ORDER : Whether a claim of easement of necessity is mutually incongruous or destructive with that of a claim of prescriptive right of easement or easement by grant and whether it is permissible to plead and raise it together are the questions came up for consideration. 2. The decisions rendered by this Court in (i).Joy Joseph and Others v. Jose Jacob alias Thankachan ( 2010 (4) KHC 167 ) (ii) Kochu Nadar v. Kunjan Nadar Gabriel (2011 SCC OnLine Ker 2674) (iii) Kallen Devi and others v. Kizhakkekoroth Raghavan ( 2012 (3) KLT 142 : 2012(2) KHC 443 ) (iv). Kamala Devi Amma and others v. Rajan and another ( 2017 (4) KLJ 700 : 2017 KHC 876 ) and (v). Lilly and others v. Wilson and others ( 2018 (1) KLT 772 : 2018(1) KHC 623 ) were relied on by the respondent in support of his argument that both are contradictory and mutually destructive and hence a claim based on easement of necessity and prescriptive right of easement cannot be maintained in a suit. 3. In Joy Joseph's case (supra), by differentiating the distinction between the easement of necessity and easement by prescription, it was held by this court that an easement of necessity and prescriptive right of easement cannot go together. 4. In Kallen devi's case (supra), it was again held by this Court in paragraph 14 that : “first of all, the plea of prescriptive right of easement and easement of necessity are contradictory and inconsistent in each other. Both cannot co-exist. Even assuming that the plaintiff is entitled to take inconsistent plea, at the time of evidence he has to elect from one among them i.e. the prescriptive right of easement or easement by necessity and he cannot go on with both the pleas which are in fact contradictory. In the case on hand, the plaintiff pressed both the grounds and failed to establish prescriptive right of easement.” 5. The said legal position was reiterated by another Bench of this Court in Ibrahimkutty v. Abdul Rahmankunju (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468 : ILR 1993(1) Ker.331 : AIR 1993 Ker.91) that: “the qualitative and quantitative requirement for the different kinds of easement are to a great extent mutually exclusive”. 6. The said legal position was reiterated by another Bench of this Court in Ibrahimkutty v. Abdul Rahmankunju (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468 : ILR 1993(1) Ker.331 : AIR 1993 Ker.91) that: “the qualitative and quantitative requirement for the different kinds of easement are to a great extent mutually exclusive”. 6. In Kamala Devi Amma's case (supra), this Court followed the legal proposition laid down in Joy Joseph's case (supra) and Kallen Devi's case (supra) and reiterated the legal position that “an easement of necessity and prescription will not go together and the plaintiff has to elect one among them in order to claim the relief”. 7. In Lilly's case (supra), this Court again summed up the legal position, thus : “14. A mistake commonly committed by the draftsmen is to plead both easement by prescription and easement of necessity together in respect of a way, forgetting the fact that they are mutually incongruous to one another and contradictory in nature. S.15 of the Act deals with easement by prescription..............” 17. It is therefor clear from the above principles that easement of necessity and easement by prescription cannot operate together in respect of any immovable property. This proposition has been settled in a number of decisions (see Mohammed v. Doomunhi Achari, 1987 KHC 649 : 1987(2) KLT 1037 : 1988(1) KLJ 442 :AIR 1988 Ker.298 : 1988(1) Cur.CC 486, Joy Joseph and others v. Jose Jacob alias Thankachan, 2010(4) KHC 167 and Kallen Devi v. Raghavan, 2012 (2) KHC 443 : 2012(3)KLT 142). Therefore, I have no hesitation to hold that claims based on easement by prescription and easement of necessity taken up together in the pleadings by the respondent are contradictory to one another and therefore the plaintiff should have opted to adhere to one at the time of adducing evidence.” 8. Easement of necessity is co-existent and co extensive incident which would arise on severance of tenements. It is an incident which would unlock a land lying locked by landed properties on all sides, by providing a means of access to it. Easement of necessity is co-existent and co extensive incident which would arise on severance of tenements. It is an incident which would unlock a land lying locked by landed properties on all sides, by providing a means of access to it. Easement of necessity and quasi easement are clubbed together in one provision i.e. in Section 13 of the Indian Easement Act, though they are dealt with separately under that provision, presumably on the reason that both are having statutory origin and recognition based on an existing right attached with the immovable property on its severance, either by partition, transfer inter vivos, bequest or by a decree of immovable property. An easement of necessity runs with the property like any other right appurtenant thereto and no express words are necessary for its conveyance or its reservation thereof. It would arise out of common ownership on severance of tenements, without which the property cannot be used at all. 9. Easement of necessity though would originate at the moment of severance of tenements, it would remain dormant until an absolute necessity arises. In other words, when there is severance of tenements, an easement of necessity would also originate as an incident to it, attached to the property severed. But it would remain dormant until an absolute necessity arises either at the time of severance of tenement or subsequent to it. To put it differently, when there is an alternative way, the incident of easement of necessity would remain dormant until an absolute necessity arises on termination or extinguishment of alternative way either by natural destruction or by decree of a Court. But that does not mean that the said right would originate only, on the happening of an absolute necessity. It is the absolute necessity that would make the legal incident active and enforceable. Till that time, the incident of easement of necessity would remain inert, inoperative and dormant. Once absolute necessity comes out, the incident of easement of necessity would become active and enforceable. Likewise, on termination of absolute necessity, it would acquire the character of dormancy and would remain inert and inactive till another contingency arises by way of absolute necessity. Till that time, the incident of easement of necessity would remain inert, inoperative and dormant. Once absolute necessity comes out, the incident of easement of necessity would become active and enforceable. Likewise, on termination of absolute necessity, it would acquire the character of dormancy and would remain inert and inactive till another contingency arises by way of absolute necessity. To put it short, easement of necessity is co-extensive with the land severed and would always run with the land as an incident and would remain dormant whenever there is an alternative way and would come into play whenever an absolute necessity comes out. It will not stand terminated or extinguished on establishment of an alternative way, but would remain inactive, inoperative so long as an alternative means of access available to the property. It would revive as and when an absolute necessity comes out due to the loss of way available or its permanent destruction. The peculiar nature of easement of necessity is to avoid non-availability of means of access to an immovable property. When there is no way available, virtually, the property would become incapable of enjoyment or to exercise any act of ownership over it. There lies the scope of an indefeasible incident annexed to the landed property as its integral part which would act as an alternative remedy when an absolute necessity comes out. It cannot be defeated or extinguished so long as, the tenements which were severed-dominant and servient, are in existence. It is not specified anywhere in the Indian Easement Act that an easement of necessity would remain inactive and inoperative when there is an alternative way and would revive when absolute necessity arises. But the very principle underlying easement of necessity giving rise an incident co-extensive with the land severed, on severance of tenements would show that it will not extinguish under Section 47 of the Indian Easement Act. Easement of necessity is a necessary easement, hence an exception to Section 47 of Indian Easement Act is drawn under clause (c) therein by the legislature. It is relevant to extract a passage from B.B Katiyar on law of easement and licences (page 872 in its 13th edition, page No.780 in its 15th edition) herein below: “An easement of necessity is co-existent and co-extensive with the necessity. It is relevant to extract a passage from B.B Katiyar on law of easement and licences (page 872 in its 13th edition, page No.780 in its 15th edition) herein below: “An easement of necessity is co-existent and co-extensive with the necessity. The dominant heritage may be so situated or so circumstanced that there may not arise an absolute necessity for a period of twenty years and still an enjoyment may become absolutely necessary after twenty years. For instance, a way constitutes a way of necessity to a certain close. The close remains unused by its owner for any purpose for twenty years or its owner acquires a lease of a neighbouring field for twenty years which gives him a more convenient way and hence, he does not use this way. If the rights were allowed to be extinguished under this section the close would have been rendered absolutely useless to the dominant owner and yet atleast in the second of the two cases without any fault of his. Hence, the exception in the case of easement of necessity. According to Section 47 of the Act there cannot be any extinction of easement, which has been used by way of necessity. There could not be any extinguishment of easement of necessity, merely because of the reason of non-mention of the same in the documents or an omission made. (R.Prabakaran v. Ambujathammal 2004 (3) LW 240 )” 10. This would make the legal position crystal clear that a co-extensive and co-existent incident -the easement of necessity will not extinct or extinguish except under Sections 44, 45 and 46 of the Indian Easement Act due to either by natural destruction of any of the tenements, permanent alteration of servient heritage by superior force or by permanent change of dominant heritage materially increasing the burden on the servient tenement. Section 41 of the Indian Easement Act which deals with extinction on termination of necessity, hence, should be understood not as a permanent extinction, but capable of revival when contingency arises necessitating a means of access as an absolute necessity either due to the total destruction of servient heritage or loss of available way under Sections 44, 45 and 46 of the Indian Easement Act. 11. In Sree Swayam Prakash Ashramam and Ors. v. G.Anandavally Amma and Ors. 11. In Sree Swayam Prakash Ashramam and Ors. v. G.Anandavally Amma and Ors. (MANU/SC/0010/2010), both the claim of easement of necessity and easement of grant came up for consideration by way of a suit for declaration of easement of necessity or of grant and a permanent prohibitory injunction. The trial court found entitlement of an implied grant as well as easement of necessity and a relief of declaration and injunction was granted as prayed for. But in appeal, the claim based on easement of necessity was rejected by the first appellate court on a finding that the plaintiff is having an alternative pathway and concurred with the finding of the trial court regarding the question of easement by grant. The High Court on consideration of the contentions, held that “though the claim of right of easement by way of necessity over 'B' schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over 'B' schedule property stood unaffected by the said conduct”. The Apex Court on hearing the learned senior counsel for the appellant Mr.T.L.Viswanatha Iyer and the learned counsel for the respondent Mr.Subramaniam Prasad accepted the finding of the High Court regarding existence of implied grant and found that it would not be necessary to deal with the decision on the easement of necessity which necessarily involves an absolute necessity. The embargo, if any in maintaining a suit for easement by grant or implied grant along with a relief of easement of necessity or inconsistency in maintaining both the claims at the same time were not taken up, though the ingredients which would constitute these two are different and cannot reconcile themselves, presumably on the reason that there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity. 12. In yet another case Madai Lakshmi Alias M.Rajalakshmi v. P.M.Partha Kumar [ (2000) 9 SCC 524 ], the question of easement of necessity and acquisition of prescriptive right of easement were taken together, but the suit was ultimately dismissed by the Apex Court, wherein also the question of mutual destruction was not taken up. 13. 12. In yet another case Madai Lakshmi Alias M.Rajalakshmi v. P.M.Partha Kumar [ (2000) 9 SCC 524 ], the question of easement of necessity and acquisition of prescriptive right of easement were taken together, but the suit was ultimately dismissed by the Apex Court, wherein also the question of mutual destruction was not taken up. 13. The peculiar nature of easement of necessity as an indefeasible co-extensive right can also be gathered from the rationale applied by a three Judge Bench of the Apex Court in Collector of Bombay v. Nusserwanji Rattanaji Mistri [ AIR 1955 SC 298 ], wherein the impact of Section 16 of the Land Acquisition Act on easement of necessity was considered and held that “under Section 16, when the Collector makes an award, he may take possession of the land which shall thereupon vest absolutely in the government free from all encumbrances. The word 'encumbrance' in this section can only mean interests in respect of which compensation was made under Section 11 or could have been claimed.” On such interpretation it was further held that the land so acquired by the government is burdened with easement of necessity. In other words the easement of necessity does not stand extinguished. The above principle of law was affirmed by the Supreme Court in H.P. State Electricity Board v. Shiv K. Sharma [ AIR 2005 SC 954 = 2005 (2) KLT 798 (SC)]. The Supreme Court further pointed out that it is difficult for them to read the judgment of the Bench of two Hon'ble Judges of Supreme Court in State of Himachal Pradesh v. Tarsem Singh [ (2001) 8 SCC 104 = AIR 2001 SC 3431 ] holding that the phrase “free from encumbrances” used in Section 16 of the Act is wholly unqualified and would include in its compass every right including an easementary right which affects the land. Further, it was observed that the said view is contrary to and different from the law laid down by a larger Bench in Collector of Bombay v. Nusserwanji Rattanji Mistri (supra). 14. It is quite permissible to plead and raise an alternative remedy along with the main relief sought. By its nature, an easement of necessity would always stand as an alternative remedy in the absence of a means of access to the dominant tenement. 14. It is quite permissible to plead and raise an alternative remedy along with the main relief sought. By its nature, an easement of necessity would always stand as an alternative remedy in the absence of a means of access to the dominant tenement. In short, the incident of easement of necessity is not contemporaneous with that of an easement by grant or easement by prescription, but would act as an alternative easement when absolute necessity comes out in the event of rejection of claim of prescriptive easement, easement by grant or easement by lost grant etc. There cannot be a simultaneous granting of an easement of necessity along with easement of prescription or easement of grant. But that does not mean that the alternative easement, i.e. easement of necessity, cannot be raised along with an easement of prescription or easement of grant. When there is simultaneous claim, the court has to consider the entitlement of prescriptive easement or easement by grant, as the case may be, at first. When it was found against, the alternative easement -easement of necessity and its entitlement, would arise and come into play. 15. Prima facie, it appears that the principle underlying the nature of easement of necessity being an inseparable incident attached to the land on severance of tenement and its dormancy when there is alternative means of access and its inertia till an absolute necessity comes out and its availability as an alternative relief not seen considered by this Court in (1). Joy Joseph and Others v. Jose Jacob alias Thankachan ( 2010 (4) KHC 167 ) (2) Kochu Nadar v. Kunjan Nadar Gabriel (2011 SCC OnLine Ker 2674) (3) Kallen Devi and others v. Kizhakkekoroth Raghavan ( 2012 (3) KLT 142 : 2012(2) KHC 443 ) (4).Kamala Devi Amma and others v. Rajan and another ( 2017 (4) KLJ 700 : 2017 KHC 876 ) and (5). Lilly and others v. Wilson and others ( 2018 (1) KLT 772 : 2018(1) KHC 623 ). Hence it requires consideration by a larger Bench. Place the matter before the Honourable The Chief Justice for appropriate orders.