At this stage it would be apposite to refer to the observations made by the Apex Court in the case of Hero Vinoth (supra). The Supreme Court has observed thus:
"25. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity u/s. 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute, in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Sec. 13 nor is it extinguished by the statutory provision u/s. 41 of the Act which is applicable only to easement of necessity arising u/s. 13.
26. An easement by grant does not get extinguished u/s. 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Sec. 41 is not applicable in such case."
17. In the instant case the plaintiffs vide compromise had granted the easement to the appellant-defendants to use 5 feet of the land for construction. Despite the same, the appellants made excess constructions. Thus, as per the law enunciated by the Apex Court, the easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition, the parties will be governed by those conditions.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/Second Appeal No. 153 of 1995
Decided On: 15.03.2019
Nandlal Ranchhodbhai Patel Vs. Magan Bharatbhai Patel
Hon'ble Judges/Coram:
A.S. Supehia, J.
Citation: AIR 2019 Guj 141
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