JUDGMENT J.B.Pardiwala, J. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') is at the instance of the original defendants and is directed against the judgment and order dated 3rd July 2015 passed by the Additional Sessions Judge and 10th (Adhoc) Additional District Judge, Junagadh, in the Regular Civil Appeal No.21 of 2014 arising from the judgment and decree passed by the Principal Civil Judge, Visavadar, dated 11th March 2014 in the Regular Civil Suit No.35 of 2011 filed by the respondents herein - original plaintiffs for declaration and permanent injunction. 2. For the sake of convenience, the appellants herein shall hereinafter referred to as the original defendants and the respondents shall hereinafter referred to as the original plaintiffs. 3. The defendants are the owners of the land bearing Survey No.111 situated at village Limadhra, Taluka Visavadar, District Junagadh. The plaintiff no.1 is the owner of the land bearing Survey No.105 paiki 7 admeasuring H-1-13-1-A and Survey No.105 paiki 9 admeasuring H-1-34-56-A. The respondent no.2 - original plaintiff no.2 is the owner of the land bearing Survey No.105 paiki 3 admeasuring H-7-47-66-A and the respondent no.3 - original plaintiff no.3 is the owner of Survey No.106 paiki 1 admeasuring H-1-65-92-A situated at village Limadhra, Taluka Visavadar, District Junagadh. The respondents had been using the road/way passing through the Survey Nos.122, 109 and 111 respectively to enter their fields/land from the village, and the same was being used past more than 100 years even by the ancestors of the respondents. The appellants started causing obstruction by blocking the road which passes through the middle of the Survey No.111 (appellants' land) due to which the respondents and other persons who had been using the same road started facing difficulties in entering their lands. In such circumstances, the respondents instituted the Regular Civil Suit No.35 of 2011 before the learned Civil Judge, Visavadar, praying for a declaration that the respondents have a right to use the land passing through the Survey No.111 and for permanent injunction against the appellants restraining them from blocking or changing the nature of the way passing through the Survey No.111 which is being used by the respondents. 4. The defendants appeared before the trial court and contested the suit by filing their written statement vide Exh.29. 5. 4. The defendants appeared before the trial court and contested the suit by filing their written statement vide Exh.29. 5. Having regard to the pleadings of the parties, the trial court framed the following issues vide Exh.62. "(1) Whether plaintiffs prove that way to their land is passing from the Survey No.111 and they have a right to pass from this way ? (2) Whether plaintiffs prove that the defendants has made obstruction on the disputed way and obstructed them from passing on this disputed way ? (3) Whether plaintiffs are entitled for seeking relief mentioned in the plaint ? (4) What order and decree ?" 6. The issues framed by the trial court referred to above came to be answered as under : "(1) In the affirmative. (2) In the affirmative. (3) Partly in the affirmative. (4) As per final order." 7. Thus, it appears that the trial court recorded the first two issues in the affirmative and the third issue came to be answered partly in the affirmative. Although the first two issues framed by the trial court came to be answered in favour of the plaintiffs, yet the trial court took the view that as there is an alternative root available to the plaintiffs for the purpose of entering into their agricultural fields, the plaintiffs should not insist for using the right of way passing through the Survey No.111, i.e. the land owned by the defendants. The operative part of the order passed by the trial court reads as under : "ORDER 1. The plaintiff's suit is partly allowed. 2. It is declared in favour of the plaintiffs and against the defendants that the plaintiffs have a right and authority to walk from the alternative road located on the western side in the land bearing survey no. 111, which is passing from inside the western part of the land belonging to the defendant. 3. As a consequential relief, permanent injunction is granted against the defendants that the plaintiffs have right and authority to walk from the alternative road located on the western side border in the land bearing survey no. 111, which is passing from inside the western part of the land belonging to the defendant. 3. As a consequential relief, permanent injunction is granted against the defendants that the plaintiffs have right and authority to walk from the alternative road located on the western side border in the land bearing survey no. 111, which is passing from inside part of the western side border of the land belonging to the defendant and no obstruction shall be caused by the defendants themselves or their men to the plaintiffs while passing from that road or carrying agricultural equipments or that the road shall not be altered in any manner. 4. It is further ordered that if the road is less than 12 feet wide, the defendant shall make this road 12 feet wide at their own cost within 30 days so that no hindrance or difficulty is caused to the plaintiffs while passing through the same. 4. The order passed below Exh.5 on 29.2.12 is hereby vacated by this order. Despite the same, to keep peace and harmony, both the parties shall maintain status quo as per the order passed below Exh.5 till the appeal period. 5. Parties to bear their own cost. 6. Decree be drawn accordingly." 8. The plaintiffs, being dissatisfied with the judgment and decree passed by the trial court, challenged the same by filing the Regular Civil Appeal No.21 of 2014 in the District Court at Junagadh. 9. The lower appellate court allowed the appeal filed by the plaintiffs and quashed and set-aside the judgment and decree passed by the trial court. The lower appellate court granted the relief prayed for by the plaintiffs in the plaint. The operative part of the order passed by the lower appellate court reads as under: "FINAL ORDER (1) The Regular Civil Appeal No.21/2014 of the present appellant/original plaintiff is hereby allowed and the declaration and order passed by the Principal Civil Judge, Visavadar, in the Regular Civil Suit No.35/11 is hereby quashed. (2) The prayer made in para-10 of the original suit by the plaintiff, "(1) to grant permanent injunction restraining the defendants, their men, agents, servants, etc. from causing any obstruction in the way of the plaintiff to reach his agriculture field which passes through the agriculture field of the defendant from Survey No.111 and (2) to declare that the defendants, their men, agents, servants, etc. from causing any obstruction in the way of the plaintiff to reach his agriculture field which passes through the agriculture field of the defendant from Survey No.111 and (2) to declare that the defendants, their men, agents, servants, etc. have no right to obstruct the plaintiff from passing through the agriculture field of the defendant from Survey No.111" is hereby granted. (3) The costs of the appeal be borne by the parties. (4) The decree be drawn as per the order. (5) One copy of this order as well as the records and proceedings of the Regular Civil Suit No.35/2011 be sent to the lower court." 10. The defendants, being dissatisfied with the judgment and order passed by the lower appellate court, are here before this Court with this Second Appeal under Section 100 of the Code. 11. This Second Appeal has been admitted for hearing the parties on the following substantial questions of law: "(i) Whether the lower Appellate Court has committed an error of law in misappreciating the evidences on record more particularly the measurement sheet at Exh. 142 and allowing the appeal of the respondents plaintiffs ? (ii) Whether the lower Appellate Court has committed an error of law in misappreciating the evidences on record and in not holding that there being an alternative way existing as held by the trial Court, the respondents plaintiffs could not have claimed easementary right of way by necessity through the middle of the survey No.111 belonging to the appellants - defendants ?" SUBMISSIONS ON BEHALF OF THE DEFENDANTS/ APPELLANTS : 12. Ms.Mandavia, the learned counsel appearing for the defendants, vehemently submitted that the lower appellate court committed a serious error in passing the judgment and decree. According to Ms.Mandavia, the trial court rightly invoked Section 22 of the Indian Easements Act as there is an alternative root available through Survey No.111. According to Ms.Mandavia, although the plaintiffs may have a right of way through the middle of the Survey No.111 owned by her clients, i.e. easementary right of way by grant, yet as there is an alternative root available passing through the border of the western side of the Survey No.111, the plaintiffs cannot insist that they should be permitted to use the way passing through the middle of the Survey No.111. Ms.Mandavia placed strong reliance on the following averments made in ground no.(D) as stated in the memorandum of the Second Appeal. "(D) The appellants submit that the Learned Appellate Court has not taken into consideration and appreciated the important fact that as per the Rojkam which is made by the plaintiff himself, no way in question was in existence. But the Learned Trial Court has passed the interim order and directed the appellants to open the road and hence in second Rojkam the said way was shown as open. The Learned Appellate Court has not taken into consideration and appreciated the Section-22 of the Easements Act. In Section 22 of Easements Act itself it is mentioned that easementary right should be used in the manner so that the other party should not suffer less. It is also not considered that when there are two ways in existence, then naturally the alternative way which is not passing through the field of the appellants should be used. The Appellate Court has not given the reason that why the way which is passing through middle of the firm should be used by the respondents. Why the respondents cannot use the alternative way. Without giving findings on this point, the Appellate Court has reversed the judgment which is not just and proper. The appellants submit that while going through the judgment given by the Appellate Court, the Honourable Court would find that the Appellate Court has relied upon the discussion of the Trial Court with regard to issue no.1, that whether the plaintiff prove that way to their land is passing from Survey No.111 and they have right to pass from this way. And that issue held in affirmative. And only relying upon this issue the Appellate Court has reversed the judgment. But the Learned Appellate Court has not seen the issue No.3, which is raised by the Learned Trial Court that the plaintiff is entitled for seeking relief mentioned in plaint and the discussion on issue no.3 is in right perspective and while giving substantial justice to both the parties, the issue is held partly in affirmative. But the Appellate Court has wrongly reversed the entire judgment without looking into the findings of the respondent no.3." 13. But the Appellate Court has wrongly reversed the entire judgment without looking into the findings of the respondent no.3." 13. In such circumstances referred to above, Ms.Mandavia prays that there being merit in this Second Appeal, the same may be allowed and the judgment and order passed by the lower appellate court be quashed. SUBMISSIONS ON BEHALF OF THE PLAINTIFFS/ RESPONDENTS : 14. Mr.Anshin Desai, the learned senior counsel appearing for the original plaintiffs, vehemently submitted that no error, not to speak of any error of law, could be said to have been committed by the lower appellate court in passing the impugned judgment and order. Mr.Desai would submit that the trial court committed a serious error in taking the view that as there is an alternative root available, the plaintiffs are not entitled to the main relief in view of Section 22 of the Indian Easements Act. Mr.Desai submitted that the alternative root/way as suggested by the trial court gets submerged for almost five months in a year during the monsoon. Mr.Desai placed on record few photographs showing the condition of the alternative way during the monsoon season. Mr.Desai invited the attention of this Court to Exh.100 (Tippan). Exhibit-100 is a map which clearly shows the road passing through the Survey No.111. Mr.Desai, the learned senior counsel submits that both the courts have concurrently held that the plaintiffs have a right of way through the road in the Survey No.111 and such right is an easementary right by way of grant. However, according to Mr.Desai, the trial court committed an error in thereafter taking the view that as there is an alternative way in the very same survey number, the plaintiffs should use that alternative way and not the one they have been using past many years. According to Mr.Desai, this part of the order of the trial court has been rightly corrected by the lower appellate court. Mr.Desai also submitted that the plea as regards the alternative way was raised before the trial court only after the recording of the evidence was over. In fact, it was not permissible for the defendants to raise such a plea after the stage of evidence was closed. In such circumstances referred to above, Mr.Desai, the learned senior counsel appearing for the original plaintiffs prays that there being no merit in this Second Appeal, the same may be dismissed. ANALYSIS : 15. In fact, it was not permissible for the defendants to raise such a plea after the stage of evidence was closed. In such circumstances referred to above, Mr.Desai, the learned senior counsel appearing for the original plaintiffs prays that there being no merit in this Second Appeal, the same may be dismissed. ANALYSIS : 15. The principles relating to the scope of a Second Appeal under Section 100 of the Code as discernible from various decisions of the Supreme Court are as under : (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 16. As I have the opportunity of dealing with the subject of easement, let me give a fair idea as regards the various provisions of the Indian Easements Act. The term Easement is defined in Section 4 of the Indian Easements Act, 1882, which reads as under : "4. An easement is a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation :- In the first and second clauses of this Section, the expression 'land' includes also things permanently attached to the earth; the expression 'beneficial enjoyment' includes also possible convenience, remote advantage, and even a mere amenity; and the expression 'to do something' includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon." 17. Easement is a term connected to property. Under the property laws, easement plays most important role which enables a person owning property to enjoy his property rights without any hurdle. Easement is a term connected to property. Under the property laws, easement plays most important role which enables a person owning property to enjoy his property rights without any hurdle. Easement as defined under the First Chapter and Section 4 of the Act, is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of the land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. Kinds of Easements : 18. Section 5 of the Indian Easements Act, defines different kinds of easements like continuous and discontinuous, apparent and non-apparent easements. A continuous easement is one whose enjoyment is or may be continual without the act of man. A discontinuous easement is one that needs the act of man for its enjoyment. An apparent easement is one the existence of which is shown by some permanent sign, which, upon careful inspector by a competent person, would be visible to him. A non-apparent easement is one that has no such sign. Illustrations (a) A right annexed to B's house to receive light by the window without obstruction by his neighbour 'A'. This is a continuous easement. (b) A right of way annexed to A's house over B's land. This is a discontinuous easement. (c) Rights annexed to A's land to lead water thither across B's land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matter These are apparent easements. (d) A right annexed to A's house to prevent B from building oil his own land. This is a non-apparent easement. Essential of an Easement : [A] There must be an owner or occupier of certain land. [B] There must be a right vested in such owner or occupier (as such owner or occupier) to do and continue to do something, or to prevent and continue to prevent something done in, or upon, or in respect of, some other land. [C] The right must be for the beneficial enjoyment of his land. Thus, if the right is not in any way connected with the enjoyment of the dominant tenement (property) it cannot be an easement. [C] The right must be for the beneficial enjoyment of his land. Thus, if the right is not in any way connected with the enjoyment of the dominant tenement (property) it cannot be an easement. [D] The other land in or upon which the right to be exercised, must not be owned or occupied by him, but by some other person. Characteristics of an Easement : [A] There must be a dominant and servient tenement. [B] The right of easement must be possessed for the beneficial requirement of the dominant tenements. [C] Dominant and servient owners must be different persons. [D] The right should entitle the dominant owner to do and to continue to do something or to prevent and continue to prevent something being done, in or upon or in respect of the servient tenement. [E] That something must be of a certain or well defined character and must be capable of forming the subject matter of a grant. Conditions for the acquisition of an Easement : [A] Peaceably : The word 'peaceably' was held to mean that the plaintiff who claims to be the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 20 years; nor had he been prevented by the use of physical force by the defendant in his enjoyment of such right. [B] Openly : Except in the case of light and air, the enjoyment must be open and manifest and not clandestine. The reason of the requirement that the user must be open lies in the fact that acquiescence lies at the root of all prescription, and where the enjoyment is not open it cannot be said that it is within the knowledge of the owner of the servient tenement. [C] As an easement : If as person claims a site as owner, he cannot claim a right of way over the same as an easement. The words denote that the acts relied upon as evidence of the existence of a right must be done by one person upon the land of the other. [D] As of right : It means that the enjoyment must be as of a right for twenty years (if against the government thirty years) or more without any leave or licence. The words denote that the acts relied upon as evidence of the existence of a right must be done by one person upon the land of the other. [D] As of right : It means that the enjoyment must be as of a right for twenty years (if against the government thirty years) or more without any leave or licence. [E] Without interruption : Means without any obstruction on the part of the person against whom the easement is claimed. Mere non-user of the easement for a time is not an interruption within the meaning of the section. [F] Enjoyment must be for twenty years : The enjoyment must be continued down to within two years of the date of suit in which the right is contested i.e. where a person is in the continuous enjoyment of an easement for more than 20 years and an obstruction is thereafter made, he must bring his suit to establish his right within a period of limitation of two years from the date of such obstruction, otherwise his right will be defeated. Who will acquire the Easement : The following are the categories of the persons who acquire the easement. [A] Occupier : Where a person is in possession of property on behalf of owner, he can claim an easement. [B] Tenant : Tenants in dominant tenement enjoying an easement as of right, acquire it from the landlord. When the plaintiff and defendant are tenants of a common landlord, the plaintiff can not acquire any right of easement over the defendants' tenancy land either under section 13 or section 15; for the benficial enjoyment of his land. There is however, no bar to his acquiring the right as a customary easement or on the basis of implied grant from the landlord but not on the basis of prescription. Tenant can acquire an easement over the adjoining land belonging to his landlord for the beneficial enjoyment of other immovable property not his own but belonging to someone else which also he happens to occupy for the time being as a tenant. Tenant can claim right of easement over his landlord's property based in immemorial user but not on prescription. [C] Co-owner : Easmentary right can not be claimed by coowner in respect of a land held by him in co-ownership with other. Tenant can claim right of easement over his landlord's property based in immemorial user but not on prescription. [C] Co-owner : Easmentary right can not be claimed by coowner in respect of a land held by him in co-ownership with other. The other co-owner's consent is not necessary for the acquisition of any easement by any co-owner. But as his right of transfer of his interest is only a limited right he can not impose any easement on the joint property or any part thereof without the consent of his other co-owner. [D] Lessee : No lessee can acquire an easement over the immovable property leased to him for the beneficial enjoyment of another property of which he happens to be the owner. [E] Trespasser : Although the phrase, "any person in possession" would apparently include a trespasser also, but it can not be said that, he acts, "on behalf of" the real owner". Therefore, a trespasser can not acquire the easement. [F] Transferee of land : The right of easement of an immovable property is required for the beneficial enjoyment of such property. This right is accord to the civilized society. The enjoyment of right of easement depends on the coordination of the rights existing on the serivent and dominant heritage. How an Easement is acquired : [A] By grant (section 8) :Vide section 8, an easement may be imposed by anyone in the circumstances and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. A grant of an easement may be made orally without any writing because the creation of easement by the servient owner over the land in his ownership or occupation does not amount to a transfer of ownership. The grant of easement may be express or implied from the circumstances and conduct of the parties to the easement. It may be presumed from the long user or may be inferred from some usage prevailing in the locality. [B] By necessity, when there is a severance of two tenements (section 13) : An easement of necessity means a necessity which is absolutely necessary for the enjoyment of a tenement into several independent units. Mere convenience is not the test for an easement of necessity. [B] By necessity, when there is a severance of two tenements (section 13) : An easement of necessity means a necessity which is absolutely necessary for the enjoyment of a tenement into several independent units. Mere convenience is not the test for an easement of necessity. Easement of necessity arises only where, by a transfer, bequest or partition, a single tenement is divided into two or more tenements and any of those is to be situated that it cannot be enjoyed at all without certain privilege upon another such tenements. The creation of an easement of necessity is an outcome of the prior relationship between the tenements. [C] By quasi necessity, when there is a severance of two tenements (section 13) : The term quasi easement has been applied to those easements which are not easement of absolute necessity but which come into existence for the first time by presumed grant on severance of two or more tenement formerly united into the sole ownership of one person. Quasi easement must be (a) apparent (b) continuous and (c) necessary for enjoying the dominant heritage as it was enjoyed before severance. The quasi easement claimed must be in existence at the time when the severances took place. So that there may be possibility of an implied grant or an implied reservation. If they were not present at the time of severance but came into existence afterwards such right cannot be claimed as quasi easement under section 13. [D] By prescription (section 15) : Prescription means acquisition of a right or title by user of possession during the period and in the manner prescribed by law. A man who can not show any other title may acquire property or certain rights by showing that he has been in possession of the property or enjoying rights for a very long time. The reason why the law encourages this mode of acquiring right is that, if a man after long, continue and uninterpreted user was required in every case to prove the origin of his title especially in the old times, when writing was not in vogue it would result in great hardship and injustice to him. The reason why the law encourages this mode of acquiring right is that, if a man after long, continue and uninterpreted user was required in every case to prove the origin of his title especially in the old times, when writing was not in vogue it would result in great hardship and injustice to him. (A) Easementary right of way and other varieties of easement rights can be acquired if (a) they have been enjoyed, (b) as an easement (c) for twenty years, (d) without interruption by a person claiming title to them, (e) openly, (f) peaceably and (g) as of right. (B) Easementary rights of light, air and support can be acquired if they have been peaceably enjoyed, without interruption, as an easement, for twenty years. The rights of light, air and support need not be enjoyed either 'openly' or 'as of right' or 'by a person claiming title thereto'. Such easements can be acquired by peaceable enjoyment without its enjoyment being as of right. It is only in case of other easements, it is necessary to enjoy them as of right in order to acquire an absolute right in respect of them. All the above seven ingredients of an easementary right must be proved to have been present during the whole of the prescriptive period of 20 years. In case of easement against Government the statutory period is 30 years. [E] By lost grant, presumed from immemorial user : A right of easement is also created by grant. A grant of such right is presumed from long use or possession although the actual transaction of making such a grant cannot be discovered. If a party has been using a particular land for a particular purpose from time immemorial, it can be said that he has earned that right on the basis of doctrine of lost grant. There is no period fixed for the immemorial. [F] By customs (section 18) : A customary easement is not an easement in the true sense of that expression. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right prevent and continue to prevent something done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy. [G] By transfer : Section 19 lays down that a transfer or devolution of a property which may be due to act of parties or by operation of law, will convey the person in whose favour the transfer or devolution takes place all those easements which are annexed or are appurtenant to the heritage transferred, unless a contrary intention appears. If nothing is mentioned in the instrument of transfer, all easement enjoyed before the transfer will pass to the transferee and in this respect, this section enjoins upon the transferor to have the transfer-deed drafted very carefully to avoid future litigation. [H] By law/statue/legislature : certain laws/statute/ legislature has granted the easement. For e.g. Land Acquisitions (Mines) Act. [I] By the operation of the doctrine of acquiescence :Where the servient owner by active encouragement or passive acquiescence or other such conduct, has inducted a belief in the dominant owner upon which the dominant owner has acted, he would acquire an easement over the servient property. RIGHT TO ALTER MODE OF ENJOYMENT AND NECESSARY RIGHTS. Chapter III of the Indian Easements Act, contemplates the provisions regarding the incidents of easements. As per section 21 of the Act, an easement must not be used for any purpose not connected with the enjoyment of the dominant heritage. Illustration : A, as owner of a farm Y, has a right of way over B's land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z. 19. Illustration : A, as owner of a farm Y, has a right of way over B's land to Y. Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the easement for the purpose of passing to and from Z. 19. As per Section 22 of the Act, the dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. This section is divided into 2 parts. The first part prescribes the first mode in which the dominant owner must exercise his right and the second part puts limitation on the right of the dominant owner to exercise his right of easement on servient heritage. This section shows that the right of easement is not absolute. "Section 22. Exercise of easement: confinement of exercise of easement.- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be, confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner be so confined." Illustrations (a) A has a right of way over B's field, A must enter the way at either end and not at any intermediate point. (b) A has a right annexed to his house to cut thatching grass in B's swamp. A when exercising his easement must cut the grass so that the plants may not be destroyed. 20. Section 22 lays down that every easement right should be exercised in a way which is "least onerous to the servient owner. The least onerous mode of enjoyment of his right by the dominant owner is that which might be expected from the full owner of the servient tenement himself had he any occasion to enjoy the same right. The test of the conduct of the dominant owner is what a reasonable man would do under similar circumstances on his own land. The least onerous mode of enjoyment of his right by the dominant owner is that which might be expected from the full owner of the servient tenement himself had he any occasion to enjoy the same right. The test of the conduct of the dominant owner is what a reasonable man would do under similar circumstances on his own land. The reason for this rule is that an easement right imposes a burden on the servient heritage and it is but reasonable that the dominant owner must be enjoined not to increase the burden by indiscriminate use of the right. RIGHT TO ALTER MODE OF ENJOYMENT (SECTION-23) 21. Subject to the provisions of Section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. Exception The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage. The dominant owner has been given full discretion in the enjoyment of an easement. However, he cannot violate the provisions of Section 22 of the Easements Act. In a way, Section 22 constitute an exception of Section 23. Similarly, restriction is imposed upon the dominant owner that he cannot impose any additional burden on the servient heritage while enjoying his right of easement in any way he likes. Thus, sufficient checks and balances have been provided on the right of the dominant owner to exercise his right of the easement. As held by Hon'ble Apex Court in. If, by alteration of mode and place enjoying Anguri, Smt. V. Jiwan Dass, (1988) AIR SC 2024easement, there occurs increase in burden of easement on servient owner, Section 23 does not protect such situation. In other words, Section 23 would not come to help the plaintiff if the additional burden on the property of the plaintiffs has been imposed by the action of the defendants. ACCESSORY OR NATURAL RIGHTS 22. As per Section 24 of the Easements Act, rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights. The edifies of this principle must be understood to allow everything necessary to give effect to right. ACCESSORY OR NATURAL RIGHTS 22. As per Section 24 of the Easements Act, rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights. The edifies of this principle must be understood to allow everything necessary to give effect to right. These are the rights to do acts necessary to secure the full enjoyment of the principle easement. A golden mean has been achieved by this section in between the rights of the dominant owner and that of the servient owner in regard to easement. This section has given the vast powers to the dominant owner to do all acts necessary for the full enjoyment of easement. Full enjoyment implies beneficial enjoyment. This power, of course, can be exercised only against the servient owner and not against the world at large. An interest of the servient owner is also required to be protected. An obligation is cast upon the dominant owner to repair the damage, if any, caused by the act of the servient heritage. DUTIES AND LIABILITIES OF DOMINANT OWNER AND SERVIENT OWNER 23. As per Section 25 of the Act, the expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner. 24. As per Section 26 of the Act, where an easement is enjoyed by means of an artificial work, the dominant owner is liable to make compensation for any damage to the servient heritage arising from the want of repair of such work. 25. As per Section 27 of the Act, the servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient. 26. As per Section 29 of the Act, the dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement. 27. Disturbance to the right of enjoyment of easement and remedies thereon : Section 32. - The owner or occupier of the dominant heritage is to enjoy the easement without disturbance by any other person. 28. Disturbance means obstruction, interruption or disruptions. 27. Disturbance to the right of enjoyment of easement and remedies thereon : Section 32. - The owner or occupier of the dominant heritage is to enjoy the easement without disturbance by any other person. 28. Disturbance means obstruction, interruption or disruptions. Disturbance in relation to easement law means that any such act that lessen the practical utility of the enjoyment of the easement. Interference with the right of easement may be graded into three degrees. (1) Interference which does not result into substantial damage and which gives no cause of action. (2) Interference which may cause damage but where injunction can not give relief but only damages would be sufficient. (3) Interference where injunction is the proper remedy. Remedies on disturbance of Easementary Rights: 29. Under Sections 33 to 36 of the Easements Act, various remedies provided to dominant owner to protect his right of easement. 1. Suit for compensation Section 33 of the Act prescribe that the owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto: provided that the disturbance has actually caused substantial damage to the plaintiff. Meaning of substantial damage : 30. Under the explanation of Section 33, meaning of the substantive damage is prescribed. In the Explanation I of Section 33 it is clarified that the doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage. Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit, Where the easement disturbed is a right to the free passage of light to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health. Section 34 - When cause of action arises for removal of support. Section 34 - When cause of action arises for removal of support. The removal of the means of support to which a dominant owner is entitled does not give rise to a right to recover compensation unless and until substantial damage is actually sustained. 2. Suit for declaration and Injunction to restrain disturbance. The Supreme Court, in Ram Kanya Bai & Anr vs Jagdish & Ors [Civil Appeal No. 4922 of 2011, 4 July 2011], has held that when a person (dominant owner) has an easementary right and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over another's land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment. Section 35 Injunction to restrain disturbance : Subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (Sections 36 to 41 of the Specific Relief Act, 1963), an injunction may be granted to restrain the disturbance of an easement. (a) If the easement is actually disturbed then compensation for such disturbance might be recovered under this Chapter. (b) If the disturbance is only threatened or intended. When the act threatened or intended must necessarily, if performed, disturbs the easement. 3. The dominant owner can also file a suit for mandatory injunction to get executed his right of easement. Extinction of Easement : Section 37 When from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished. Section 38 An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. Section 39 An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement. Section 38 An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. Section 39 An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement. Section 40 An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or nonperformance of a specified act, and the period expires or the condition is fulfilled. Section 41 An easement of necessity is extinguished when the necessity comes to an end. Section 42 An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner. Section 43 Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished unless, (a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or (b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or (c) the easement is an easement of necessity. Section 44 An easement is extinguished where the servient heritage is by superior force permanently so altered that the dominant owner can no longer enjoy such easement: Section 45 An easement is extinguished when either the dominant or the servient heritage is completely destroyed. Section 46 An easement is extinguished when the same person becomes entitled to the absolute ownership; of the whole of the dominant and servient heritages. Section 47 A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years. Section 48 When an easement is extinguished, the rights (if any) accessory thereto are also extinguished. Revival of Easements. The general rule is stated that an easement once extinguished cannot be revived, and that if it is to exist again it must be created de novo. Section 48 When an easement is extinguished, the rights (if any) accessory thereto are also extinguished. Revival of Easements. The general rule is stated that an easement once extinguished cannot be revived, and that if it is to exist again it must be created de novo. Section 51 Revival of easements : An easement extinguished under Section 45 revives (a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvions; (b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and (c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage. An easement extinguished under Section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent court. A necessary easement extinguished under the same section revives when the unity of ownership ceases from any other cause. A suspended easement revives if the cause of suspension is removed before the right is extinguished under Section 47. 31. In the present case, there is no dispute with regard to the fact that the plaintiffs and their forefathers had been using the way passing through the Survey No.111 for the purpose of entering into their agricultural fields. The plaintiffs had to institute the suit for declaration and injunction as the defendants started creating obstruction. As the defendants started restraining the plaintiffs from using the road passing through the Survey No.111, the plaintiffs had to seek appropriate relief before the trial court. The trial court, as noted above, answered the first two issues in the affirmative, but later, took recourse of Section 22 of the Easements Act and held that as there is an alternative way available, the plaintiffs must use the less inconvenient way so far as the defendants are concerned. 32. The Supreme Court, in the case of Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545 , has clearly held that an easement by grant does not get extinguished even though another passage is available to the dominant owner. The Hon'ble Supreme Court in the above judgment has held as follows : "28. 32. The Supreme Court, in the case of Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545 , has clearly held that an easement by grant does not get extinguished even though another passage is available to the dominant owner. The Hon'ble Supreme Court in the above judgment has held as follows : "28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute. In fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13. 29. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13. 29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case." 33. In the judgment reported in the case of Ponnan v. Peraman, (2006) 5 CTC 573 , the Madras High Court has held as follows : "It has to be pointed out that the question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be expressed or even by necessary implication. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be expressed or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. " 34. Thus, once pathway was given as an easement by grant, it will not be extinguished even though the parties have got another way to reach the property. 35. I may also refer to and rely upon few old judgments on the issue. 36. In the case of Devraj Hira and Others v. Karson Nara,1953 AIR(Kutch) 33, a learned Single Judge of the Kutch High Court has observed in paragraph 6 as under : "6. The learned pleader for the applicants contended that under S.22, Indian Easements Act, applicants were entitled to demarcate a passage which was least onerous to them and that the opponent should enter their vadi from its northeast corner to go to his field. Illustration A to S.22 of the Act provides that if A had a right of way over B's field, A must enter the way at either end and not at any intermediate point. Similarly, where between two terminii, a way is not a demarcated one, the servient owner is entitled to demarcate it so as to be least onerous to him. But where, a defined way is claimed to have been acquired by express grant, the servient owner cannot compel the owner of the dominant tenement to accept a different way. Reason is that the provision of S.22 of the Act can apply, where exact way to be taken over the premises of the servient owner has not been ascertained vide - Dhundaraj Balkrishna v. Ramchandra Gangadhar, (1922) AIR Bombay 407. Reason is that the provision of S.22 of the Act can apply, where exact way to be taken over the premises of the servient owner has not been ascertained vide - Dhundaraj Balkrishna v. Ramchandra Gangadhar, (1922) AIR Bombay 407. In - 'Venkatarama Ayyar v. Rangaswamy Ayyar, (1943) AIR Madras 741', it was held that in case of an easement by grant, the servient owner was not entitled to substitute a new path way for the old one and to ask the dominant owner to take a substituted path. Mr. Joshi in his work on Easements and Licenses (2nd Edition) has remarked at page 179 that the servient owner has the option of confinement which be could exercise at the earliest opportunity after completion of prescriptive period. In case of an easement of a defined way acquired by grant, there is no question of exercising option of confinement." 37. In the case of Wasudeo v. Shankar, (1925) AIR Nagpur 168, the learned Judge has observed as under : "When once a right of way has been acquired, the servient owner cannot object to it on the ground of inconvenience, nor can he put an end to the right by showing that there is another path-way which the dominant owner might use Sham Bagdee v. Fukeer Chand (6 W.R. 223) and Mokoondonath v. Shib Chunder (22 W.R. 302). The right of easement of way is a right appurtenant to the dominant tenement of passage over a neighbour's land to and from the dominant tenement, it is not, a right to wander at pleasure, but a right to pass along a particular route from the terminus a quo to the terminus ad quern: Goluck Chunder v. Tarine Churn, (4 W.R. 49), and Wimbledon and Putney Commons Conservators v. Dixon, (45 L.J. Ch.353), quoted above. The question of the precise limit of the right in any particular case must depend upon the proof of the particular line between the termini over which the owner of the dominant tenement claims the right. "Compare Jibanand Chakarbarty v. Kalidas Malik, (1915) 42 ILR(Cal) 164", and Doorga Churn Dhur v. Rally Kumar Sen, (1881) 7 ILR(Cal) 145, where it is pointed out that the right extends to that portion of the centre of the road, which is necessary for the due exercise of the right of passage and that unreasonable contraction of width is not permissible. The servient owner has the right to set out the line of way to be followed by the dominant owner, and if he fails to set it out, the dominant owner must take the nearest way he, can. In any case the selection of the road must be such as a person of reasonable and ordinary skill and experience would make, and if the road has to be made it must be made in such a manner as a reasonable and prudent person would adopt if he were making a road over his own land. Absin v. Pentor, (1 B & C 195)." 38. In the case of Dhundiraj Balkrishna Phalnikar v. Ramchandra Gangadhar Kale and another, (1922) AIR Bombay 407, Chief Justice Macleod, in his separate judgment, has observed as under : "I do not think that Section 22 of the Indian Easements Act can assist the defendant. Its provisions can only apply when the exist way to be taken over the premises of the servient owner has not been ascertained. Whether the servient owner, when once the right of way has been defined, can substitute a new way is a question which does not seem to have been provided for by the Indian Easements Act and, therefore, we must have recourse to the Common Law: Lovell v. Smith,1857 3 CB(NS) 12O : 140 E.R. 685 : 111 R.R. 572, Hulbert v. Dale,1909 2 Ch 570 : 104 L.T. 504 : 78 L.J. Ch. 457. and Younj v. Kinloch, (19(SIC)0) A. C.169. No doubt the general rule is that a right of way once defined cannot be altered [Deacon v. The South Eastern Railway Company, 1889 64 LT 377] and the dominant owner is entitled to exert his strut rights unless ha can be induced to consent to a deviation. The defendant was aware of the existing right of way when be bought his premises and unless he can prove acquiescence in the new way the plaintiffs must succeed, The appeal must be dismissed with costs." 39. The defendant was aware of the existing right of way when be bought his premises and unless he can prove acquiescence in the new way the plaintiffs must succeed, The appeal must be dismissed with costs." 39. Justice Coyajee, in his separate but concurrent judgment, has observed as under : "I concur, and would add that Courts in this country have given effect to the general rule that when once the line of way has been definitely set out, neither the dominant nor the servient owner can compel the other to give or to accept a different and a substituted way In Syud Hamid Hossein v. Gervain 15 W.R. 496 Norman, C.J. observed : "We think it is clear that if any person has a right of way from one place to another over a particular line, if he and his ancestors have been accustomed to use that way from a long time past, he has a right to go over it, and cannot be compelled to use a different and substituted way." (Similarly, in Varajlal Parbhudas v. Moti Kuber, 1893 PJ 478, where the facts were not widely different from those in this case, this Court held that: "if the defendant's right of way was directly from the door in plaintiffs' osri to the defendant's osri, the plaintiff cannot obstruct that right of way and offer him another way through his chowk." In my opinion, therefore, the decision of the lower Appellate Court is right." 40. In the case of M.Venkatarama Ayyar v. A.Rangaswamy Ayyar, (1943) AIR Madras 741, a learned Single Judge has observed as under : "So far as the second point is concerned, I do not think it is open to the defendants to ask the plaintiff to accept a substituted plot to go to plot No. 4. This is a case of an easement by grant. As pointed out in Dhundiraj Balakrishna v. Ramachandra Gangadhar, (1922) 46 ILR(Bom) 910, there is no provision in the Easements Act enabling the servient owner to substitute a new pathway in place of the old one. This is a case of an easement by grant. As pointed out in Dhundiraj Balakrishna v. Ramachandra Gangadhar, (1922) 46 ILR(Bom) 910, there is no provision in the Easements Act enabling the servient owner to substitute a new pathway in place of the old one. Reference was also made there in to the decision in Deacon v. The South-Eastern Railway, Co,1889 61 LT 377 in which it was pointed out that a right of way once defined cannot be altered and that the dominant owner was entitled to exercise his strict rights unless he can be induced to consent to a way of deviation. The case in Selby v. Nettlefold, 1873 9 ChApp 111 cited for the appellant has no application to the facts of this case. There a party who had a right of way was using a deviation over the land of the servient owner when there was an obstruction and the question for consideration was whether the purchaser from the servient owner could obstruct the former from exercising his right to pass over the deviation. It was observed there that it will be open to him to substitute another deviation in the place of the deviation used by the plaintiff. That case therefore has no application to the facts of this case. The case reported in Nuddea Mills Co., Ltd. v. Sidheswar Chatterji, (1929) AIR Calcutta 33 relates to the case of a municipal highway. I therefore find that it is not open to the defendant to claim that he will be entitled to allot another pathway over another land of equal area in the place of his one." 41. I may also refer to and rely upon a decision of the Andhra Pradesh High Court in the case of Bandaru Venkayya and another v. Lakshmi Narasayya and another, (1957) AIR A.P. 975, wherein the learned Single Judge has observed as under : "6. The contention of the learned Advocate for the appellants that so long as the persons entitled to use a pathway are allowed to go through some other part of the defendants' lands, they have no grievance, is untenable. To establish a right of way across a land, it is necessary to prove that the way connects one particular point with another through a specified line. To establish a right of way across a land, it is necessary to prove that the way connects one particular point with another through a specified line. The right of way whether it is claimed by immemorial custom or by a lost grant, as in this case, must be confined substantially to the same route. A right of way necessarily imports a right of passing along a particular route or line between two termini. 7. It is on this footing that it has been held that a person having a private right of way should enter the way at one and the same place only and not at any other. The dominant owner or the owner exercising the right of way is not entitled to alter the points or the route as he pleases. Any other rule would mean that the entire land of the servient owner could be invaded by persons claiming to exercise their right of way over his land and the owner of the servient heritage might be practically deprived of the profitable use of the entire land through which the way runs. 8. From this it follows that if the right of way has been acquired from one point to another in a particular direction or according to a particular route, the servient owner cannot at his choice substitute another way between the same points by a different route which might be less convenient to the dominant owner. The right of way acquired whether it is by custom or by way of a lost grant or by way of prescription should be limited to the part of the area of the servient tenement over which it has been actually exercised. In Dhundiraj Balkrishna v. Ramachandra Gangadhar, (1922) AIR Bombay 407 ILR 46 Bom 910 (A), it was held by a Bench of the Bombay High Court that a line of way when definitely set out cannot be altered without the consent of the parties and that the provisions of S. 22 of the Indian Easements Act could apply only when the way to be taken over the premises of the servient owner had not been defined. 9. 9. The learned Judges held that S. 22 of the Easements Act could only apply where the exact way to be taken over the premises of the servient owner had not been ascertained did not provide an answer to the question whether the servient owner, when once the right of way has been defined, could substitute a new way. The learned Judges held that the dominant owner was entitled to his strict rights and a. right of way, when once defined, cannot be altered except with the consent of the dominant and the servient owners. 10. The defendants in the present case cannot compel the plaintiff to use a different and substituted way when the plaintiff and the other villagers have been from time immemorial exercising their right of way from one place to another over a particular route running through the defendant's land and indicated in the plaint plan. The decision in Lachmi Narain v. Ram Sarup, (1915) AIR Allahabad 312 13 All LJ 821 (B), cited by the learned advocate for the appellant has no bearing on the present question. All that Tudball, J., held in that case was that the right of a dominant owner to pass the water flowing naturally over his land across the land of a neighbouring lower owner is not interferred with if the latter diverts the direction of the route of the water in his own land." 42. Thus, the position of law seems to be quite clear. An easement can be acquired by the owner of the immovable property for the beneficial enjoyment of a right by any person in possession of the same. A right of easement is also granted by grant and a grant of such right is presumed from long use or possession although the actual transaction of making such a grant cannot be discovered. To put it in other words, if a party has been using a particular land for a particular purpose from time immemorial, it can be said that he has earned that right on the basis of doctrine of lost grant. There is no period fixed for the immemorial. It would depend on the facts of each case. The easement by grant does not get extinguished even though another passage is available to the dominant owner. 43. There is no period fixed for the immemorial. It would depend on the facts of each case. The easement by grant does not get extinguished even though another passage is available to the dominant owner. 43. In the overall view of the matter, I have reached to the conclusion that the lower appellate court committed no error in passing the impugned judgment and order. I see no good reason to disturb the judgment and order passed by the lower appellate court in this Second Appeal under Section 100 of the Code. The findings recorded by the lower appellate court, in my view, cannot be termed as perverse or erroneous in any manner so as to warrant any interference in a Second Appeal under Section 100 of the Code. 44. In the result, this Second Appeal fails and is hereby dismissed. As the main appeal is disposed of, the Civil Application also would not survive and the same is disposed of.

Gopalbhai Jikabhai Suvagiya v. Vinubhai Nathabhai Hirani