THE INDIAN EASEMENTS ACT,
1882
Adv. Manu Krishna S.K
Mob-9995400709
Introduction
The origins of easements trace back to
ancient times, paralleling the development
of property rights. Across various legal
systems, these rights have been
acknowledged and regulated. In Roman
law, they were termed "servitudes,"
denoting restricted use of land without
ownership, such as a right of way. English
law categorizes easements into
appurtenant and in gross, where the former
benefits a specific property while the latter
is vested in an individual irrespective of
property ownership.
In India, under British rule, English
law principles governed easements,
recognized as just and fair. The Limitation
Act IX of 1871 was the first Indian
legislation to expressly acknowledge
easements. Subsequently, the Indian
Easements Act of 1882 was enacted,
initially applicable to certain regions and
later extended. This Act provides a
comprehensive framework for easements
in India, drawing heavily from English
law. Throughout history, easements have
been recognized and regulated, evolving
alongside property laws.
In India a rough draft of an Easement
Bill was circulated in February, 1878 to
the Local Governments for opinion. The
Bill was then revised due to criticism, and
on 11th February, 1879, it was submitted to
the Law Commission.
The object behind the Bill was to form
part of the Indian Civil Code, and it was
an attempt to state, clearly and compactly,
the rules relating to easement, i.e. the
rights which a person has over one piece
of immovable property by reason of his
ownership of another.
The Bill was divided into 6 Chapters:
(i) 1st Chapter deals with easement in
general and includes its definition framed
as to exclude all rights in gross, i.e., those
which are not annexed to the ownership of
immovable property.
(ii) 2nd Chapter deals with imposition,
acquisition and transfer of easement.
(iii) 3rd Chapter deals with the user, extent
and incidents of easement.
(iv) 4th Chapter deals with disturbance of
easement after describing the general right
to undisturbed enjoyment, proceeds to
provide that the owner of any interest in
the dominant heritage, or the occupier of
the heritage, may sue for a disturbance if it
has caused him substantial damage.
(v) 5th Chapter deals with the extinction,
suspension and revival of easement.
(vi) 6th Chapter deals with conferring of
licences.
The Easement Bill received assent on
17th February, 1882 and it came into force
on 1st July, 1882 as The Indian Easements
Act, 1882.
1
The intend behind the Act was
to define and amend the Law relating to
Easements and Licences.
1
Act 5 of 1882.
EASEMENT
Definition
S. 4 of the Act defines an
‘easement’ as 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. It
is a right in re aliena i.e. a right of a
person over another’s land. It is known as
servitude in Roman Law.
CHARACTERISTICS:
A. Appurtenance:
Appurtenance means the right of the owner to possess the property
and enjoy it. The easements are annexed to the ownership of some land. (It
is for the beneficial enjoyment of the dominant land).
B. Right in Re-aliena:
An easement is a right in re-aliena. It is the right over the property of
another person. It differs from a right in re-propria, which is the right over
one's own property. The person having the right of easement is called
dominant owner and the properties are dominant properties. The person who
allows such easementary right is called the Servient owner and the properties
are called the Servient properties.
In Flawap vs. Metropolitan Railway Company Case Justice Feasher
has held that the easementary right is the extension of the right of ownership.
C. Beneficial to the Dominant Property:
The easementary right is authorised for the beneficial enjoyment of
the
dominant property. Prof. Gael observes that beneficial enjoyment of the
dominant property is an essential requirement of easement.
D. Dominant and Servient Heritage:
The land for which the beneficial enjoyment of right exists is called
the dominant heritage. The owner or occupier of such dominant heritage is
called the dominant owner. The land on which the liability for the beneficial
enjoyment of the dominant heritage is imposed, is called Servient heritage.
The owner or occupier of such servient heritage is called Servient owner.
The
term "land" includes all things permanently attached to the earth also.
The term "Beneficial enjoyment" includes all possible convenience, remote
advantage and even a mere facility.
In
Sri Venkateshwara Swamy Rao Devesthanam vs. Vedanda
Kanakalakshmi the Supreme Court held that it is necessary that the owners
o
f
servient heritage and dominant heritage must be different. In other words
a owner cannot acquire easementary right over his own property.
In Yohannan Samuel v. Mathew John
2
, the Court considered the
aspect of easement and found that an easement belongs to a determinate
person in respect of his land. It is an accommodation over the land of
another restricting the use of the servient tenement to that extent, without
otherwise affecting the possession or title of the servient owner.
2
1991 (1) KLJ 605.
In Manikkam v. Kamala
3
, the Court
held that the owner of the trees acquired
no right over the land of the neighbour
simply because the branches of his trees
extended over the neighbouring soil for
any continuous length of time.
In Mohammed v. Doomunhi Achari
4
,
the Court held that existence of servient
tenement and dominant tenement are
essentials for the creation and existence of
an easement. It was further held that when
two tenements are in the ownership and
possession of the same person, acts done
by him on one tenement cannot create an
easement.
Dominant and Servient Heritages
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.
3
A I R 1987 Ker 72
4
1987 (2) KLT 1037.
The expression “land” in this context
also includes things permanently attached
to the earth; the expression “beneficial
enjoyment’ includes also possible
convenience, remote advantage, and even
a there amenity; and the expression “to do
something” includes removal and
appropriation by the dominant owner, for
the beneficial enjoyment of the dominant
heritage, or any part of the soil of the
servant heritage, or anything growing or
subsisting thereon.
5
Illustrations
In the following cases, Easement right
exists:
(i) A, as the owner of a certain house, has
the right to conduct water from B’s stream
to supply the fountain in the garden
attached to the house. This is an
easement.
(ii) A, as the owner of a certain house, has
the right to go on his neighbour B’s land
5
Explanation to S. 4
and to take water for the purposes of his
household, out of a spring therein. This is
an easement.
(iii) A, as the owner of a certain house, has
a right of way thither over his neighbour
B’s land for purposes connected with the
beneficial enjoyment of the house. This is
an easement.
(iv) A, as the owner of a certain house and
farm, has the right to graze a certain
number of his own cattle on B’s field, or
to take, for the purpose of being used in
the house, by himself. his family, guests,
lodgers and servants, water or fish out of
C’s tank, or timber out of D’s wood. or to
use, for the purpose of manuring his land,
the leaves which have fallen from the trees
in E’s land. These are easements.
(v) A is bound to cleanse a watercourse
running through his land and kept it free
from obstruction for the benefit of B, a
lower riparian owner. This is not
easement.
(vi) A dedicates to the public the right to
occupy the surface of certain land for the
purpose of passing and re-passing. This
right is not an easement.
In the following cases, Easement right
does not exist:
(i) A dedicates to the public the right to occupy the surface of certain and for
the purpose of passing and re-passing. This right is not an easement.
(b) A is bound to cleanse a water course running through his land and
keep it free from obstruction for the benefit of B’s land. This is not an
easement.
DIFFERENCE BETWEEN LICENCE AND EASEMENT:
Licence
1. A licence is a right to do some positive action on the immovable property
of another. So licence is always positive.
Easement
1. Easement is a right to prevent the (servient) owner of immovable
property from doing something, against the dominant owner.
2. An easement is a right in rem available against the whole world.
3. Easement has always an appurtenance.
- A licence is a personal right.
A licence is not appurtenant any land.
4. Licence is not assignable.
Easement runs with the land and so assignable.
5. Easement cannot be revoked by the servient owner.
6. Easement is enforceable by all the persons in occupation of the dominant
properties,
7. Licence is generally revocable by the grantor of the licence.
8. A licencee cannot maintain action in his own name against
a stranger but
can sue only in
the licensor's name
9. A licence can be created only by grant.
Easement is created by grant, custom, prescription, etc.
DIFFERENCE BETWEEN EASEMENT AND LEASE
Easement Lease
1.Easement is a right of the owner 1. A lease is a transfer of right
or occupier of certain land on to enjoy the property of
another's land for the beneficial another.
enjoyment of his own land.
2.There is no consideration rent or premium. 2. There is consideration like
rent (money, crop etc.) or premium.
3. The relationship is of the dominant owner and the servient owner. 3. The
relationship is of the lessor and the lessee,
Transfer of Dominant Heritage Passes
Easement
S. 19 provides that where the
dominant heritage is transferred or
devolves, by act of parties or by operation
of law, the transfer or revolution shall,
unless a contrary intention appears, be
deemed to pass the easement to the person
in whose favour the transfer or devolution
takes place.
Illustration
A has certain land to which a
right of way is annexed. A lets the land to
B for twenty years. The right of way vests
in B and his legal representatives so long
as the lease continues.
Types of Easement
S. 5 deals with the different
types of easement. Easements are either
continuous or discontinuous, apparent or
non-apparent.
1) Continuous Easement
A continuous easement is one
whose enjoyment is or may be continual
without the act of man.
Illustration
A right annexed to B’s house to
receive light by the window without
obstruction by his neighbour A. This is a
continuous easement.
2) Discontinuous Easement
A discontinuous easement is
one that needs the act of man for its
enjoyment. Eg; A right of way annexed to
A’s house over B’s land. This is a
discontinuous easement.
3) Apparent Easement
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.
Illustration
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.
4) Non-Apparent Easement
A non-apparent easement is one that
has no such sign.
Illustration
A right annexed to A’s house to prevent B
from building oil his own land. This is a
non-apparent easement.
5) Easement for Limited Time or on
Condition
An easement may be permanent,
or for a term of years or other limited
period, or subject to periodical
interruption, or exercisable only at a
certain place, or at certain times, or
between certain hours, or for a particular
purpose, or on condition that it shall
commerce or become void or voidable on
the happening of a specified event or the
performance or nonperformance of a
specified Act.
6
6) Easements of Necessity and Quasi-
Easements
S. 13 of the Act deals with such kind
of easement where one person transfers or
6
S. 6.
bequeaths immovable property to another.
Illustrations
(a) If an easement in the subject of the
transfer or bequest is necessary for
enjoying other immovable property of the
transferor or testator, the transferor or the
legal representative of the testator shall be
entitled to such easement.
(b) If an easement in other immovable
property of the transferor or testator is
necessary for enjoying the subject of the
transfer or bequest, the transferee or
legatee shall be entitled to such easement.
(c) If an easement over the share of one of
them is necessary for enjoying the share of
another of them, the latter shall be entire
to such easement.
7) Customary Easements
An easement acquired in virtue
of a local custom are called customary
easements.
7
Illustrations
7
S. 18.
(a) By the custom of a certain
village every cultivator of village land is
entitled, as such, to graze his cattle on the
common pasture. A having become the
tenant of a plot of uncultivated land in the
village breaks up and cultivates that plot
he thereby acquires an easement to graze
his cattle in accordance with the custom.
(b) By the custom of a certain
town no owner or occupier of a house can
open a new window therein so as
substantially to invade his neighbor’s
privacy. A builds a house in the town near
B’s house. A thereupon acquires an
easement that B shall not open new
windows in his house so as to command a
view of the portions of A’s house which
are ordinarily excluded from observation,
and B requires a like easement with
respect to A’s house.
In Parbhawati Devi v. Mahendra
Singh
8
, the court stated that the customary
easements should be distinguished from
the customary rights referred to in section
8
A I R 1981 Pat 133.
2(b) of the Act. The latter are rights arising
by custom but unappurtenant to a
dominant tenement. No fixed period of
enjoyment is necessary to establish these
rights, but the custom must be reasonable
and certain.
Restriction over Rights of Owner
Easement imposes restrictions
over one or more of the following rights:
(a) Exclusive right to enjoy: The exclusive
right of every owner of immovable
property (subject to any law for the time
being in force) to enjoy and dispose of the
same and all products thereof and
accessions thereto.
9
In K.Panduranga Nayak v. Smt.
Jayashree
10
, the court stated that it is well
recognized principle that unless
easementary rights to light and air are
obstructed, the adjacent other has a right
to put up his own wall at the boundary of
9
S. 7.
10
A I R 1990 Kan 236
his property and the owner of the other
adjacent property can have no grievance
against the same.
(b) Rights to advantages arising from
situation: The right of every owner of
immovable property (subject to any law
for the time being in force) to enjoy
without disturbance by another the natural
advantages arising from its situation.
11
Illustrations
(i) The right of every owner of upper land
that water naturally rising in, or falling on
such land, and not passing in defined
channels, shall be allowed by the owner of
adjacent lower land to run naturally
thereto.
(ii) The right of every owner of land to
collect and dispose within his own limits
of all water under the land which does not
pass in a defined channel and all water on
its surface which does not pass in a
defined channel.
11
S. 7.
(iii) The right of every owner of land that
the air passing thereto shall not be
unreasonably polluted by other persons.
(iv) The right of every owner of land to so
much light and air as pass vertically
thereto.
(v) The right of every owner of a house
that his physical comfort shall not be
interfered with materially and
unreasonable by noise or vibration caused
by any other person.
(vi) The exclusive right of every owner of
land in a town to build on such land,
subject to any municipal law for the time
being in force.
(vii) The right of every owner of land
abutting on a natural stream, lake or pond
to use and consume its water for drinking,
household purpose and watering his cattle
and sheep: and tire right of every such
owner to use and consume the water for
irrigating such land, and for the purposes
of any manufactory situate thereon,
provided that he does not thereby cause
material injury to other like owners.
(viii) The right of every owner of land that
the water of every natural stream which
passes by through or over his land in a
defined natural channel shall be allowed
by other persons to flow within such
owner’s limits without interruption and
without material attention in quantity,
direction. force or temperature; the right of
every owner of land abutting on a natural
lake or pond into or out of which a natural
stream flows, that the water of such lake
or pond shall be allowed by other persons
to remain within such owner’s limits
without material alteration in quantity or
temperature.
(ix) The right of every owner of land that,
within his own limits the water which
naturally passes or percolates by, over or
through his land shall not before so
passing or percolating, be unreasonably
polluted by other persons.
Rules Relating to the Imposition,
Acquisition and Transfer of Easements
Chapter 2, Ss. 8 to 19 deals with the
rules relating to the imposition, acquisition
and transfer of easements
Persons Eligible to Impose Easement
1) Any person:
As a general rule S. 8 provides
that an easement may be imposed by any
one 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 imposed.
Eg;
(i) A, B and C are co-owners of certain
land. A cannot, without the consent of B
and C, impose an easement on the land or
on any part thereof.
(ii) A is tenant of B’s land under a lease
for air unexpired term of twenty years, and
has power to transfer his interest under the
lease. A may impose an easement on the
land to continue during the time that the
lease exists or for any shorter period.
(iii) A and B are lessees of the same
lessor, A of a field X for a term of five
years and B of field Y for a term of ten
years. A’s interest under his lease is
transferable; B’s is not. A may impose on
X, in favour of B, a right of way
terminable with A’s lease.
(iv) A is tenant for his life to certain land
with remainder to B absolutely, A cannot
unless with B’s consent, impose an
easement thereon which will continue
after the determination of his life interest.
2) Servient Owners:
Subject to the provisions of
Section 8, a servient owner may impose
on the servient heritage any easement that
does not lessen the utility of the existing
easement. But he cannot, without the
consent of the dominant owner, impose an
easement on the servient heritage which
would lessen such utility.
12
Illustrations
12
S. 9
(i) A has, in respect of his house, a right of
way over B’s land. B may grant to C as
the owner of a neighboring farm, the right
to feed his Cattle on the grass growing on
the way provided that A’s right of way is
not thereby obstructed.
(ii) A has, in respect of his mill, a right to
the uninterrupted flow thereto, from
sunrise to noon, of the water of B’s
stream. B may grant to C the right to
divert the water of the stream from noon
to sunsets, provided that A’s supply is not
thereby diminished.
3) Lessor and Mortgagor
Subject to the provisions of
Section 8, a lessor may impose, on the
property leased, any easement that does
not derogate from the rights of the lessee
as such, and a mortgagor may impose, on
the property mortgaged, any easement that
does not render the security insufficient.
But a lessor or mortgagor cannot, without
the consent of the lessee or mortgages,
impose any other easement and such
property, unless it be to take effect on the
termination of the lease or the redemption
of the mortgage.
13
A security is insufficient within the
meaning of this section unless the value of
the mortgaged property exceeds by one-
third, or, if consisting of building exceeds
by one-half, the amount for the time being
due on the mortgage.
14
4) Lessee:
No lessee or other person having
a derivative interest may impose on the
property held by him as such an easement
to take effect after the expiration of’ his
own interest, or in derogation of the right
of the right of the lessor or the superior
proprietor.
15
Acquiring of Easements
By virtue of S. 12 An easement
may be acquired by the following persons:
1) Owner of an Immovable Property
13
S. 10.
14
Explanation to S 10.
15
S. 11.
An easement may be acquired by
an owner of the immovable property for
the beneficial enjoyment of which the
right is created, or on his behalf, by any
person in possession of the same. No
lessee of immovable property can acquire,
for the beneficial enjoyment of other
immovable property of his own, an
easement in or the property comprised in
his lease.
2) One of Two or More Co-Owners
An easement may be acquired by one
among two or more co-owners of
immovable property may, as such, with or
without the consent of the other or others,
acquire an easement for the beneficial
enjoyment of such property.
In Nathu Lal v. Ram Swaroop
16
, the
court held that a right of easement is also
created by grant and a grant of such right
is presumed from long use or possession
although the actual transaction of making
such a grant can not be discovered. If a
party has been using a particular land for
16
A I R 1987 Raj 169
a particular purpose from time
immemorial, it can be said that he has
earned that right on the basis of doctrine
of lost grant.
Easements of Necessity and Quasi-
Easements
S. 13 provides that where one
person transfers or bequeaths immovable
property to another-
(a) If an easement in other immovable
property of the transferor or testator is
necessary for enjoying the subject of the
transfer or bequest, the transferee or
legatee shall be entitled to such easement;
or
(b) If such an easement is apparent and
continuous and necessary for enjoying: the
said subject as it was enjoyed when the
transfer or bequest took effect, the
transferee or lessee shall, unless a different
intention is expressed or necessarily
implied, be entitled to such easement:
(c) If an easement in the subject of the
transfer or bequest is necessary for
enjoying other immovable property of the
transferor or testator, the transferor or the
legal representative of the testator shall be
entitled to such easement; or
Where a partition is made of the joint
property of several persons, -
(d) If such an easement is apparent and
continuous and necessary for enjoying the
said property as it was enjoyed when the
transfer or bequest took effect, the
transferor, or the legal representative of
the testator, shall, unless a different
intention is expressed or necessarily
implied be entitled to such easement.
Where a partition is made of the joint
property of several persons, -
(e) If an easement over the share of one of
them is necessary for enjoying the share of
another of them, the latter shall be entire
to such easement, or
(f) If such an easement is apparent and
continuous and necessary for enjoying the
share of the latter as it was enjoyed when
the partition took effect, he shall, unless
the different intention is expressed or
necessary implied, be entitled to such
easement.
The easements mentioned in this section,
clauses (a), (c) and (e), are called
easement of necessity.
Where immovable property passed by
operation of law, the persons from and to
whom it so passes are, for the purpose of
this section, to be deemed respectively, the
transferor and transferee.
Illustrations
(i) A is the owner of a house and
adjoining land. The house has windows
overlooking the land. A simultaneously
sells the house to B and the land to C. The
light passing over the land is necessary for
enjoying the house as it was enjoyed when
the sale took effect. Here A impliedly
grants B a right to the light, aid C takes the
land subject to the restriction that he may
not build so as to obstruct such right.
(ii) A sells B a field then used for
agricultural purposes only. it is
inaccessible except by passing over A’s
adjoining land or by trespassing on the
land of a stranger. B is entitled to a right
of way, for agricultural purposes only,
over A’s adjoining land to the field sold.
(iii) A sells B a house with windows
overlooking A’s land. The right passing
over A’s land to the windows is necessary
for enjoying the house as it was enjoyed
when the sale took effect. Afterwards A
sells the land to C. Here C cannot obstruct
the light by building on the land for takes
it subject to the burdens to which it was
subject in A’s hands.
(iv) A sells B a house with windows
overlooking A ‘s land which A retains.
The right which passes over A’s land to
the windows is necessary for enjoying the
house as it was enjoyed when the sale took
effect. B is entitled to the light, and A
cannot afterwards obstruct it by building
on his land.
(v) A, the owner of two fields, sells one to
B, and retains the other. The field retained
was, at the date of the sale, used for
agricultural purposes only, and is
inaccessible except by passing over the
field sole to B. A is entitled to a right of
way, for agricultural purposes only, over
B’s field to the field retained.
(vi) A, the owner of a house, sells B a
factory built on adjoining land. B is
entitled, as against A, to pollute the air,
when necessary, with smoke and vapours
from the factory,
(vii) Under the Land Acquisition Act,
1870, a Railway Company compulsorily
acquires a portion of B’s land for the
purpose of making a siding. The
Company is entitled to such amount of
lateral support from B’s adjoining land as
is essential for the safety of the siding.
(viii) A, the owner of two adjoining
houses, Y and 4 sells Y to B, and retains
Z. B is entitled to the benefit of all gutters
and drains common to the two houses and
necessary for enjoying Y as it was enjoyed
when the sale took effect, and A is entitled
to the benefit of all the gutters and drains
common to the two houses and necessary
for enjoying Z as it was enjoyed when the
sale took effect.
(ix) A, the owner of two adjoining
building, sells one to B, retaining the
other. B is entitled to 4 right to lateral
support from A’s building, and A is
entitled to a right to lateral support from in
B’s building.
(x) A is the owner of a house and
adjoining land. The house has windows
overlooking the land. A, retaining the
house sells the land to B, without
expressly reserving any easement. The
light passing over the land is necessary for
enjoying the house as it was enjoyed when
the sale took effect. A is entitled to the
light and B cannot build on the land so as
to obstruct such light.
(xi) A grants lands to B for the purpose of
building a house thereon. B is entitled to
such amount of lateral and subjacent
support from A’s land as is necessary for
the safety of the house.
(xii) A, the owner of two adjoining
building, sells one to B, and the other to C.
C is entitled to lateral support from B’s
building, and B is entitled to lateral
support from C’s building.
(xiii) A lets a house and grounds to B for
a particular business. B has no access in
them other than by crossing A’s land. B is
entitled to a right of way over that land
suitable to the business to be carried on by
B in the house and grounds.
(xiv) Owing to the partition of joint
property, A becomes the owner of an
upper room in a building, and B becomes
the owner of the portion of the building
immediately beneath it. A is entitled to
such amount of vertical support from B’s
portion as- is essential for the safety of the
upper room.
In Smt. Pravabati Roy v.
D.L.Sengupta
17
, the court held that for the
purpose of deciding the case of easement
of necessity, it is sufficient if a party
claiming easement of necessity can
establish that for effective user of a
property in the ordinary way for its
designed purpose the right of easement
over a particular passage is essentially
necessary. The court also observed that it
should take a pragmatic view of the fact
and circumstances and find out whether
the property in question cannot ordinarily
be effectively used without taking
recourse to right of easement on some
other’s property.
Direction of way of necessity
17
A I R 1987 Cal 97
By virtue of S. 14 when a right
to a way of necessity is created under
Section 13, the transferor, the legal
representative of the testator, or the owner
of the share over which the right is
exercised, as the case may be, is entitled to
set out the way but it must be reasonably
convenient for the dominant owner. When
the person so entitled to set out the way
refuses or neglects to do so, the dominant
owner may set it out.
Acquisition of Easement- (Acquisition by
Prescription).
Easements acquired under
Section 15 are said to be acquired by
prescription, and are called prescriptive
rights.
18
S.15 provides that the right, to
such access and use of light or air,
support, or other easement can be acquired
by prescription and such right shall be
absolute. The rules regarding such
acquisition are as follows:
18
S. 17.
1) Enjoyed Peaceably.
The right should be enjoyed peacefully.
Explanation I to S. 15 states that nothing is
an enjoyment within the meaning of S. 15,
when it has been had in pursuance of an
agreement with the owner or occupier of
the property over which the right is
claimed, and it is apparent from the
agreement that such right has not been
granted as an easement, or, if granted as
an easement, that it has been granted for a
limited period, or subject to a condition on
the fulfilment of which it is to cease.
2) Without Interruption.
The right shall be without
interruptions. It Nothing is an interruption
within the meaning of S. 15, unless where
there is an actual cessation of the
enjoyment by reason of an obstruction by
the act of some other than the claimant,
and unless such obstruction is submitted to
or acquiesced in for one year after the
claimant has notice thereof, and of the
person making or authorizing the same to
be made.
19
Suspensions of enjoyment in
pursuance of a contract between the
dominant and servient owners is not an
interruption within the meaning of the
section.
20
3) In the Form of an Easement;
The right should be enjoyed only in the
form of easement.
4) For a Period of 20 years:
The right should be enjoyed for a
period of 20 years. In the case of an
easement to pollute water the said period
twenty years begins when the pollution
first prejudices perceptibly the servient
heritage.
5) Government Property
Explanation IV to S. 15 states
that when the property over which a right
is claimed belongs to Government, the
period shall be 30 years.
Such right can be exercised on the
following:
19
Explanation II to S. 15.
20
Explanation III to S. 15.
1) The access and use of light or air and
for any building.
2) Support from one person’s land or
things affixed thereto received by another
person’s land subjected to artificial
pressure, or by things affixed thereto.
3) A right of way or any other easement
has been openly enjoyed by any person
claiming title thereto.
Institution of Suits
Each of the said periods of 20
years (30 years in the case of Government
Property) shall be taken to be a period
ending within two years next before the
institution of the suit wherein the claim to
which such period relates is contested.
21
Illustrations
(i) A suit is brought in 1883 for
obstructing a right of way. The defendant
admits the abduction but denies the right
of way. The plaintiff proves that the right
was peaceably and openly enjoyed by him,
21
S. 15.
claiming title thereto, as an easement, and
as of right, without interruption, from 1st
January, 1862, to 1st January, 1882. The
plaintiff is entitled to judgment.
(ii) In a like suit the plaintiff shows that
the right was peaceably and openly
enjoyed by him for twenty years. The
defendant proves that for a year of that
time the plaintiff was entitled to
possession of the servient heritage as
lessee thereof and enjoyed the right as
such lessee. The suit shall be dismissed,
for the right of way has not been enjoyed
“as an easement” for twenty years.
(iii) In a like suit the plaintiff shows that
the right was peaceably and openly
enjoyed by him for twenty years. The
defendant proves that the plaintiff on one
occasion during the twenty years had
admitted that the user was not of right and
asked his leave to enjoy the right. The suit
shall be dismissed, for the right of way has
not been enjoyed “as of right” for twenty
years.
In Puri Muncipality v. Sradhmani
Devi
22
, the court held that the words “as an
easement” as appearing in section 15 are
indicative of the fact that the right must be
enjoyed by a person in his capacity as
owner of certain land (called dominant
heritage) for the beneficial enjoyment of
the land over certain land not of his own
(called the servient heritage).
Exclusion in Favour of Reversioner of
Servient Heritage
S. 16 provides that when any
land upon, over or from which any
easement has been enjoyed or derived has
been held under or by virtue of any
interest for life or any term of years
exceeding 3 years from the granting
thereof, the time of the enjoyment of such
easement during the continuance of such
interest or term shall be excluded in the
computation of the said period of 20 years
in case the claim is, within 3 years next
after the determination of such, interest or
term, resisted by the person entitled, on
such determination, to the said land.
22
A I R 1996 Ori 92
Illustration
A sues for a declaration that he is
entitled to a right of way over B’s land, A
proves that he has enjoyed the right for
twenty-five years. But B shows that
during ten of these years C had a life-
interest in the land; that one’s death B
became entitled to the land; and that
within two years after C’s death lie
contested A’s claim to the right. The suit
must be dismissed, as A, with reference to
the provisions of this section, has only
proved enjoyment for fifteen years.
Rights which cannot be Acquired by
Prescription
According to S. 17 none of the
following rights can be acquired by
prescription:
(a) A right which would tend to the total
destruction of the subject of the right, or
the property on which, if the acquisition
were made, liability would be imposed;
(b) A right to the free passage of light or
air to an open space of ground;
(c) A right to surface-water not flowing in
a stream and not permanently collected in
a pool, tank or otherwise;
(d) A right to underground water not
passing in a defined channel.
In Watsalabai v. S.P.Gaikwad
23
, the
court held that the chief characteristic of
surface water is that its identity and
existence as water body cannot definitely
be ascertained and it cannot be said to
belong to any particular person.
INCIDENTS OF EASEMENTS
Chapter 3 deals with the rules of
incidents of easements. The provisions
contained in this Chapter are controlled
by
24
:
23
1987 (1) Bom C R 105
24
S. 20.
1) Any contract between the dominant and
servient owners relating to the servient
heritage, and
2) Provisions of the instrument or decree,
if any, by which the easement referred to
was imposed.
3) Incidents of customary easement: In the
case of customary easement, when any
incident of any customary easement is
inconsistent with these rules, nothing in
this Chapter shall affect such incident.
Liabilities of a Dominant Owner
1) Bar to Use Unconnected with
Enjoyment
An easement must not be used
for any purpose not connected with the
enjoyment of the dominant heritage.
25
Illustrations
(i) A, as owner of a certain house, has a
right of way to and from it. For the
purpose of passing to and from the house,
the right may be used, not only by A, but
by the members of his family, his guests,
25
S. 21.
lodgers, servants, workmen, visitors and
customers: for this is a purpose, connected
with the enjoyment of the dominant
heritage. So, if A lets the house, he may
use the right of way for the purpose of
collecting the rent and seeing the house is
kept in repair.
(ii) A, as owner of a farm Y, has 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.
2) Confinement of Exercise of Easement
S. 22 provides that 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
(i) 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.
(ii) A has a right of way over B’s field, A
must enter the way at either end and not at
any intermediate point.
3) Liability for Expenses Necessary for
Preservation of Easement
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.
26
4) Liability for Damage for Want of
Repair
Where an easement is enjoyed
by means of an artificial work, the
26
S. 25.
dominant owner is liable to make
compensation of any damage to the
servient heritage arising from the want of
repair of such work.
27
Rights of a Dominant Owner
1) Right to Alter Mode of Enjoyment
S. 23 provides that 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 addition burden on the servient
heritage. But in the case of right of way
the dominant owner cannot vary his line of
passage at pleasure, even though he does
not thereby impose any additional burden
on the servient heritage.
(i) A has a right to discharge in B’s land
the rain-water from the eaves of A’s
house. This does not entitle A to advance
27
S. 26.
his eaves if, by so doing, he imposes a
greater burden on B’s land.
(ii) A, the owner of a sawmill, has a right
to a flow of water sufficient to work the
mill. He may convert the sawmill into a
corn-mill; provided that it can be worked
by the same amount of water.
(iii) A, a riparian owner, acquires as
against the lower riparian owners, a
prescriptive right to pollute a stream by
throwing sawdust into it. This does not
entitle A to pollute by discharging into it
poisonous liquor.
(iv) A as the owner of a paper-mill,
acquires a right to Pollute a stream in the
refuse-liquor Produced by making in the
mill paper from rags. He may pollute the
stream by pouring similar liquor produced
by making in the mill paper by a new
process from bamboss. Provided that he
does not substantially increase the amount,
or injuriously change of the pollution.
2) Accessory Rights
Rights to do acts necessary to
secure the full enjoy easement are called
accessory right. By virtue of S. 24 the
dominant owner is entitled, its against the
servient owner, to do all acts necessary to
secure the full enjoyment of the easement;
but such acts must be done at such time
and in such manner as, without detriment
to the dominant owner, to cause the
servient owner as little inconvenience as
possible; and the dominant owner must
repair, as far practicable, the damage (if
any) caused by the act to the servient
heritage.
Illustrations
(i) A, as owner of a certain field, has a
right of way over B’s land. B renders the
way impassable. A may deviate from the
way and pass over the adjoining land of B
provided that the deviation is reasonable.
(ii) A, as owner of a certain house, has a
right of way over B’s land. The way is out
of repair or a tree is blown down and falls
across it. A may enter on B’s land and
repair the way or remove the tree from it.
(iii) A, as owner of a certain house, has a
right or way over B’s field. A may
remove rocks to make the way.
(iv) A has air easement to lay pipes in B’s
land to convey water to A’s cistern. A
may enter a dig tire land in order to mend
tire pipes, but he must restore the surface
to its original state.
(v) A has an easement to have his land
flooded by means of a dam in B’s stream.
The dam is half swept by an inundation.
A may enter upon B’s land and repair the
dam.
(vi) A has an easement of a drain through
13’s land. The sewer with which the drain
communicates is altered. A may enter
upon B’s land and alter the drain, to adapt
it to the new sewer, provided that he does
not thereby impose any additional burden
on B’s land.
(vii) A has an easement of support from
B’s well. The wall gives way. A may
enter upon B’s land and repair the wall.
According to S. 36 the dominant
owner cannot himself abate a wrongful
obstruction of an easement in spite of the
provisions of Section 24.
Rights of Servient Owner
1) Right to Use Servient Heritage
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.
28
Illustrations
(i) A, in respect of his house, is entitled to
an easement of support from B’s wall. B
is not bound, as servient owner to keep the
wall standing and in repair. But he must
not pull down or weaken the wall so as to
make it incapable of rendering the
necessary support.
28
S. 27.
(ii) A grants a right of way through his
land to B as owner of a field. A may feed
his cattle on grass growing on the way,
provided that B’s right of way is not
thereby obstructed; but lie must not build a
wall at the end of his land so as to prevent
B from going beyond it, nor must he
narrow the way so as to render the
exercise of the right less easy than it was
at the date of the grant.
(iii) A, as owner of a house, has a fight to
lead water and send sewage through B’s
land. B is not bound, as servient owner, to
clear the watercourse or scour tire sewer.
(iv) A, in respect of his house, is entitled
to a certain quantity of light passing over
B’s land. B must not plant trees so as to
obstruct the passage to A’s windows of
that quantity of light.
(v) A, in respect of his mill, is entitled to a
watercourse through B’s land. A must not
drive stakes so as to obstruct the
watercourse.
2) Obstruction in case of Excessive User
In the case of excessive user of an
easement the servient owner may, without
prejudice to any other remedies to which
he may be entitled, obstruct the user but
only on the servient heritage: provided
that such user cannot be obstructed when
the obstruction would interfere with the
lawful enjoyment of the easement.
29
Illustration
A, having a right to the free passage over
B’s land of light to four windows, 6’x 4’,
increases their size and number. It is
impossible to obstruct the passage of light
to the new windows without also
obstructing the passage of light to the
ancient windows. B cannot obstruct the
excessive user.
Rights over the Property under Easement
1) Right to Enjoyment without
Disturbance
The owner or occupier of the
dominant heritage is entitled to enjoy the
29
S. 31.
easement without disturbance by any other
person.
30
Illustration
A, as owner of a house, has a right of way
over B’s land. C unlawfully enters on B’s
land and obstructs A in his right of way.
A may use C for compensation, not for the
entry, but for the obstruction.
In B. Susheelamma v. L. Heeralal
31
, the
court held that the act of digging the well
adjacent to the property of the respondents
to a depth of 32 feet is actionable nuisance
resulting substantial injury to the
enjoyment of the property by the
respondents.
2) Suit for disturbance of Easement
S. 33 provides 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 in cases where such
30
S. 32.
31
1987 (2) Adh LT 845
disturbance should actually cause
substantial damage to the plaintiff.
In Dhuman Khan v. Mohd Khan
32
, the
court held that where a right to light and
air has not ripened into an easement, a
person who has received permission from
the owner of the land adjoining the
windows may obstruct the right and no
action lies against him.
Extent and Mode of Enjoyment of
Easements
S. 28 provides that regarding the
extent of easements and the mode of their
enjoyment, the following provisions shall
take effect:
1) Easement of necessity
An easement of necessity is co-
extensive with the necessity, as it existed
when the easement was imposed.
2) Other easements
The extent of any other easement and
the mode of its enjoyment must be fixed
32
19 All 153 : 17 A W N 22
with reference to the probable intention of
the parties, and the purpose for which the
right was imposed or acquired.
In the absence of evidence as to such
intention and purpose the following
provisions shall be followed:
(a) Right of Way
A right of way of any one kind does
not include a right of way of any other
kind;
(b) Right of Light or Air Acquired by
Grant
The extent of a right to the passage of
light or air to a certain window, door on
other opening, imposed by a testamentary
or non-testamentary instrument, is the
quantity of light or air that entered the
opening at the time the testator died or the
non-testamentary instrument was made;
(c) Prescriptive Right to Light or Air
The extent of a prescriptive right to the
passage of light or air to a certain window,
door or other opening is that quantity of
light or air which has been accustomed to
enter that opening during the whole of the
perceptive period irrespectively of the
purposes for which it has been used;
(d) Prescriptive Right to Pollute Air or
Water
The extent of a prescriptive right to
pollute air or water is the extent of the
pollution at the commencement of the
period of user on completion of which the
right arose; and
(e) Other Prescriptive Rights to Pollute
Air or Water
The extent of every other prescriptive
right to pollute air or water is the extent of
the pollution at the commencement of the
period of user or completion of which the
right arose; and
(f) Other Prescriptive Rights
The extent of every other
prescriptive right and the mode of its
enjoyment must be determined by the
accustomed user of the right.
In K.V.K. Janardhanan v. State of
Tamilnadu
33
, the court held that neither
the Government nor the Muncipality or
any local body has got the right to put up
any obstructions over the public street so
as to prevent it from having any access to
the adjoining land. The owner of the land
adjoining the public street has got a right
of access at every point where his or her
land adjoins Public Street.
Increase of Easement
S. 29 provides that the dominant owner
cannot, by merely altering or adding to the
dominant heritage, substantially increase
an easement. Where an easement has been
granted or bequeathed so that its extent
shall be proportionate to the extent of the
dominant heritage, if the dominant
heritage is increased by alluvion, the
easement is proportionately increased, and
if the dominant heritage is diminished by
diluvion, the easement is proportionately
diminished. Save as aforesaid, no
33
A I R 1995 Mad 179
easement is effected by any change in the
extent of the dominant or the servient
heritage.
Illustrations
(i) A has acquired an easement to pollute a
stream by carrying on a manufacture on its
banks by which a certain quantity of foul
matter is discharged into it. A extends his
works and thereby increases the quantity
discharged. He is responsible to the lower
riparian owners for injury done by such
increase.
(ii) A as the owner of a farm, has a right to
take for the purpose of manuring his farm;
leaves which have fallen from the trees on
B’s land. A buys a field and unites it to
his farm. A is not thereby entitled to take
leaves to manure this fields.
(iii) A, the owner of a mill, has acquired a
prescriptive right, to divert to his mill part
of the water of a stream. A alters the
machinery of his mill. He cannot thereby
increase his right to divert water.
Partition of Dominant Heritage
S. 30 provides that where a dominant
heritage is divided between two or more
persons, the easement becomes annexed to
each of the shares, but not so as to
increase substantially the burden on the
servient heritage: provided that such
annexation is consistent with the terms of
the instrument, decree or revenue
proceeding (if any) under which the
division was made, and in the case of
prescriptive rights, with the user during
the prescriptive period.
Illustrations
(i) A, having in respect of his house an
easement of light, divides the house into
three district heritages. Each of these
continues the have to right to have its
windows unobstructed.
(ii) A house to which a right of way by a
particular path is annexed is divided into
two parts, one of which is granted to A,
the other to B. Each is entitled, in respect
of his part, to a right of way by the same
path.
(iii) A house to which is annexed the right
of drawing water from a well to the extend
of fifty buckets a days is divided into two
distinct heritages, one of which is granted
to A, the other to B, A and B are each
entitled, in respect of his heritage, to draw
from the well fifty buckets a day but the
amount drawn by both must not exceed
fifty buckets a day.
DISTURBANCE OF EASEMENTS
Chapter 4 which contains Ss. 32 to 36
deals with the right to enjoy the easement
without disturbance.
Substantial Damage
S. 33 provides 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. 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.
34
Explanation I to S. 33 states 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 within the meaning of
Ss 33 and Section 34.
Explanation II to S. 33 states that
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
34
S. 34.
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.
35
Illustrations
(i) A, as owner of a house, has a right to
walk along one side of B’s house. B
builds a verandah overhanging the way
about ten feet from the ground and so as
not to occasion any inconvenience to foot
passengers using the way. This is not
substantial damage to A.
(ii) A places a permanent obstruction in a
path over which B, as tenant of C’s house,
has a right of way. This is substantial
damage to C, for it may affect the
evidence of his reversionary right to the
easement.
Injunction to restrain disturbance
35
Explanation III to S. 33.
S. 35 states that subject to the
provisions the Specific Relief Act, 1877,
Sections 52 to 57 (both inclusive), 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,
disturbed the easement.
EXTINCTION, SUSPENSION AND
REVIVAL OF EASEMENT
Chapter 5 which contains Ss. 37
to 51 deals with extinction, suspension
and revival of easement.
Circumstances/Instances under which an
Easement is Extinguished
1) Dissolution of Right of Servient Owner
S. 37 provides that 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. This provision shall not
apply to an easement lawfully imposed by
a mortgagor in accordance with Section
10.
Illustrations
(i) A mortgages Sultanpur to B. and
lawfully imposes an easement on the land
in favour of C in accordance with the
provisions of Section 10. The land is sold
to D in satisfaction of the mortgage-debt.
The easement is not thereby extinguished.
(ii) A transfers Sultanpur to B on
condition that he does not marry C, B
impress an easement on Sultanpur. Then
B marries C, B’s interest in Sultanpur
ends, and with it the easement is
extinguished.
(iii) A and B, tenants of C, have
permanent transferable interest in their
respective holdings. A imposes on his
holding an easement to draw water from a
tank for the purpose of irrigating B’s laid.
B enjoys the easement for twenty years.
Then A’s rent falls into arrear and his
interest is sold B’s easement is
extinguished.
(iv) A, in 1860, let Sultanpur to B for
thirty years from the date of the lease. B,
it 1861, 4nposes an easement on the land
in favour of C, who enjoys the easement
peaceably and openly an easement without
interruption for twenty-nine years, B’s
interest in Sultanpur then ends, and with it
C’s easement.
2) Release
S. 38 provides that an easement
is extinguished when the dominant owner
releases it, expressly or impliedly, to the
servient owner. Such release can be made
only in the circumstances and to the extent
in and to which the dominant owner can
alienate the dominant heritage. An
easement may be released as to part only
of the servient heritage.
Illustrations
(i) A, B and C are co-owners of a house to
which an easement is annexed. A.
Without the consent of B and C releases
the easement. This release is effectual
only all against A and his legal
representative.
(ii) A grants B an easement over A’s land
for the beneficial enjoyment of his house.
B assigned the house to C, B then purports
to release the easement. The release is
ineffectual.
(iii) A, having the right to discharge his
eavesdroppings into B’s yard, expressly
authorises B to build over this year to a
height which will Interfere with the
discharge. B builds according A’s
easement is extinguished to the extent of
the interference.
Implied Release
An easement can be released impliedly.
Mere nonuser of an easement is not an
implied release within the meaning of S.
38.
36
It can be released impliedly where:
(a) the dominant owner expressly
authorises an act of a permanent nature to
be done on the servient heritage, the
necessary consequence of which is to
prevent his future enjoyment of the
easement, and such act is done in
pursuance of such authority;
(b) any permanent alteration is made in the
dominant heritage of such a nature as to
show that the dominant owner intended to
cease to enjoy the easement in future.
37
Illustrations
(i) A, having an easement of light to a
window, builds up that window with
bricks and mortar so as to manifest an
intention to abandon the easement
36
Explanation II to S. 38.
37
Explanation I to S. 38.
permanently. The easement is impliedly
in released.
(ii) A, having a projecting roof by means
of which fie enjoys an easement to
discharge eavesdropping on B’s land
permanently alters and roof so as to direct
the rain-water into a different channel and
discharge it on C’s land. The easement is
impliedly released.
3) Revocation
An easement is extinguished
when the servient owner, in exercise of
power reserved in this behalf, revokes the
easement.
38
4) Expiration of Limited Period or
Happening of Dissolving Condition
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
non-performance of a specified act, and
38
S. 39.
the period expires or the condition is
fulfilled.
39
5) Termination of necessity
An easement of necessity is
extinguished when the necessity comes to
an end.
40
Illustration
A grant B a field inaccessible except by
passing over A’s adjoining land, B
afterwards purchases a part of that land
over which he can pass to his field. The
right of way over A’s land which B has
acquired is extinguished.
6) Easement becoming Useless
An easement is extinguished
when it becomes incapable of being at any
time and under any circumstances
beneficial to the dominant owner.
41
7) Permanent Change in Dominant
Heritage
39
S. 40.
40
S. 41.
41
S. 42.
S. 43 provides that 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.
Nothing in this section shall be deemed
to apply to in easement entitling the
dominant owner to support of the
dominant heritage.
8) Permanent Alteration of Servient
Heritage by Superior Force
By virtue of S. 44 an easement is
extinguished where the servient heritage is
by superior force so permanently altered
that dominant owner call no longer enjoy
such easement:
Proviso to S. 44 states that, where a
way of necessity is destroyed by superior
force, the dominant owner has a right to
another way over the servient heritage;
and the provisions of Section 14 apply to
such way.
Illustrations
(i) A grants to B, as the owner of a certain
house, a right to fish in a river running
through ‘s land. The river changes its
course permanently and runs through C’s
land. B’s easement is extinguished.
(ii) Access to a path over which A has a
right of way is permanently cut off by an
earthquake. A’s right is extinguished.
9) Destruction of Either Heritage
An easement is extinguished
when either the dominant or the servient
heritage is completely destroyed.
42
Illustration
A has a right of way over a road
running along the foot of a sea-cliff. The
road is washed away by a permanent
encroachment of the sea. A’s easement is
extinguished.
10) Unity of Ownership
An easement is extinguished
when the same person becomes entitled to
the absolute ownership of the whole of the
dominant and servient heritages.
43
Illustrations
(i) The servient owner acquires the
dominant heritage in connexion with a
person; the easement is not extinguished.
(ii) The joint owners of the dominant
heritage jointly acquire the servient
heritage; the easement is extinguished.
(iii) The dominant owner acquires only
part of the servient heritage: the easement
42
S. 45.
43
S. 46.
is not extinguished, except in the ease
illustrated in Section 41.
(iv) A single right of way exists over two
servient heritages for the beneficial
enjoyment of a single dominant heritage.
The dominant owner acquires only one of
the servient heritages. The easement is
not extinguished.
(v) A, as the owner of a house, has a right
of way over B’s field. A mortgages his
house, and B mortgages his field to C.
Then C forecloses both mortgages and
becomes thereby absolute owner of both
house and field. The right of way is
extinguished.
(vi) A has a right of way over B’s road. B
dedicates the road to the public. A’s right
of way is not extinguished.
(vii) The separate owners of two separate
dominant heritages jointly acquire the
heritage which is servient to the two
separate heritages; the easements are not
extinguished.
11) Non-Enjoyment
S. 47 provides that a continuous
easement is extinguished when it totally
ceases to be enjoyed as such for an
unbroken period of’ 20 years. In the case
of discontinuous easement is extinguished
when, for a like period, it has not been
enjoyed as such. Such period shall be
reckoned, in the case of a continuous
easement, from the day on which its
enjoyment, was obstructed by the servient
owner or rendered impossible by the
dominant owner.
In the case of a discontinuous
easement, such period shall be reckoned
from the day on which it was last enjoyed
by and person as dominant owner. But if
the dominant owner, within such period,
registers, under the Indian Registration
Act, III of 1877, a declaration of his
intention to retain such easement, it shall
not be extinguished until a period of 20
years has elapsed from the date of the
registration.
44
44
Proviso to S. 47.
Extinction under S. 47 is not Prevented by
the following Circumstances:
(i) Where an easement can be legally
enjoyed only at a certain place, or at
certain times, or between certain hours, or
for a particular purpose, is enjoyment
during the said period at another place, or
at other items, or between other hours, or
for another purpose.
(ii) During the above said period no one
was in possession of the servient heritage,
or that the easement could not be enjoyed
or that a right accessory thereto was
enjoyed, or that dominant owner was not
aware of its existence, or that he enjoyed it
in ignorance of his right to do so.
An Easement is not Extinguished under S.
47 where:
(a) the cessation is in pursuance of
contract between the dominant and
servient owners;
(b) the dominant heritage is held in co-
ownership, and one of the co-owners
enjoys the easement within the said
period; or
(c) the easement is necessary easement.
Illustration
A has, an annexed to his house, rights of
way from the high road neither over the
heritages X and Z and the intervening
heritage Y. Before the twenty years
expire. A exercise his right of way over
X. His rights of way over Y and Z are not
extinguished.
For the purposes of S. 47 where several
heritage are respectively subject to rights
of way for the benefit of a single heritage,
and the ways are continuous, such rights
shall, be deemed to be a single easement.
Extinction of Accessory Right
S. 48 provides that when an
easement is extinguished, the right (if any)
accessory thereto are also extinguished.
Illustration
A has an easement to draw water from
B’s well. As accessory thereto be has a
right of way over B’s land to and from the
well. The easement to draw water is
extinguished under Section 47. The right
of way is also extinguished.
Suspension of Easement
S. 49 provides that an easement
is suspended when the dominant owner
becomes entitled to possession of the
servient heritage for a limited interest
therein or when the servient owner
becomes entitled to possession of the
dominant heritage for a limited interest
therein.
By virtue of S. 50 the servient
owner not entitled to require continuance.
The servient owner has not right to require
that an easement be continued; and
notwithstanding the provisions of Section
26, he is not entitled to compensation for
damage caused to the servient heritage in
consequence of the extinguishment or
suspension of the easement, if the
dominant owner has given to the servient
owner such notice as will enable him,
without unreasonable expense, to protect
the servient heritage from Such damage.
Illustration
A, in exercise of an easement, diverts to
his canal the water of B’s stream. The
diversion continues for many years, and
during that time the bed of’ the steam
partly fills up. A then abandons his
easement, and restores the stream to its
ancient court. B’s land is consequently
flooded. B sues A for compensation for
the damage caused by the flooding. It is
proved that a gave B a months’ notice of
his intention to abandon the easement, and
that such notice was not sufficient to
enable B, without unreasonable expense,
to have prevented the damage. The suit
must he dismissed.
Compensation
When a notice as to enable the
servient owner, without unreasonable
expense, to protect the servient heritage
from the above mentioned damage has not
been given, he (servient owner) is entitled
to compensation for damage caused to the
servient heritage in consequence of such
extinguishment or suspension.
Revival of easement
S. 51 provides that an easement
extinguished under Section 45 revives in
the following circumstances:
1) when the destroyed heritage is, before
twenty years have expired restored by the
deposit of alluvion;
2) when the destroyed heritage is a
servant building and before twenty years
have expired such building is rebuilt upon
the same site, and
3) when the destroyed heritage is a
dominate 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 servant
heritage.
4) 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.
5) A suspended easement revives if the
cause of Suspension is removed before the
right is extinguished under Section 47.
Illustration
A, as the absolute owner of field Y, has
right of way thither over B’s field A, A
obtains from B a lease of Z for twenty
years. The easement is suspended so long
as A remains lessee (If Z. But when A
assigns the lease to C, or surrenders it to
B, the right of way revive.
LICENCES
Chapter 6 which contains Ss. 52 to 64
deals with licences. S. 52 defines
“Licence” as where one person grants to
another, or to a definite number of other
persons, a right to do, or continue to do, in
or upon the immovable property of the
grantor, something which would, in the
absence of such right, be unlawful, and
such right does not amount to an easement
or an interest in the property, such a right
is called a licence.
Granting of Licence
The grant of a licence may be
express or implied from the conduct of the
grantor, and an agreement which purports
to create an easement, but is ineffectual
for that purpose, may operate to create a
licence.
45
By virtue of S. 53 a licence may
be granted by any one in the circumstance
and to the extend in and to which he may
transfer his interests in the property
affected by the licence.
Accessory Licences
45
S. 54.
All licences necessary for the
enjoyment of any interest, or the exercise
of any right, are implied in the constitution
of such interest or right. Such licences are
called accessory licences.
46
Illustration
A sells the trees growing in his land to B.
B is entitled to go on the land and take
away the trees.
Transferring of Licence
By virtue of S. 56 unless a
different intention is expressed or
necessarily implied, a licence to attend a
place of public entertainment may be
transferred by the licensee; but, save as
aforesaid, a licence cannot be transferred
by the licensee or exercised by his
servants or agents. When the grantor of
the licence transfers the property affected
thereby, the transferee is not as such
bound by the licence.
47
46
S. 55.
47
S. 59.
Illustrations
(i) The Government grants B a licence to
erect and use temporary grain-sheds on
Government land. In the absence of
express provision to the contrary, B’s
servants may enter on the land for the
purpose of erecting sheds, erect the same,
deposit grain therein and remove grain
therefrom.
(ii) A grants B a right to walk over A’s
field whenever he pleases. The right is not
annexed to any immovable property of B.
The right cannot be transferred.
Revocation of Licence
The revocation of a licence may be
express or implied.
48
By virtue of S. 60 a
licence may be revoked by grantor, unless:
(a) It is coupled with a transfer of property
and such transfer is in force.
48
S. 61.
(b) The licensee, acting upon the licence,
has executed a work of a permanent
character are incurred expenses in the
execution.
Illustrations
(i) A, the owner of a field, grants a licence
to B to stack may on the field. A lets or
sells the field to C’. The licence is
revoked.
(ii) A, the owner of a field, grants a
licence to B, to use a path across it. A,
with intent to revoke the licence, locks a
gate across the path. The licence is
revoked.
In Vishwanath Sawant v. Gandabbai
Kikabhai
49
, the court held that a personal
gratuitous license can be revoked at any
time at the whims and fancies of grantor
and the nature of the continued occupation
by the defendant is nothing but that of a
trespasser.
49
1990 (2) Bom CR 406.
Deemed Revocation
By virtue of S. 62 a licence is
deemed to be revoked:
(a) When, from a cause preceding the
grant of it, the grantor ceases to have any
interest in the property affected by the
licence;
(b) When the licensee releases it,
expressly or impliedly, to the grantor of
his representative;
(c) Where it has been granted for a limited
period, or acquired on condition that it
shall become void on the performance or
non-performance of a specified act, and
the period expires, or the condition is
fulfilled;
(d) Where the property affected by the
licence is destroyed or by superior force so
permanently altered that the licensee can
no longer exercise his right;
(e) Where the licensee becomes entitled to
the absolute ownership of the property
affected by the licence;
(f) Where the licence is granted for a
specified purpose and the purpose is
attained or abandoned, or becomes
impracticable;
(g) Where the licence is granted to the
licensee is holding a particular office,
employment or character, and such office,
employment or character ceases to exist;
(h) Where the licence totally ceases to be
used as such for an unbroken period of
twenty years, and such cessation is not in
pursuance of a contract between the
grantor and the licensee;
(i) In the case of all accessory licence,
when the interest or right to which it is
accessory to exist.
Rights of Licensee
1) Disclosure of Defects
The grantor of a licence is
bound to disclose to the licensee any
defect in the property affected by the
licence, likely to be dangerous to the
person or property of the licence of which
the grantor is, and the licensee is not,
aware.
50
2) Rights on Revocation
Where a licence is revoked, the
licensee is entitled to reasonable time to
leave the property affected thereby and to
remove any goods which lie has been
allowed to place on such property.
51
3) Rights on Eviction
Where a licence has been
granted for a consideration, and the
licensee, without any fault of his own, is
evicted by the grantor before he has fully
enjoyed, under the licence, the right for
which he contracted, he is entitled to
recover compensation from the grantors.
52
Lease and License
50
S. 57.
51
S. 63.
52
S. 64.
Sections 52 to 64 of this Act deals with
license where as lease has been dealt
under sections 105 to 117 of Transfer of
property Act.
In Thakur Prasad v. The State Iron and
Steel Co Ltd
53
, the Court distinguished a
lease from license in the following words.
“In the case of lease, interest in the
property is transferred but in the case of
license the right to enjoyment of the
property in a particular manner and for a
particular purpose is only given”.
In A.P. Kini v. K. Ammal
54
, the court held
that the distinction between a license pure
and simple and a license coupled with an
interest is that a bare license without
anything more is always revocable at the
will of the license coupled with a grant of
interest the licensor cannot in general
revoke it so as to defeat the grant to which
it is incident.
53
AIR 1976 Patna 156.
54
A I R 1990 Ker 136.
In FazalHaq v. Data Ram
55
, the Court
held that the crucial test in each case is
whether the instrument is intended to
create or not to create an interest in the
property, the subject matter of the
agreement. If it is in fact intended to create
an interest in the property it is a lease, if it
does not it is a license.
55
AIR. 1975 Alld 3731.
