RAJVEER
Easement By Necessity Not Available When There Is Alternative Way To Access Property
RAJVEER SINGH 13 Aug 2024

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.
The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd. 3, this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State of Maharashtra4 concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.

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
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