CIVIL

The Law of Prescriptive Rights

Acquisition by prescription under Indian Easement Act 1882[Sec 15 to 17]

RE

 Sec15- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years 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.
Explanation I. -Nothing is an enjoyment within the meaning of this section 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.
Explanation II. -Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person 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.
Explanation III. -Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV. -In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the 1 Government, this section shall be read as if, for the words “twenty years” the words 2 “thirty years” were substituted.

Illustrations
(a)A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, 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.
(b)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.
(c)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.


16. Exclusion in favour of reversioner of servient heritage.

Provided 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 three 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 last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.

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 on C’s death B became entitled to the land; and that within two years after C ‘s death he 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.


17. Rights which cannot be acquired by prescription

Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.

None of the following rights can be so acquired:-
(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.


 

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