JUDGMENT D.S. Bajpai, J. - This is a plaintiffs' appeal against the judgment and decree dated 5th September, 1980 passed by the 1st Additional District Judge, Hardoi in Civil Appeal No. 218 of 1979 confirming the judgment and decree dated 14th September, 1979 passed by Munsif East, Hardoi in Civil Suit No. 213 of 1977. The plaintiffs filed a suit for permanent injunction in the trial court for restraining the defendantsrespondents from having ingress and egress from the 'Baroth' which was the subject matter of the suit and in the alternative prayed for possession of the said Barotha on the allegation that they were owner of the disputed Barotha. It was alleged that since the defendants had opened a new door 'X' in the western wall of their house they wanted to close the door of the plaintiffs opening towards the gallery in question. The defendants contested the suit on the ground that the door 'X' was existing since quite a long time and that the defendants had right to enjoy the easementary rights which they peacefully enjoyed for the last more than 50 years through their predecessors in interest. The Munsif dismissed the suit and the first appeal filed before the 1st Additional District Judge, Hardoi was also dismissed. Aggrieved by the judgment and decree of the courts below the plaintiffs have preferred the instant second appeal before this Court. I have heard Sri Mohd. Arif Khan, learned counsel for the appellants and Sri R. N. Gupta, learned counsel for the respondents and have perused the documents referred to before me which form part of the lower court record. It has been urged by the learned counsel for the appellants that the disputed Barotha had since fallen in the share of the plaintiffs appellants at the time of partition, the defendants could not acquire any right of easement to use the same for ingress or egress and in the alternative it was urged by him that easement, if any, could not, by any stretch of imagination, be easement of necessity. As a matter of fact the learned counsel urged that at the most, if it was established that the defendants were using this passage, it can be nothing but only a licence which would not vest any right in them. As a matter of fact the learned counsel urged that at the most, if it was established that the defendants were using this passage, it can be nothing but only a licence which would not vest any right in them. The Commissioner's report dated 16101982 on the record of the trial court indicate that the passage in dispute was a Barotha and that in view of the fact that the defendants had another door 'S' opening on the main road on the eastern side, the door 'X' leading to the other end of the Barotha and opening with the door 'X' on the main road on the western side could not in any case be said to confer any easement of necessity on the defendants. It is not disputed that the door 'S' exists and that from the passage on which the said door opens the defendants have unrestricted entry which also leads to the road in which the door 'YJ opens. I have no hesitation in holding that this aspect of the matter was lost sight of by the two courts below. The courts below have also failed to consider the question about easement of necessity. The easement of necessity has been defined in Section 13(e) & (f) of the Easement Act as under: 13. .. (a) .. (b) (c) .. (d) (e) . (f) (g) . (h) 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 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. 2. 2. The learned counsel for the appellants also drew my attention to a case Nawnitdas Laldas v. Narsidas and others reported in AIR 1936 Nagpur, page 182 in which their Lordship were considering easement of necessity and it was held by them on a consideration of subsection (e) of Section 13 of the Easement Act that what was required to be considered was: It is not a question of what was the practice at the time of partition, but what were the necessities of the case at the time of partition. If at the time of partition as consequence of the mode of partition the land had been so divided that a portion could not be used without recourse to a right of way over another portion then Section 13, Easement Act, will operate to create a right of way of necessity. The facts and circumstances of the case are entirely similar as in the instant case. 3. The learned counsel has also relied on a case Ahmad Ali Fakruddin Bohra v. Dhondba Dasrath Kalar reported in AIR 1937 Nagpur 179 wherein easement of necessity has been considered and it has been held: It is open to the plaintiff to construct another way of access by making one or two stair cases, either internal or external, or by using a ladder. This would, no doubt, email some cost and might not be so convenient, but such consequences do not lead to the conclusion that the present easement is a necessary one. The law laid down has been on the basis of cases decided by this Court in Wulz.hr v. Sharps (1893) 15 All 270) and Sukhel v. Kedar Math, (1911) 33 All 4678 ALJ 280) as also other cases. 4. I hold that the contention made by the learned counsel for the appellants is not without force and the submission that in any case it could not be an easement of necessity has been lost sight of by the two courts below and the right to enjoy the use of the Barotha cannot be said to be an easement much less an easement of necessity. 5. It was further urged that in any case it is a licence. I do not consider it necessary to go into this submission. 5. It was further urged that in any case it is a licence. I do not consider it necessary to go into this submission. It may, however, be pointed out that after holding that it was not an easement of necessity and that in any view of the matter even if licence subsisted in favour of the defendants to use the passage the licence automatically came to an end the moment it was impliedly revoked by filing the suit by the plaintiff. The rights of the defendants, if any, stood extinguished with the filing of the suit, that is why the defendants lost their right to use the Barotha for ingress and egress. The courts below erred in holding otherwise and not applying their mind to this aspect of the matter also. Learned counsel for the respondents has., however, laid great stress on the partition deed Ext. A4 from which the parties derived their rights or title and the learned lower appellate court has observed that the said document makes the case of the defendants probable that the defendants used the gallary through door 'X'. It has further been observed by the lower appellate court that: Ext. A4, Partition Decree of 1918 clearly mentions 'AUR YEH BHI SHART HAI KI BEROON AMAD MAGARVI GALLARY MAZKOOR SE DURGA PRASAD KI AMAD RAFT ROKNE YA ISKE MASDOOD KARNE KA PRAYAG DAS KO KISI VAKT AKHTYAR NA HOGA. 6. One, however, does not know as to what was the position prevailing in 1918 and whether there was a passage where the door 'X' leading to the public way on the eastern side of the defendant's portion from which they could have unrestricted ingress and egress and it cannot be established from this that a right of ingress and egress existed from the door 'X' leading to door 'Y' through the Barotha in dispute was provided as an easement of necessity in the partitiondeed in favour of the defendants. This submission of the learned counsel that in view of this recital in the partition deed the rights conferred on the defendants would not be in any way varied, rescinded or in any way hampered by the partition for times immemorial cannot be upheld to be a correct view in deciding the question and I hold that in view of the fact that the defendants have an unrestricted right of ingress and egress from the door 'S' through the public way on the eastern side of the house they do not have any subsisting right to use the door 'X' to approach the road on the western side since they can reach the said passage through the door 'S' also, the public passages being connected with each other. 7. The second appeal is, accordingly, allowed. The judgments of the two courts below are set aside and the suit of the plaintiff is decreed. The parties shall, however, in the circumstances of the case, bear their own costs. (Appeal allowed.)