Category: Easements Act

Dr. S. Kumar & Ors. Vs. S. Ramalingam-16/07/19

SUPREME COURT OF INDIA JUDGMENTS

Section 41 of the Indian Easements Act, 1882-Easement of necessity-The argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable if the rights of the parties arise out of a sale deed and the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the easement right. The appellants have been granted right to use passage in the sale deed.

Easement of necessity

In Rameshchandra Bhikhabhai Patel Vs. Maneklal Maganlal Patel and Another[AIR 1986 Kant 456] , it is held that “Easement of necessity would no longer be available when alternative way is available to […]

Ownership and easement right are inconsistent and cannot coexist in the same person.

As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. When the dominant and servient tenement are in the ownership and possession of the same person acts done by him on the servient tenement are clearly referable to his possession of that tenement and hence there cannot be any easement by prescription,