J U D G M E N T The appellant in this Second Appeal is the defendant who suffered a decree for injunction in both the Courts below restraining him from preventing the plaintiff and his representatives to park their vehicles in a common passage. 2. The plaintiff/respondent herein filed O.S.No.2496 of 1990 in the court of the III Assistant Judge, City Civil Court at Hyderabad seeking a decree for permanent injunction restraining the defendant or anyone through him from preventing the plaintiff and his representatives to park their vehicles in the common passage leading to house No. 1-8-522/18A/18C at Chikadapalli, Hyderabad and also in the land appurtenant thereto. He also sought a decree against the defendant for reimbursement of certain amounts alleged to have been spent by him for construction of common walls and other structures. 3. The plaint averments are as follows: The defendant was the owner of the house bearing No.1-8-522/18A and 18C situated at Chikadapalli, Hyderabad. The plaintiff was the tenant of the defendant in respect of a portion of the said house since February, 1982. Subsequently under registered sale deed dated 16.12.1989 executed by the defendant, he purchased a part of the house bearing No.1-8-525/18A and 18C in full. The property purchased by him is situated in the rear side of the portion retained by the defendant, and therefore, it has been agreed by both the parties, by a specific clause in the sale deed, that the plaintiff and his representatives are entitled to use the common passage without any let or hindrance from the defendant or from anyone claiming through him. According to the plaintiff even prior to the said sale transaction the plaintiff as a tenant has been using the common passage as well as certain open place available before the house of the defendant for parking his vehicles. After he purchased the rear side portion, he had to construct, as per the terms under the agreement, a staircase in the open place available before the house purchased by him and also two pits were dug for fixing the drinking water taps as well as water metre. Consequently, only a small portion of about 5 square yards was left in front of his house, which is not sufficient to park even one vehicle. Consequently, only a small portion of about 5 square yards was left in front of his house, which is not sufficient to park even one vehicle. Further if any vehicle is parked in the little space available, there will be absolutely no passage to reach the portion purchased by him. Therefore the plaintiff claims that parking of vehicles in the common passage as well as in the open space available before the house of the defendant is an easement of necessity without which he cannot enjoy the property purchased by him from the defendant, According to him the space available in the common passage, which is about 62 square yards, is quite sufficient for parking at least 12 vehicles. Though the defendant was parking only one vehicle and enough space was available in the common passage as well as in the land appurtenant thereto,, he was not allowing the plaintiff or his representatives to use the said space for parking their vehicles. The plaintiff pleads that he is entitled to use the common passage for the beneficial enjoyment of the property portion purchased by him and he cannot be prevented from parking his vehicles in the common passage and the land appurtenant thereto and accordingly, sought a permanent injunction against the defendant. He also alleged that the defendant failed to construct certain common walls and other structures as agreed under the sale deed, and therefore, he had to spend certain amounts for getting the same constructed and accordingly sought a decree to direct the defendant to reimburse the said amounts incurred by him. 4. The defendant filed written statement. He admitted the sale of the rear portion of the house to the plaintiff, however, he denied the averment in the plaint that the space available in front of the portion purchased by the plaintiff is not sufficient for parking the vehicles and disputed the claim of the plaintiff that the right of parking his vehicles in the common passage is an easement of necessity. According to the defendant the plaintiff is entitled to use the common passage only to reach his house, :but he is not entitled to claim any right to park his vehicles in the common passage much less in the land appurtenant thereto. 5. On the basis of the said pleadings, the trial Court framed the following issues for trial. According to the defendant the plaintiff is entitled to use the common passage only to reach his house, :but he is not entitled to claim any right to park his vehicles in the common passage much less in the land appurtenant thereto. 5. On the basis of the said pleadings, the trial Court framed the following issues for trial. ( 1 ) Whether the plaintiff is entitled for permanent injunction and mandatory injunction as prayed for? (2) To what relief? 6. Subsequently certain additional issues as stated hereunder are also framed. (1) Whether the plaintiff is having any easementary right of parking his vehicles in the common passage and in the land appurtenant thereto as claimed by him? (2) Whether the plaintiff is entitled for reimbursement of money as claimed by him. (3) Whether the plaintiff is entitled for mandatory injunction for reconstructing/construction of the common walls in the front yard of the defendant? (4) Whether the plaintiff is entitled for damages? (5) Whether the plaintiff is entitled for future damages and interest? 7. Before the trial Court the plaintiff got examined himself as P.W.I and marked Exs.AI to A7 documents in support of his case. The defendant got examined himself as D.W.1, but did not choose to adduce any documentary evidence. 8. On appreciation of the evidence on record, the trial Court decreed the suit partly to the extent of granting injunction by restraining the defendant or anyone claiming through him from preventing the plaintiff and his representatives to park their vehicles in the common passage. The other reliefs of injunction sought by the plaintiff in respect of the open space available in front of the house of the plaintiff and for recovery of the amounts alleged to have been spent by him for constructing common walls and other structures were rejected by the trial Court. Aggrieved by the said judgment and decree dated 5.12.1996, granting injunction in respect of common passage, the defendant preferred A.S.No.374 of 1996, whereas the plaintiff filed A.S.No.21 of 1997 in so far as the reliefs rejected by the trial Court. Both the said appeals were heard together by the XII Addl. Aggrieved by the said judgment and decree dated 5.12.1996, granting injunction in respect of common passage, the defendant preferred A.S.No.374 of 1996, whereas the plaintiff filed A.S.No.21 of 1997 in so far as the reliefs rejected by the trial Court. Both the said appeals were heard together by the XII Addl. Chief Judge, City Civil court at Hyderabad and by judgment and decree dated 30.7.2001, the lower appellate court held that the only available space for parking the vehicles of the plaintiff in the common passage shown in green colour in Ex.A4 plan is an easement of necessity, and therefore, the trial Court is justified in holding that the plaintiff’s entitled to park his two wheelers in that common passage. The appellate court also confirmed the other findings of the trial Court refusing injunction in respect of the open space available before the house of the plaintiff and claim for reimbursement of the amounts from the defendant. Accordingly the lower appellate court dismissed both A.S.Nos-374 of 1996 and 21 of 1997. Questioning the judgment and decree granted by the lower appellate Court in A.S.No.374 of 1996 granting injunction in respect of common passage, the defendant has come up with the present second appeal. 9. Heard Sri C.S.K.V. Ramana Murthy, learned counsel appearing for the appellant as well as Smt.Neeraja Sudhakara Reddy, learned counsel appearing for the respondent. 10. The learned counsel for the appellant submits that the finding of the lower appellate court that right of parking the vehicles in the common passage is an easement of necessity is not based on the evidence available on record, apart from being contrary to the provisions of the Indian Easements Act, 1882. He also submits that in the facts and circumstances of the case and on proper appreciation of the evidence on record, the Courts below ought to have held that the right to park the vehicles in the common passage is not an easement at all. On the other hand, the learned counsel for the respondent submits that the findings recorded by the Courts below are on proper appreciation of the evidence on record, and the same do not warrant any interference in exercise of jurisdiction under Section 100 of CPC. 11. On the other hand, the learned counsel for the respondent submits that the findings recorded by the Courts below are on proper appreciation of the evidence on record, and the same do not warrant any interference in exercise of jurisdiction under Section 100 of CPC. 11. Having heard the learned counsel for the appellant as well as the respondent, and on a perusal of the judgments of the Courts below and the other material on record, it is noticed that admittedly the premises purchased by the plaintiff under the registered sale deed dated 16.12.1989 marked as Ex.A2 is situated in the rear side of the portion of the house retained by the defendant. 12. A reading of the recitals in Ex,A2-sale deed shows that the only way available to reach the premises purchased by the plaintiff is the common passage of 43 x 5’ and both the parties agreed that the plaintiff is entitled to use the same without any let or hindrance. For proper appreciation of Clause-5 of Ex.A2 sale deed it is extracted hereunder: “5. The vendor covenants that the vendee or his representatives are entitled to use the common passage marked in green colour in the plan annexed hereto without let or hindrance by the vendor or any one claiming through or under him.” 13. The trial Court while interpreting the said clause held that there is no limit for the use of the said passage and as such the same can be used for all purposes by the plaintiff and accordingly granted a decree for injunction restraining the defendant from preventing the plaintiff and his representatives to park their vehicles in the common passage. 14. Though the plaintiff pleaded that his right to park vehicles in the common passage is an easement of necessity and a specific issue has been framed whether the plaintiff is having any easementary right of parking his vehicles in the common passage and in the land appurtenant thereto, the trial Court did not record any finding on the said issue and decreed the suit on an interpretation of Clause-5 of Ex.A2 sale deed. The lower appellate court proceeded on altogether different footing and recorded a finding that the only available space for parking vehicles of the plaintiff, which is an easement of necessity, is the common passage shown in green colour in Ex.A4 plan. The lower appellate court proceeded on altogether different footing and recorded a finding that the only available space for parking vehicles of the plaintiff, which is an easement of necessity, is the common passage shown in green colour in Ex.A4 plan. it is pertinent to note that the lower appellate Court did not refer to the pleading and the evidence on record, but basing on the observations of the Court in the local inspection, recorded the aforesaid finding, and in the result confirmed the decree granted by the trial Court and dismissed the appeal of the defendant. 15. In the aforesaid set of facts the substantial question of law that arises for consideration in this Second Appeal is as follows: “ Whether the right of the plaintiff to park vehicles in the common passage connecting the property transferred to him by virtue of a sale can be declared as an easement of necessity within the meaning of Section 13 (a) of the Indian Easements Act without recording a finding that such right/privilege to park the vehicles is an absolute necessity for enjoyment of the property transferred in his favour?” 16. Section 13 of the Easements Act. 1882 deals with “easements of necessity”, and quasi-easements. Section 13. to the extent necessary, runs as follows: 13. Section 13 of the Easements Act. 1882 deals with “easements of necessity”, and quasi-easements. Section 13. to the extent necessary, runs as follows: 13. Easements of necessity and quasi-easements:- Where one person transfers or bequeaths 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; (c) If an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the trans-feror 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 later as it was enjoyed when the part in took effect, he shall, unless a different intention is ex-pressed or necessarily implied, be entitled to such easement. The easement mentioned in this section, clauses (a), (c) and (e) are called easements of necessity. Where immovable property passed 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. Explanation:-...........” 17. As can be seen Section 13 (a) provides for a situation where one person transfers or bequeaths immovable property and where an easement in the property of the transferor is necessary for the enjoyment of the said property transferred, transferee is entitled to such easement. Explanation:-...........” 17. As can be seen Section 13 (a) provides for a situation where one person transfers or bequeaths immovable property and where an easement in the property of the transferor is necessary for the enjoyment of the said property transferred, transferee is entitled to such easement. To establish an easement of necessity as mentioned under Section 13 (a), it is necessary to plead and prove that the property, which has been severed by virtue of a transfer, cannot be enjoyed without a particular privilege in or over the land of the transferor. It is settled principle of law that the easement of necessity was an easement without which the property transferred cannot be used at all and not one merely necessary to a reasonable enjoyment of the property. Thus the necessity contemplated under section 13 (a) is an absolute necessity. Hence an easement of necessity cannot be declared without recording a finding on the basis of the evidence on record that such easement is an absolute necessity for enjoyment of the property transferred. 18. In the instant case it is also clear from Ex,A2 that both the parties agreed that the plaintiff and his representatives are entitled to use the common passage without any let or hindrance. However, there is no express covenant under Ex.A2 so far as parking of the vehicles is concerned. The lower appellate Court on local inspection recorded a finding that whatever space available in front of the premises purchased by the plaintiff is not sufficient to park any vehicles and the only available space for parking vehicles of the plaintiff is the common passage and therefore it is an easement of necessity. 19. It is pertinent to note that the lower appellate Court did not advert at all to the question whether the right to park the vehicles in the common passage is an absolute necessity for enjoyment of the property purchased by the plaintiff under Ex.A2. On the other hand it has proceeded on a wrong premise and concluded that since the common passage is the only space available to park the vehicles of the plaintiff, it is an easement of necessity. The said finding of the lower appellate Court is not in terms of the requirements of Section 13 (a) of the Indian Easements Act and cannot be sustained. The said finding of the lower appellate Court is not in terms of the requirements of Section 13 (a) of the Indian Easements Act and cannot be sustained. That apart, the lower appellate Court being the final Court of fact grossly erred in recording findings without appreciating the pleadings and the evidence on record. 20, In the circumstances the irresistible conclusion would be to set aside the judgment and decree of the lower appellate Court in A.S.No.374 of 1996 and to remit the matter to the lower appellate Court for consideration afresh on the basis of the evidence on record. 21. Both the counsel make a request to fix up some time for the disposal of the appeal. Accordingly, the lower appellate court is directed to dispose of the appeal after hearing both parties within two months from the date of receipt of this Judgment. 22. Accordingly, the Second Appeal is allowed. The matter is remitted back to the lower appellate Court for fresh consideration. There shall be no order as to costs. --X—