Category: Easements Act

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


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,

If property belongs to Government for acquisition of easementary right by prescription user of “30 years” is required.

It is settled principle of law that what has not been conferred in the plaint cannot be proved. Only right of easement by way of prescription has been pleaded, alleging that Plaintiff was using the land of Plot No. 164 for 20 years. It is pertinent to mention here that at the end of Section 15 of Indian Easement Act, 1882, which pertains to acquisition by prescription, it is specifically mentioned that if the property, over which a right is claimed, belongs to the Government, the word ’20 years’ shall be read as ’30 years’. As such, in respect of a Government land mere user for 20 years does not confer any easementary right by way of prescription to the Plaintiff, as he has nowhere pleaded that he used the land for 30 years or more.

An easement of way claimed as a way of necessity can only be created where there is an absolute necessity for it

It is a well-established principle of law that a man cannot acquire a way of necessity, if he has other means of access to his land, however inconvenient, it may be, then by passing over to his neighbors soil. An easement of way, claimed as a way of necessity, can only be created where there is an absolute necessity for it, and not when there is a possibility of finding out another way, though at a greater expense. Under the provisions of Section 13 of the Easements Act, 1882 [hereinafter called as “the Act” for short], a right of easement has been conferred under the provisions and in a case where a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement. Even otherwise, if an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, a person who has been granted share is entitled to such easement.