B. Prakash Rao, J.
1. The plaintiff is the appellant herein, who seeks to assail the judgment and decree dated 3.12.1991 passed in A.S. No. 108 of 1988 on the file of the in Additional District Judge, Visakhapatnam in allowing the appeal of the respondents-defendants as against the judgment and decree dated 24.3.1988 passed in O.S.No.485 of 1985 on the file of the IV Additional District Munsif, Visakhapatnam. In the suit, the plaintiff-appellant sought for declaration that he is the absolute owner of the area shown in stripes in the plaint plan measuring 50 sq.yds., and for consequential perpetual injunction restraining the defendants their men from interfering with the possession and enjoyment of the suit schedule property and further for mandatory injunction directing the defendants to remove all the escalated earth debris and building materials dumped by them on the sight. The case of the plaintiff in brief is that he is a purchaser in pursuance of a registered sale deed dated 21.3.1978 to an extent of 210 sq.yds. which is in possession and enjoyment thereof. However, the defendants are falsely claiming the suit path way and started making constructions thereon. Further, the defendants have their own individual path way through passage between their houses and immediately adjoining their house leading to the municipal road to the South. Therefore, there is no subsisting easementary rights now and any easementary rights which existed earlier, ceased. Hence, the suit. Contesting the suit claim, the defendants totally denied the claim of the plaintiff stating that he has absolutely no such rights. Further evidently the title deeds of the defendants clearly show that the defendants are having easementary rights over the passage. Therefore, the claim is wholly unsustainable. After framing of the issues, during the course of the trial, the plaintiff examined P.Ws.1 and 2 and marked Exs.A1 and A2. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 and B2, and Exs.X1 and X2 were marked. On a consideration of the evidence and material available on record, the Trial Court decreed the suit holding that the defendants have no easementary rights of necessity to go through the site of the plaintiff and they have got a substitute adjacent to their house which leads to the Eastern and Western roads of the municipality. In appeal filed by the respondents herein, the Court below on a consideration of submissions made on either side, restricted its consideration only to the documentary evidence excluding the oral evidence and held that there exists an easementary right in respect of the said passage and the same cannot be interfered with by the plaintiff and thus allowed the appeal dismissing the suit of the plaintiff.
2. Sri V. Parabramha Sastry, learned Counsel appearing for the appellant submits that the lower appellate Court while considering the question in issue as to the existence or non-existence of the easementary rights, has entirely excluded the oral evidence which is not correct more so when the case of the appellant is that even a right existed at any time earlier, the same has been extinguished in view of subsequent events and circumstances.
3. On the other hand, Sri C. Subba Rao, the learned Counsel appearing for the respondents submits that the lower appellate Court has rightly taken into consideration the positive material on record to show the existence of the easementary rights, the findings of which cannot be disturbed in the appeal.
4. Considering the submissions made on either side and on perusal of the record, an important question arises, whether the Court was right in excluding the oral evidence, while considering the aspect of extinguishments of an easementary right. The plaintiff's case exclusively rests on the fact that there is no such subsisting right of easement of passage and the defendants have got alternative passage directly leading to the municipality road. Therefore, any such prior easement cannot be taken into consideration in view of the changed circumstances. Thus, the defendants cannot make any construction and they have to be injuncted against. The defence in the suit was that in view of the conclusive piece of evidence as available on record especially Ex.B1, which amply shows the existence of passage, it cannot be disturbed. Thus, apparently is no serious dispute about the existence of the passage on earlier occasion. However, the case of the plaintiff is that the same has extinguished due to subsequent events. The Trial Court has considered the entire evidence both oral and documentary and came to the conclusion that the said passage and right of easement of the defendants ceased to existand they have no right as such. Whereas the lower appellate Court while considering the entire issue, excluded the oral evidence on the ground that the same is not of much consequence and stated that the entire case revolves round the interpretation of the documents filed by both the parties and ultimately by considering Exs.A1, B1 and B2 along with other documents, held that there existed a passage in width of five yards and it cannot be interfered with by the plaintiff. In this regard, it is relevant to note the provisions of Section 41 of the Indian Easements Act, 1882 which reads as follows:
'41. Extinction on termination of necessity:--An easement of necessity is extinguished when die necessity comes to an end.'
From the above Section, it is clear that mere existence of an easement itself is not enough but it also requires to be shown that the same is still subsisting and under use and enjoyment. The easement is not permanent and depends on various exigencies. Its necessity is sine qua non for an easement. Whereever such necessity diminishes, the easement also resides. In Venkatapathiraju v. Subbaraju, AIR 1930 Madras 789, the learned Single Judge held that easements of necessity are extinguished when necessity creating them ends and when once extinguished, dominant owner cannot revive them by his acts. In Chapsibhai Bhanjibhai Dand v. Purushottam, : AIR1971SC1878 , a Division Bench of the Apex Court held that to establish a prescriptive acquisition of a right one must prove that he was exercising that right on a property treating it as some one else's property. Thus from the above decisions, it is clear that it is not enough for the party claiming such right of easement to show the existence of easement, but necessarily it contemplates on his part to show that it has to be continued and its enjoyment is necessary on the relevant date. No doubt, the lower appellate Court has taken into consideration the documents of respondents and came to the conclusion that there existed such a passage. However, those documents are of anterior period and would not throw any light as such on the date of the suit. Necessarily, it follows that the entire other evidence as let in from both sides has to be looked into for the purpose of deciding as to the situation existed on the date of the suit. Therefore, the lower appellate Court was not right in totally excluding the other evidence rather than the documents as mentioned therein to consider the question in issue. In Shikharchand Jain v. Digamber Jain Piraband Karini Sabha, : [1974]3SCR101 , while considering the Section 100 of CPC, a Division Bench of the Apex Court held that the appellate Court was wholly wrong in discarding the khasra entries on the solitary statement in certain paragraph of the plaint and therefore the High Court could interfere with its finding in second appeal. Similarly, in Hira Lal v. Gajjan, AIR 1190 SC 723, a Division Bench of the Apex Court held that when first appellate Court discarded the evidence as inadmissible and High Court is satisfied that evidence was admissible that may introduce an error or defect in procedure, the High Court can arrive at its independent decision. In view of the same, the matter requires reconsideration on the entire evidence including oral. Thus the exclusion of the oral evidence by the lower appellate Court is not correct and therefore, the judgment and decree of the lower appellate Court requires to be set aside.
5. The second appeal is accordingly allowed and the matter is remitted back to the lower appellate Court for fresh consideration and disposal in accordance with law after giving due notice and opportunity to both sides. No costs.