HARI NATH TILHARI, J. ( 1 ) -THIS is defen dants' second appeal under Section 100 of the Civil Procedure Code, from the judgment and decree dated 18. 10. 1990, whereby the lower appellate Court, Civil Judge, Gadag (Shri. Kazi Md. Mujeebulla), dismissed the defendants' first appeal (Regular Appeal No. 40/90) and affirmed the judgment and decree dated 28. 2. 1990, delivered by Sri. A. S. Patil. Principal Munsiff, Gadag, in Regular Suit No. 159/85 (Naganagouda Paruatagouda harlapur v. Moulasab Rajesab Mullanauar ). whereby the trial Court had decreed the plaintiffs' suit for mandatory injunction, after having declared that the plaintiffs have got right to receive light and light through window "w" and they have also got the right to discharge the roof water through the water spout "s" and they have got a right to repair the AB wall by passing in ABCD space and directed the defendants-appellants to remove the super structure constructed by them in the suit ABCD space, within 3 months from the date of decree, as well as issued prohibitory injunction directing not to construct any structure over ABCD space. ( 2 ) THE brief facts of the case are that the plaintiff-respondent filed the suit for Mandatory Injunction, directing the defendant-appellant to remove the super structure adjacent to AB wall of the plaintiffs as well as to hold that plaintiffs have got right to receive and enjoy light and air through "w" window and right to discharge the rain water of their house through water spout 's' and right to repair the ab wall by passing in ABCD open space, as well as directing them not to construct, any super structure on the aforesaid open space. Plaintiffs as per plaint allegations had purchased VPC. No. 307/2 in the year 1970 and according to the plaintiffs on wall AB there was "w" window and water spout at point "s". Plaintiffs' case further has been that plaintiffs predecessors were enjoying the light and air from the said window and discharging of rain water through water spout "s" and it reaches the public road towards the northern side. Plaintiffs' case further has been that plaintiffs predecessors were enjoying the light and air from the said window and discharging of rain water through water spout "s" and it reaches the public road towards the northern side. Plaintiffs alleged that as such they have got an easement of necessity and they have got the right to repair the AB wall passing through ABCD open space and they had constructed a super structure and they have also removed the water spout and window when they were not in station. Plaintiffs further case is that defendants in 1985 made construction on a portion of 8 feet x 6 feet super structure towards the AB wall of the plaintiff and created obstruction to the enjoyment of light and air from window "w" and water spouts "s" from which used to flow the rain water. ( 3 ) DEFENDANTS filed the written statement contesting the plaint case, denied the plaint allegations. Defendants claim ownership right with reference to ABCD open space and claim to be in possession thereof, since before the purchase of VPC. No. 233, purchased by the grand father of the defendants and they allege that the structure 6' x 10 was 70 years old, wherein defendants are residing. Defendants denied plaintiffs' right of easement and alleged that they had no right to enjoyment of light and air from the Southern wall of the defendants. ( 4 ) ON the basis of the pleadings of the parties, the trial Court framed the following issues :-1. Whether the defendants prove that they are the owners of ABCD space as contended in para-2 of written statement? 2. Whether the defendants prove that the room in ABCD space to the north of plaintiffs' house AB wall is in existence since last 70 years, as contended in para-3 of written statement? 3. Whether the plaintiffs prove the right of receiving and enjoying light and air through window "w" and right to discharge the roof water of the house through water spout "s" and right to repair the ab wall by passing in ABCD space? 4. Whether the plaintiffs prove that defendants have constructed room in the month of April, 1985, in the open space ABCD towards north of AB wall causes obstruction to plaintiffs of their ease- mentary rights as contended by the plaintiffs? 5. Whether the plaintiffs have got rights as easement of necessity? 6. 4. Whether the plaintiffs prove that defendants have constructed room in the month of April, 1985, in the open space ABCD towards north of AB wall causes obstruction to plaintiffs of their ease- mentary rights as contended by the plaintiffs? 5. Whether the plaintiffs have got rights as easement of necessity? 6. Whether the plaintiffs are entitled for prohibitory and mandatory injunctions and other reliefs? 7. What order or decree? ( 5 ) THE trial Court answered Issue Nos. 1 and 2 in the negative and held under issue No. 4 that construction was constructed about 10 years back. Issue Nos. 3, 5 and 6 have held in affirmative and after that the answering the issues the trial Court decreed the plaintiffs' suit for the reliefs as claimed in the plaint. ( 6 ) THE defendants having felt aggrieved from the judgment and decree of the trial court preferred Regular First Appeal. The lower appellate Court after having heard the counsel for the parties dismissed the appeal and affirmed the findings "judgment" and the decree of the trial Court and granted 3 months time to the "appellant defendant to remove the super structure wall entirely, as was granted by the trial Court. ( 7 ) HAVING felt aggrieved from the judgment and decree of the Courts below, the defendants have come up in second appeal under Section 100 of the Code of Civil Procedure. ( 8 ) I have heard Sri. Sanath Kumar, holding brief for the learned counsel for the appellant Sri. U. L. Narayana Rao and Sri. S. S. Chikka Bhat holding brief for Sri. Jayakumar, s. Patil, learned Counsel for the respondents. ( 9 ) LEARNED Counsel for the appellant has submitted that finding recorded by the two courts below on issue Nos. 4 and 5 are erroneous in law in substantial nature. Learned counsel submitted no doubt the two Courts below have recorded the finding that the plaintiff has proved the easement of necessity, but the finding is vitiated by substantial error of law, as the two Courts below did not apply their mind to the basic question, as to what is meant and understood by the expression "easement of necessity" and on the fulfilment of what conditions a person may be said to be vested with the right of easement of necessity. Learned counsel invited my attention to the findings recorded by the two courts on Issue Nos. 2 and 3 framed by the trial Court, which related to the question, whether plaintiffs prove right of receiving and enjoying air and light through the window "w" and right to discharge rain water through water spout "s" and right to repair the wall ab, by way of easement of necessity. Learned counsel submitted that the Courts below have not applied its mind to the requirements of easements of necessity, as prescribed by Section 13 of the Easement Act. Learned Counsel submitted that there cannot be any thing an easement of necessity beyond Section 13 of the Act. He submitted easementary right is a statutory right which may be acquired on the fulfilment of conditions and easement of necessity is a variety of easement or mode of acquisition or getting the right of easement by necessity. Section 13 of the Indian Easements Act, 1882, prescribes the condition for acquiring that right and that had to be established keeping in view the provisions of Section 13 by the Court: Learned Counsel contended that the Court below ignored necessary ingredients required, to be established by section 13 of the Act. Learned Counsel further contended that there was no claim of acquisition of easement in the pleading and therefore the very basis for granting the decree for injunction by the lower appellate court, really has not been established according to law, namely easementary right and therefore, the decision which has been arrived at by learned Courts below suffer from substantial error of law. Learned Counsel invited my attention to the pleadings of the parties to emphasise his submission. ( 10 ) ON behalf of the appellants, learned counsel also tried to raise another argument in regard to decree for mandatory injunction. there should be specification of the properties in respect of which mandatory injunction was to be granted. On behalf of the respondents sri. Chikka Bhat submitted that the two Courts below have recorded a concurrent findings of fact to the effect that the plaintiffs have established the right of easement to enjoy the light and air from Window "w" and right to flow out water from point "s" and right to repair wall AB from other side and that is as of necessity. Chikka Bhat submitted that the two Courts below have recorded a concurrent findings of fact to the effect that the plaintiffs have established the right of easement to enjoy the light and air from Window "w" and right to flow out water from point "s" and right to repair wall AB from other side and that is as of necessity. These being concurrent findings of fact should not be interfered with by this Court under Section 100 of the CPC, as second appeal lies only on substantial question of law. Learned Counsel contended that the property has been demarcated by the letters ABCD in the Map and therefore, there is nothing wrong in granting injunction. Learned counsel for the respondents further contended that the defendant-appellant had failed to prove his ownership of the property, ABCD as defined by the Court below and as such the appeal, learned Counsel contended deserves to be dismissed. ( 11 ) I have applied my mind to the contentions advanced by learned Counsel for the parties in the suit for permanent injunction- prohibitory or, mandatory, Plaintiff has to establish his title to the property in respect of which he is claiming the injunction and right which he wants to enforce. It is well settled that the plaintiff has to stand on his own legs and cannot be allowed to succeed on the basis of the weakness of the defendants' case. (See moran Mar Basselios Catholicos v. Most rev. Mar Poulose Athanasius) The material observations are it paragraph 33. In the present case the pleading of the plaintiffs reveal that the plaintiffs have claimed that plaintiffs have purchased the property that is bearing VPC. No. 307/2 in 1970 and they had window "w" and water spout "s" and the plaintiffs predecessors were enjoying light and air from the window "w" and used to run rain water of the house to flow through the spout "s" which used to reach the public road towards Northern side. Plaintiffs claim that as their predecessors were enjoying the light and air and flowing of water, plaintiffs-respondents got easement by way of necessity and they have also got the right to repair the wall AB, passing through the open space ABCD. Plaintiffs claim that as their predecessors were enjoying the light and air and flowing of water, plaintiffs-respondents got easement by way of necessity and they have also got the right to repair the wall AB, passing through the open space ABCD. It appears the plaint has been drafted, with all due respect to the learned counsel, without looking to Section 13 of the Act and it was pleaded that plaintiffs have acquired easement of necessity. Section 13 of the Easements Act defines the cases where the easement by necessity may be claimed. Easementary right no doubt can be claimed by person in dominant heritage qua the servient heritage either by necessity or as quasi easement, or by way of prespective user for 20 years or more. While easement of necessity will arise in cases where the owner of the property transfers or bequeathes his property or a part of the property, while retains or uses either part of that property or other property adjacent to the property transferred. That such a right arises in between the transferor and the transferee or between the testator or the legatee or in cases where the property had been jointly owned by several persons and partition takes place, it is in such cases the case of right by easement by necessity or quasi easement may arise. It will be proper at this juncture to quote section 13 of the Indian Easements Act, 1882, in extenso. Section 13 of the Easements Act reads as under :-"3. It will be proper at this juncture to quote section 13 of the Indian Easements Act, 1882, in extenso. Section 13 of the Easements Act reads as under :-"3. Where one person transfers on bequeathes immovable property to another.- (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement: or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or (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; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. 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. The easements mentioned in this sections, clauses (a), (c), and (e) are called easements of necessity. Where immovable, property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. " ( 12 ) AS mentioned in the section, easements mentioned in Section 13 vide. , clauses (a), (c) and (e) are called easements of necessity and those case covered by (b), (d) and (f) may be case of quasi easements. " ( 12 ) AS mentioned in the section, easements mentioned in Section 13 vide. , clauses (a), (c) and (e) are called easements of necessity and those case covered by (b), (d) and (f) may be case of quasi easements. Section 13 provides that where immovable property passes by operation of law, the persons from whom and to whom it so passes for the purpose of the Section may be deemed to be transferors and transferees as well. The right of easement is a statutory right and on this basis a person can claim his right as specifically provided in the Act. Right of easement may be claimed as mentioned as of necessity or as of quasi easement under Section 13, that is of easement of necessity. Section 15 of the Easements Act provides for acquisition of easementary right by prescription and enjoyment of that easement without interruption for a period of 20 years or more, that may be said to be case of acquisition of right of easement by prescription. No other mode of acquisition of easementary right has been provided in the Easements Act. ( 13 ) IN the plaint no doubt the expression had been used as easement of necessity and the trial Court framed that issue whether plaintiff respondent has acquired right of easement of necessity. On the basis of the pleadings of the parties, really the trial Court ought to have clarified from the plaintiff or his counsel how does he alleges acquisition of right by easement of necessity. The proper issue would have been- (A) "whether the predecessor in title of the plaintiffs from whom the plaintiffs-respondents have acquired the property by way of saje deed executed in favour of the plaintiffs had perfected right of easement of light, and 'air as claimed by the plaintiffs; (B) Whether by virtue of the deed of transfer executed by predecessor in title of the plaintiffs, the plaintiffs have acquired the right of easement by transfer of the property under sale?, and if necessary, the pleadings ought to have been clarified. No such issues have been framed by the trial Court, apart from that two courts below have not applied their mind to the question whether necessary ingredients which are required to be established under section 13 of the Easements Act, have been made out by the plaintiffs. No such issues have been framed by the trial Court, apart from that two courts below have not applied their mind to the question whether necessary ingredients which are required to be established under section 13 of the Easements Act, have been made out by the plaintiffs. ( 14 ) REGARDING finding on issue No. 3. neither it has been held that the two properties did belong to the common ancestor of the plaintiffs predecessors and the predecessors of the defendants-appellants, nor it has been so pleaded even. The Courts below having recorded no finding whether the owner of the transferor had been enjoying these alleged rights or these facilities of air, light and water passage for more than 20 years, before making the transfer. The finding does not indicate that plaintiffs have proved this enjoyment for more than 20 years. Infact plaintiffs have also not claimed specifically the acquisition of right of easement by prescription. Their only case is their predecessors have been enjoying and thereafter under the deed they have been enjoying as of necessity so they have acquired easement of necessity of a clear mis-conception of the right of easement of necessity. The courts below also dealing with issue No. 5 which is to the effect whether plaintiffs have got rights of easement of necessity, it has been observed that the plaintiffs have proved that they have got right of easement of necessity of receiving light and air through window and right to discharge or run water of the house through water spout "s" and to repair the wall AB by passing ABCD space. The court below has only taken the view-"in view of the existence of the house on the Southern side belonging to Parasappa and 3 other persons on the Northern side, the plaintiffs have no other place to fix the window for air and light and similarly they have no convenient space to place the water-spout to let out the roof rain water. It further took the view when the defendants have failed to prove that they are the owners of ABCD space and have their room much earlier than to the filing of the suit, the question of forcing the plaintiffs to seek out any other mode or place to let out the water of their roof, does not arise. It further took the view when the defendants have failed to prove that they are the owners of ABCD space and have their room much earlier than to the filing of the suit, the question of forcing the plaintiffs to seek out any other mode or place to let out the water of their roof, does not arise. So far as the easement of air and light is concerned, it is an absolute necessity as per the facts and circumstances of the case. " ( 15 ) THE observations of the Court below clearly indicate the misconception and confusion, as to the nature of right of easement by necessity. Easement of necessity is a specific right given within the four comers of Section 13 of the Act and once those limits and conditions have been specified, unless conditions are established, right of easement by necessity cannot accrue or arise. Here the two properties belong to two different owners and the defendants have not been the transferors of the property in favour of the plaintiffs. So there may not be a question or right of easement, having accrued in favour of the plaintiffs. It has never been the case of the plaintiffs that two properties belong to two common heris or the like. ( 16 ) THUS considered in my opinion that the Courts below recorded the finding on issue Nos. 3 and 5, on a complete misconception of law of easement and in particular easement of necessity and therefore, the case cannot be said to be one concluded by pure and simple concurrent finding of fact. The finding of fact, arrived at if is based on complete mis-conception of law relating thereto and without investigating the necessary facts, can be said to have been arrived at in an erroneous manner and erroneously and error of that nature can only be said to be substantial error of law. The proper course for the courts below ought to have been to clarify the things. Any way it appears just and proper to me that the Second appeal should be allowed without going into the second question for the present that the specification of the property or the second additional issue raised by the counsel in the appeal. The proper course for the courts below ought to have been to clarify the things. Any way it appears just and proper to me that the Second appeal should be allowed without going into the second question for the present that the specification of the property or the second additional issue raised by the counsel in the appeal. The appeal has to be allowed and direction has to be given to the trial Court to try the suit afresh, after framing the following issues:1. Where the plaintiffs predecessors in title had acquired any right of easement of light and air, as alleged through the window "w" and letting roof water from the water spout "s" and repairing wall ab and if so whether by prescription or by necessity? 2. Whether under sale deed of 1970, relied the plaintiffs, those rights did pass on automatically and accrued to the plaintiffs along with the property? issue regarding easement of necessity is already there. There is no need to frame that issue. But these two issues shall be tried along with other issues. It will be open to the parties to amend the pleadings and if the Court below thinks it necessary that any additional evidence may be allowed, it will be open to the parties to lead evidence. Thus considered, the Second appeal is hereby allowed. The judgment and decree of the trial Court as well as of the first appellate court are hereby set aside and the case is remanded for trial afresh in the light of the observations made and to be decided afresh in respect of all issues framed by the trial court as well as additional issues framed in this judgment and as mentioned earlier, it will be open to the Court below to consider and if necessary to allow for amendment or producing of additional evidence. Appeal allowed. Matter remanded for fresh trial. --- *** --- .