JUDGMENT : J. P. Desai, J. The plaintiff-appellant filed Regular Civil Suit No. 177 of 1970 in the Court of the Civil Judge, Junior Division at Vijapur for declaration of his right of way through the fields of the defendants as also for a permanent injunction to restrain the defendants from causing any obstruction to him in the enjoyment of the said right. The plaintiff is admittedly the owner of S. Nos. 1277 and 1278 situate in the Sim of village Gozariya, while defendants Nos. 1 and 2 are the owners of the field bearing S. No. 1268/1, defendant No. 3 is the owner of the field bearing S. No. 1268/2 and defendant No. 4 is the owner of the field bearing S. No. 1269 which arc all situated in the said Sim. The situation of the fields of the plaintiffs as well as the defendants are very well depicted in the sketch, Exhibit 66 produced before the trial Court. It shows that S. No. 1277 is to the south of S. No. 1278 both of which are of the ownership of the plaintiffs S. No. 1269 is to the south (sic) 1277, while S. No. 1268 (sic) of S. No. 1269. It is (sic) the plaintiffs that he has to pass through S. Nos. 1270, 1268 and 1269 for going to his field bearing S. No. 1277 from which he can also go to S. No.1278. The plaintiff came out with a case that he was enjoying the suit way as of right for a period of more than 20 years and hence he was entitled to the said right of way by prescriptive user. He also came out with a say that he had no other way for going to his field and, therefore, he was also entitled to claim the right of way through the fields of the defendants as an easement of necessity. 2. The defendants resisted the suit and denied the claim of the plaintiff. They denied that the plaintiff was passing through their fields or that he had a right of way as an easement of necessity through their fields. 3. The learned trial Judge framed issues at Exhibit 37. He recorded a finding against the plaintiff so far as the claim of the plaintiff as an easement by prescriptive user is concerned. They denied that the plaintiff was passing through their fields or that he had a right of way as an easement of necessity through their fields. 3. The learned trial Judge framed issues at Exhibit 37. He recorded a finding against the plaintiff so far as the claim of the plaintiff as an easement by prescriptive user is concerned. He also negatived the claim of the plaintiff so far as the claim based on easement of necessity is concerned. He also held that the suit was not barred by limitation nor by non-joinder of parties nor on account of any defect in the form. The learned trial Judge, in view of his findings recorded as above, dismissed the suit of the plaintiff with costs. Being dissatisfied with the judgment and decree passed by the trial Court, the plaintiff filed Regular Civil Appeal No. 147 of 1975 in the District Court at Mehsana. The learned Extra Assistant Judge who heard the appeal, after taking into consideration the application, Exhibit 49, submitted by the plaintiff to the Mamlatdar some (sic) the month of July, 1970, reach- (sic) inclusion that the said application (sic) to the case of the plaintiff. He concurred with the finding recorded by the learned trial Judge that the oral evidence led by the plaintiff was not reliable or convincing to establish the alleged right of way claimed by the plaintiff. He accordingly dismissed the appeal with costs. He also directed that the pleaders’ fees for the purpose of the costs in the appeal should be taxed at Rs. 100/- looking to the facts of the case. Being dissatisfied with the judgment and decree passed by the appellate court, the original plaintiff has come in Second Appeal before this Court. 4. Now, so far as the judgment of the learned Assistant Judge who decided this appeal is concerned, it is not of any assistance to me in deciding this Second Appeal. So far as the claim of the plaintiff based on easement of necessity is concerned, the learned Assistant Judge has not given any reasons as to why he was inclined to negative this claim of the plaintiff. So far as the reasons given by the learned Assistant Judge for concurring with the conclusion of the learned trial Judge on the other aspect, viz. So far as the reasons given by the learned Assistant Judge for concurring with the conclusion of the learned trial Judge on the other aspect, viz. right of easement based on prescriptive user, is concerned, he has simply referred to the application, Exhibit 49 given by the plaintiff to the Mamlatdar and also the map, Exhibit 66, and observed that the map, Exhibit 66, does not show any right of way upto the field of the plaintiff and the fact that no local inspection was made in the present case to make a note of the existing situation was a circumstance adverse to the plaintiff and taking these circumstances into consideration, he observed that the learned trial Judge was right in not relying upon the oral evidence led by the plaintiff. The learned Assistant Judge as a Court of first appeal should have discussed the evidence of the plaintiff and his witnesses, though the discussion may not be a lengthy one. He should have discussed the evidence in brief and given his reasons why he was concurring with the conclusion of the learned trial Judge on this aspect. So far as the claim based on casement of necessity is concerned, the learned trial Judge has discussed the same at para 10 of his judgment but he has not properly understood the scope of Section 13 of the Easements Act which deals with the easement of necessity. The learned trial Judge has come to the conclusion that because the plaintiff applied to the Mamlatdar vide Exhibit 49 seeking some relief from him, it indicated that the plaintiff was in a position to find out some other way and therefore, there was no absolute necessity to get the way through the fields of the defendants. This approach of the learned trial Judge, on the face of it, is erroneous. In view of this, I would myself like to approach the claim based on easement of necessity from its proper perspective in the light of the provisions of Section 13 of the Easements Act. 5. So far as the question whether the plaintiff has been able to make out a case that he has acquired easement right of way by user for prescriptive period of twenty years is concerned, a finding is recorded in negative by both the Courts below. 5. So far as the question whether the plaintiff has been able to make out a case that he has acquired easement right of way by user for prescriptive period of twenty years is concerned, a finding is recorded in negative by both the Courts below. This is a finding of fact and hence tins Court in second appeal cannot go into that question. No question of law is also naturally formulated by this Court and hence that question does not arise for my consideration. It appears that the learned Assistant Judge has not discussed the oral evidence led by the plaintiff but the trial Court has discussed the same and rightly for the reasons recorded by him at paras 7 and 8 of his judgment refused to place reliance on the oral evidence and rightly negatived this claim of the plaintiff. 6. Now, we come to the substantial question of law which is formulated as involved in this Second Appeal. The said question is as follows : “Whether on the facts and in the circumstances of the case the lower appellate Court was right in law in holding that the appellant-plaintiff failed to prove that he had acquired the right to pass and repass through the disputed land by easement of necessity?” 7. So far as easements of necessity are concerned, we have to refer to Section 13 of the Easements Act. So far as easements of necessity are concerned, we have to refer to Section 13 of the Easements Act. The relevant clauses of Section 13 which deal with easements of necessity are as follows : “Where one person transfers or bequeaths immovable property to another - (a) if an easement in other immovable property of the transfer or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or xxx xxx xxx (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; xxx xxx xxx 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” A mere look at the above (sic) of Section 13 will (sic) tain easement rights, one of them being a right of way, come into existence on the severance of one tenement into two separate and distinct tenements. Easements of necessity are created by the mere fact of severance and do not require any other act on the part of the dominant owner or the servient owner previous to their creation. They are the result of the -severance itself. In the present case, there is no allegation, much less any evidence to show that the property of the plaintiff on one hand and those of the defendants on the other were of the ownership of the same person or persons at some time and that there was severance or partition of the property at sometime. In absence of this important ingredient of Section 13, it is difficult to understand how any right of way can be claimed as an easement of necessity in the present case. The learned Advocate Mr. M. I. Patel appearing on behalf of the appellant was unable to point out to me as to how in absence of this material clement of Section 13 the plaintiff can claim right of way through the fields of the defendants as an easement of necessity. The learned Advocate Mr. M. I. Patel appearing on behalf of the appellant was unable to point out to me as to how in absence of this material clement of Section 13 the plaintiff can claim right of way through the fields of the defendants as an easement of necessity. The learned trial Judge, of course, reached the conclusion that the plaintiff was not entitled to right of way as an easement of necessity but on a misconception of the provision of law. He referred to and reproduced commentary from the Law of Easements and Licences in India by B. B. Katiar, 4th Edition. The very opening words of the commentary of Law of Easements and Licences in India which have been reproduced by the learned trial Judge at para 11 of his judgment show that an easement of necessity is created only on severance (sic) partition. But in spite of this, the (sic) Judge, with respect to him, (sic) himself to the question (sic) was any severance or (sic) in the present case, which alone can give rise to an easement of necessity. Pie completely misdirected himself by considering the question whether there was absolute necessity of enjoying the right of way through the fields of others. The learned trial Judge, after reproducing the commentary from the book of Shri B. B. Katiar, observed as follows : “If we apply all these principles to the present case before us, we find that the plaintiff has failed to prove his case of easement of necessity. The document, Exhibit 49, which is application of plaintiff given to Mamlatdar itself is able to show that there is possibility of finding out another way for going to his fields. In Exhibit 49 written in his own hands the plaintiff has given sketch of the fields. This sketch shows that there is a field of Kachrabhai Kalidas bearing Survey No. 1279 on the north of field S. No. 1278 of plaintiff and one Nelia from the grazing land comes upto the field S. No. 1279 and that is the way for going to S. No. 1279. In Exhibit 49 the plaintiff has also stated that beside the defendants, the owner of field S. No. 1279, i.e. Kachra Kalidas refuses to allow him to pass through his field. In Exhibit 49 the plaintiff has also stated that beside the defendants, the owner of field S. No. 1279, i.e. Kachra Kalidas refuses to allow him to pass through his field. This means that there is possibility of entry in the field of plaintiff through the field S. No. 1279. So it cannot be said that there is no other way except the suit way for going to plaintiff’s fields.” 8. The above observations made by the learned trial Judge show that he did not have a clear idea of the scope of Section 13 of the Easements Act. It is not that an easement of right of way can be claimed as an easement of necessity only if the property of the dominant owner is inaccessible except by the way claimed as an easement of necessity. The claim based on easement of necessity can be negatived only if the dominant owner is entitled to enjoy the other possible way as of right but not otherwise. If the plaintiff has no right of way through any other fields through which he can have access to his field, then he will be committing trespass if he passes through those fields. Such a possible way cannot come in the way of the plaintiff claiming the right of way as an easement of necessity provided, of course, the main ingredient about severance on account of transfer, bequest etc. was alleged and proved. It is clear from the sketch produced in this case that the plaintiff has no other right of way and hence he would be entitled to claim a right of way as an easement of necessity through the fields of the defendants provided it was his case that his fields and the fields of the defendants belonged to the same owner or owners in past and the easement of necessity was created on severance or partition as required by Section 13 of the Act. Hence, I agree with the conclusion reached by the learned trial Judge that the plaintiff is not entitled to claim the right of way as an easement of necessity but for the reasons stated by me above and not for the reasons stated by the learned trial judge. So far as the learned Assistant Judge is concerned, he has not discussed this aspect of the case at all. So far as the learned Assistant Judge is concerned, he has not discussed this aspect of the case at all. He has simply referred to the application, Exhibit 49 and observed that the contents of Exhibit 49 negative the contention of the plaintiff that he has acquired the aforesaid right by prescription or by easement of necessity. It seems that the learned Assistant Judge, with due respect to him, does not appear to have even looked into the relevant provisions of Section 13 of the Easements Act while reaching this conclusion. He has lost sight of the fact that easement of necessity is created on severance or partition and it is not acquired as such. Severance itself gives rise to an easement of necessity provided all conditions mentioned in the respective clause or clauses of Section 13 are satisfied. 9. The result of the aforesaid discussion is that the plaintiff is not entitled to claim the right of way as an easement of necessity and hence this substantial question of law has to be answered accordingly. 10. The learned advocate Mr. M. I. Patel submitted that the plaintiff can claim the right of way on the presumption of lost grant. In this connection, I would like to refer to a decision of the Bombay High Court reported in Chintamanrao Appasaheb v. Ramchandra Govind, AIR 1932 Bombay 130, wherein it is held that Section 15 of the Easements Act is not exhaustive and prohibitory of other modes of acquiring easements and that the Court may presume existence of lost grant. But as observed in this judgment of the Bombay High Court, there should be evidence of enjoyment on the part of the plaintiff, or those through whom he claims, of such a character and duration as to justify the presumption of a grant or other legal origin of the plaintiff’s right independent of the provisions of Section 26, Limitation Act, 1908, or of the Easements Act, 1882, Section 15. In the present case, there is no reliable evidence whatsoever of the enjoyment on the part of the plaintiff or his ancestors of the right of way through the fields of the defendants. In view of this, it is difficult to accept the contention of Mr. Patel that this may be a case of lost grant. In the present case, there is no reliable evidence whatsoever of the enjoyment on the part of the plaintiff or his ancestors of the right of way through the fields of the defendants. In view of this, it is difficult to accept the contention of Mr. Patel that this may be a case of lost grant. I may also mention here that it is not even the case of the plaintiff that he is enjoying the right of way since time immemorial. In view of this, this contention of Mr. Patel has to be rejected. 11. Before parting with (sic) I would like to mention (sic) whenever a question of easement (sic) necessity arises, one has always to look at Section 13 of the Easements Act and address himself to the question as to what are the ingredients of Section 13 and whether the ingredients mentioned in Section 13 are pleaded and whether evidence is led in proof of the said ingredients. The learned trial Judge, as observed by me earlier, did not address himself to this important aspect of Section 13 and misdirected himself by addressing himself to the question of necessity rather than to the question of the important ingredient of Section 13, viz. severance or partition. The learned Assistant Judge, as I stated earlier, does not appear to have even looked at Section 13 of the Easements Act. It is true that the learned trial Judge as well as the learned Assistant Judge negatived the claim of the plaintiff based on easement of necessity. But as discussed above, the learned trial Judge reached this conclusion on a wrong premises and the learned Assistant Judge without applying his mind to this question. The opening words of the Commentary referred to and reproduced by the learned trial Judge at para 11 of his judgment show that these rights arc created only on severance by transfer, bequest, etc. If the learned trial Judge had carefully read Section 13 and the Commentaries, he would have probably reached the right conclusion but not on wrong premises. 12. The result of the aforesaid discussion is that there is no merit in this appeal and hence it deserves to be dismissed. 13. The learned Assistant Judge has directed that the advocates’ fees for the purpose of the appeal should be fixed at Rs. 100/-. The advocates’ fees are taxed at Rs. 12. The result of the aforesaid discussion is that there is no merit in this appeal and hence it deserves to be dismissed. 13. The learned Assistant Judge has directed that the advocates’ fees for the purpose of the appeal should be fixed at Rs. 100/-. The advocates’ fees are taxed at Rs. 20/- by the trial Court. It is not understood why the learned Assistant Judge directed that the pleaders’ fees for the purpose of the cost in appeal should be fixed at Rs. 100/- instead of the normal fees according to the. Schedule. The learned Assistant Judge has not given any reasons in his order as to why he was giving such direction. Hence this part of the order, viz. directing to fix the pleaders’ fees at Rs. 100/- for the purpose of the appeal should be set aside. With this modification, the Second Appeal is dismissed with costs. Order accordingly.