be set aside.
On the other hand, Ld. counsel for the respondent 
has submitted that the Ld. Lower Court has given well 
reasoned judgment considering all the facts & 
circumstances of the case and the evidence on record 
which needs no interference.
The appellants have claimed the right to the 
disputed street by way of three separate means.
Firstly, they are saying that the land under-neath 
the street belongs to MCD.  Therefore, respondent has no 
right to interfere in the use of the street by the appellant.  
There is no record on the file by way of which it can be 
said that this is a public street.  Hence the contention of 
the Ld. counsel for the appellant that the disputed street 
is a public street cannot be accepted.
Secondly, the counsel for the appellant has argued 
that the plaintiff/appellants have right by way of 
easement and right of prescription in the said street for 
ingress and outrages and also have discharging the rain 
and waste water and other material of their houses.  For 
claiming the right of the easement and right of 
prescription it must be shown that the said street is in 
use by the appellants openly, peacefully, continuously 
and without objection from anybody in a hostile manner 
for a period of more than 20 years.  It has come on the 
record that the appellants have constructed their houses 
4/5 years ago. The appellants have placed on record the 
house tax receipts for the year 1979-80 onwards.  The 
suit was filed in 1981 which means the houses were 
constructed recently. No evidence that the street in 
question is being used for more than 20 years have 
brought on record.  Rather in the cross examination of 
PW1 he has admitted that house no. 820-A, 820-B, 820-C 
were not in use prior to 2/3 years.  Rather they were in 
dilapidated condition.  Taking this fact into consideration 
the contention raised by the Ld. counsel for the appellant 
that they have been approaching the houses 820-A, 820-B 
& 820-C through the street in dispute which was used for 
more than 20 years, cannot be accepted.
Thirdly, the use of the street cannot be said to be 
peaceful uninterrupted and without any restrictions.  
Had it been so there was no necessity to resolve the 
dispute between the parties by a compromise on 
10.1.1982. It has been admitted by the appellants that 
during the pendency of the suit the defendant/respondent 
became violent and aggressive.  However, no evidence 
has been brought on record that for a long 20 years the 
enjoyment of the street was open, peaceful, continuous 
and without objection of anybody.  Therefore, there is no 
force in the contention of Ld. counsel for the appellant 
that the appellants have acquired the right of easement 
and right of prescription in the said street for egress or 
ingress for their houses.
Lastly, coming to the compromise dated 10.1.1982 
it would not be out of place to mention that the said 
agreement took place during the pendency of the suit 
which was filed on 30.04.1981 by the appellants.  Hence 
any agreement or compromise to be made between the 
parties should have been made before the court or the 
same settled  outside the court and the same could be 
informed to the court but it has not happened in the 
present case. The alleged compromise took place in the 
police station. It has also been stated by DW1 that police 
took him to the police post alongwith his sons and threats 
were given to him and he was also slapped which means 
the said agreement, if at all, was not made with free will.  
Therefore, I do not find any substance in the contention 
of the Ld. counsel for the appellant.  However, I agree 
with the contention of Ld. counsel for the appellant that 
the judgment passed by the Ld. Lower Court is not very 
well elucidative judgment.  But since conclusion drawn 
by the Ld. Lower Court is correct.  There is no need to 
interfere in the judgment.
It is pertinent to mention here that earlier an 
appeal was filed by the appellants against the judgment 
and decree passed by the Lower Court which was 
allowed and the case was remanded back to the Lower 
Court for giving specific findings in respect of additional 
issue no. 8-A.  Ld. Lower Court vide order dated 
24.1.1990 again decided the issue no.8-A in favour of 
defendant and against the plaintiff.  I have gone through 
the order dated 24.1.1990. Ld. Lower Court has
discussed the entire evidence concerning this issue and 
has rightly reached the conclusion that the compromise 
deed Ex. PW 2/2 is not a voluntary compromise deed and 
it has no binding effect from the defts.  As discussed 
above, during the pendency of the suit DW 1 was taken to 
PP Naraina by the police.  He was made to sit there and 
was asked to put his thumb impression on the paper and 
was also slapped shows that the compromise deed, if any, 
was not free from coercion and undue influence.  Hence, 
the same has no bindings upon the defendants.  
Therefore, issue no. 8-A was decided by the Lower Court 
vide its order dated 24-01-1990 is also correct and needs 
no interference.
There is no merit in the appeal.  All the issues have 
been correctly decided by the Ld. Lower court and the 
judgment and decree of the lower court needs no 
interference.  The same is dismissed.”
13.  Perusal of the judgment shows that in the  preceding
paragraphs i.e. between paras 1 to 5, the case of the parties has 
been set out i.e. their respective pleadings; the issues have been 
detailed; the witnesses examined on behalf of the plaintiff and the 
defendant have also been detailed.  The findings are contained in 
para 7 onwards.  The contention of the parties i.e. of both the 
appellant and  the  respondents has been dealt with in detail.  The 
judgment, in fact, has set out the contentions in a point-wise form.  
The alleged compromise entered into between the parties has been 
taken note of.  The impugned judgment has not shied from its duty; 
it has infact in detail examined the evidence and the contentions 
urged by the parties.  
14.  The contention of the learned counsel for the appellant that 
the judgment of the trial judge dated 01.9.1987 is not a `judgment‟
within the meaning of the Section 2(9) of the Code is not a correct 
proposition.  As defined under  the aforenoted statutory provision, 
the court must state the concise statement of the case, points of 
determination, the decision and the reasons for this decision.  This 
mandate has been adhered to by both the fact finding courts.  After 
reproducing the pleadings, framing of the issues, issue-wise 
findings has been given by the Judge.  The  testimony of each 
witness has been noted and taken care of. The judgments of  
Rameshwar Dayal (supra)  and Santosh Hazari (supra) relied upon 
by the learned counsel for the appellant as also those mentioned in 
the first substantial question of law have no application.   The
judgment is neither shoddy nor unreasoned; for this reason alone, 
the judgment is not liable to be set aside.  
15. As noted by the Supreme Court in the case of Santosh Hazari
(supra), the High Court  sitting in  a  second appeal can interfere 
only if a substantial question of law is raised; its hands are tied; if 
no question of law arises, it cannot interfere; only on a substantial 
question of law, interference is called for.
16. Ex.PW 6/1 is the site plan of the said property.  The houses of 
the plaintiffs i.e. house nos. 820-A, 820-B and 820-C are depicted in 
yellow, blue and green colour.  House no.820 is in front of and 
adjacent to house no.820 which is the house of their father.  It is 
not disputed that house number 820-A, 820-B and 820-C have been 
built after the construction of house no.820; they have in fact come 
into existence only 3-4 years prior to the filing of the suit as is 
evident from the evidence adduced from the courts below; they are 
extensions of house no. 820.  The site plan shows that access to the 
houses of the plaintiff i.e. 820-A, 820-B and 820-C which are in 
continuity and in contiguity with one and another is through house 
no.820.  This is also the version of the defendant in his statement 
recorded under Order X of the CPC on 22.3.2002.  The  disputed 
passage has been depicted in red colour in the site plan. This falls 
in the portion in between the houses of  Ram Singh and Bishamber
on the one side and Kehar Singh and Shiv Charan on the other.  
After the street ends there are dotted lines in Ex.PW6/1 depicting 
an end/closure.  This is also the categorical statement  of the 
defendant recorded  on 22.3.2002 (under Order X of the Code)
wherein he has stated that  at  both ends of the disputed passage 
there are doors of the defendant.  Contention of the defendant that 
this disputed portion is a part of their compound/property is borne 
out.  After  the disputed portion ends,  there is Pahar/rocky area in 
front of which again there is an open passage.  Houses of the 
plaintiffs are accessible through the house of their father.  This is 
the categorical fact finding of both the courts below and does not 
in any manner call for interference.  Plaintiffs cannot set up a new 
claim and stake their right to the disputed passage/street which is
the  dividing street between the houses of  Ram Singh and 
Bishamber on the one side and Kehar Singh and Shiv Charan.  It 
cannot be said that the plaintiffs have no other means to access 
their houses.  
17. Courts below have held that disputed property is not a public 
street.  This is a private land belonging to the defendants.  
Plaintiffs have not acquired any easementary right of 
necessity/right of way. Section 4 of the said Act defines an
easement as a right which the owner or occupier of certain land 
possesses, as such, for the beneficial enjoyment of that land, to do 
an 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. Counsel for the appellant has  not pressed any 
claim on easement by prescription.  His argument is based on 
easementary right of necessity/right of way.  
18. In the instant case, the plaintiff has prayed for his right to lay 
down water and electricity pipes in this disputed property.  It is not 
his case that he was earlier enjoying this right; it is not as if what 
he had been enjoying  earlier is now sought to be interrupted or 
taken away.  Sections 13 and 14 of the said Act deal with easement 
of necessity/ quasi easements and direction of way of necessity. 
Section 13 and 14 read as follows:
“13. Easements of necessity and quasi-easementsWhere 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;
(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 RSA  No. 12/2002                                                      Page 14 of 16
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.
14. Direction of way of necessity.- When [a right] 
to a way of necessity is created under section 13, the 
transferor, the legal representative of the testator, or the 
owner of the share over which the right is exercised, as 
the case may be, is entitled to set out the way; but it 
must be reasonably convenient for the dominant owner.”
19.  Clauses a, c and e of Section 13 are called easements of 
necessity. Before the application of this section, what is a prerequisite is a transfer or bequest of an immovable property to 
another.  In other words, easement of necessity is one which the 
law creates; according to the doctrine of implied grant in a 
particular case and is one without which the dominant tenement 
cannot be used at all.  The right of easement of necessity is implied 
only in cases of severance of tenements; unity of ownership of the 
dominant and servient tenement at one time or other is essential. 
This very first condition which is required to be fulfilled is  that 
immoveable property has either to be transferred or bequeathed.  
An easement of necessity is in fact an easement without which the 
property cannot be used at all and not merely one for the 
reasonable enjoyment of the property.  In considering the question 
of easement of necessity absolute necessity and not mere 
convenience is the test.  It is one which is needed absolutely for the 
enjoyment of property. 
20.  Both the courts below have  recorded  a cogent and clear 
finding that this is the private land of the defendants over which 
the plaintiffs have  failed to show that it was in their use.  No 
easementary right as such has accrued in their favour. Such a right 
necessarily encompasses that on the severance of a tenement, the 
easements that arise are easements of necessity or continuous and 
apparent easements, which are necessary  for the reasonable 
enjoyment of the property granted. Applying this test to the facts 
of the instant case, it is clear that it can in no manner be said that 
the plaintiffs right to enjoy this property cannot be enjoined or has 
been lost by not granting to him the relief claimed by him.
21. The defendant has all along taken the plea that the 
properties of the plaintiffs are illegal structures.  This is his 
contention raised in the written statement.  What the plaintiffs now 
seek is the legalization of this illegal structure by getting the stamp 
of approval from the  Court permitting him the laying of electric 
and water pipes through this private portion of the defendants.   
The statement of the defendant recorded under Order X of the 
Code clearly states that the plaintiffs have access to their houses 
through the house of their father; it is not as if they have no other 
means to approach their houses.  Even otherwise in view of the 
definition of `easement‟ as contained in Section 4 of the said Act,  
easementary right would not include permission to lay down 
electric fittings or water pipes in the portion of the another. This is 
not the ambit and scope of the definition of `easement‟ as 
contained under Section 4 of the said Act.  The judgment of 
Justiniano Antao and Ors. (supra) related to the motorable access 
to the house; it is distinct on its facts.  In that case easement by 
way of prescription not having been established the claim of the 
plaintiff has been dismissed.  Easementary right by way of RSA  
prescription has not been argued before this court.  The argument 
of the appellant has been confined to easementary right by 
necessity/right of way.  The judgment of the bench of the Calcutta 
High Court  Pravabati Roy (supra) is also inapplicable.   It related
to  a right of passage where the two courts below had given 
concurrent findings that this passage has been used by the plaintiff 
and in fact she had no other mode of access to her bathroom 
except through the said passage.  
22.  As already aforenoted there has been no admission by the 
defendant in his statement under Order X of the Code of which 
gainful advantage can be taken by the appellants. The judgment of 
Shri Rajiv Srivastava (supra) is inapplicable.   Further the 
compromise deed Ex.PW2/2 had been held by the both the fact 
finding courts below to be a compromise under coercion which was 
not binding on the parties.   These fact findings cannot be readdressed or re-visited by the second appellate court.  
23. All the aforenoted substantial questions of law have been 
answered. There is no merit in the appeal.  The appeal as also the 
pending application is dismissed.
                     (INDERMEET KAUR)
                                                                   JUDGE     
NOVEMBER, 10, 2010