Whether plaintiff can be granted right to easement by necessity even though has alternative way?

The application will not improve the case of the appellant

even if those are considered simply on the ground that once it has been
established that the appellant has alternative passage as approach to her
house, then there is no question of easement of necessity. 
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 4217 of 2013
Date of Decision : 20.11.2013
Tripta Sharma
Versus

State of H.P. and others.

Coram
The Hon’ble Mr. Justice Kuldip Singh, Judge.
Citation;AIR 2014 HP20

This appeal is directed against judgment, decree dated
26.6.2013 passed by learned District Judge, Mandi, in Civil Appeal No. 28
of 2012 affirming judgment, decree dated 26.3.2012 passed by learned
Civil Judge, (Senior Division), Court No.1, Sundernagar, District Mandi, in
Civil Suit No. 207 of 2005.
2.
The suit has been filed by the appellant on the grounds of
easement by way of prescription and easement of necessity. In the plaint,
it has been pleaded that the appellant had purchased the land in the year
1981 vide sale deed dated 5.3.1981 and after the purchase of the land,
the appellant had constructed a house after demolishing the old house

and path in question is being used by the appellant since 1981
peacefully, continuously and without any obstruction. The suit was filed
on 14.12.2005. The Explanation IV to Section 15 of the Indian Easements
Act, 1882 (for short ‘Act’) provides when the property over which a right
is claimed belongs to the Government, the section shall be read as if, for
the words “twenty years” “thirty years”. In other words for claiming

easement by way of prescription over Government land, thirty years
period is required. The appellant in the plaint has pleaded that after
purchasing the land in the year 1981, she constructed the house and
since then she is using the land over which she has claimed easement by
way of prescription which is admittedly owned by the Government. In
view of Explanation IV to Section 15 of the Act, the appellant is not
entitled to claim easement by way of prescription over the government
land.
3.
The appellant has also claimed easement of necessity over
the land in question. It has been submitted that the appellant has no
alternative passage for approaching her house. PW-2 Lekh Ram in his
cross-examination has admitted that path through khasra No. 420
touches the land and house of the plaintiff. This statement of the witness
of the appellant demolishes the case of the appellant so far easement of
necessity is concerned. The two Courts below have recorded a finding of
fact after appreciation of evidence on easement of necessity as well as
easement by way of prescription and negatived the case of the appellant.
4.
The learned counsel for the appellant has submitted that the
appellant has filed an application for additional evidence alongwith
several documents to prove easement of necessity of the appellant over
the suit land. The application will not improve the case of the appellant

even if those are considered simply on the ground that once it has been
established that the appellant has alternative passage as approach to her
house, then there is no question of easement of necessity. The two
Courts below have rightly appreciated the evidence. There is no
perversity in the impugned judgment. The view taken by two Courts
below is in terms with evidence. No substantial question of law is involved

in the appeal. Accordingly, appeal dismissed so also the pending
applications.
November 20, 2013
(Kuldip Singh),
Judge.
(GR)

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