What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?

Adv. Saji Koduvath.  

What is Easement?

SECTION 4 of the Indian Easements Act defines Easements as under:

• “An easement is 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.”

“An easement is a right”

Under easement:

• No Ownership is bestowed. (AIR 2004 All 359)
• No Possession is passed. (2011 (2) KLT 605; AIR 1925 Bom 335)  
• No Interest in land is created. (2003 (1) KLT 320; AIR 1954 All 393)
• No freehold right is conferred. (AIR 1925 Bom 335)

According to ‘Katiyar on Easements’:                                                                   

• Easement is not a right to land or exclude owner.
• It is not a right to permanent occupation. 
• It does not confer exclusive right of user/enjoyment.
• And, it is not a corporeal interest in land.

“… which the owner or occupier of certain land possesses”

Sec. 12 states that an easement is acquired by the owner of an immovable property. Sec. 21 lays down that an easement must not be used for any purpose not connected with enjoyment of the dominant heritage. It cannot be severed from dominant heritage.

‘Enjoyment’ of ‘Land’

Easements are limited to ‘enjoyment of’ Servient ‘land’ (and things ‘subsisting’, for land includes things permanently attached to earth).

“As Such“

‘As such’ is used for emphasis to convey that easement is essentially connected to the dominant land, and it is inherently for the beneficial enjoyment of annexed/appertained (dominant) land; and not a right ‘in gross’ (for the benefit of individuals).

“For the Beneficial Enjoyment of that Land.“

Easements are primarily for the beneficial enjoyment of dominant heritage. Easement stands as part and parcel of dominant land. The definition says that an easement is a ‘right which the owner or occupier of certain land possesses, as such’. 

“To do and continue to do something, or to prevent and continue to prevent something being done”

Under English Law, an easement is a privilege alone; and profit-a-prendre (right to take) is not an easement. The Indian Easements Act purposefully used “to do something in or upon”, decisively avoiding, ‘to use’ or ‘to enjoy’; because, Indian Law allows ‘profit-a-prendre’ [fishing, pasturing, grass-cutting for thatching, etc.]. It is allowed on Indian situations – without conferring substantial interest in the servient land. ‘Profit a predre’ is not appurtenant to any dominant land; and it is a right ‘in gross’ (for the benefit of individuals).

The word ‘Servient’ is derived from ‘Serve’

Sec. 4 Explains Dominant and Servient Heritages and Owners as under:

• “Dominant and Servient Heritages and Owners: 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.”

Therefore, the person who claims the easement is the ‘dominant owner’ and his land is ‘dominant land’; and the land upon which the right is claimed is ‘servient’ (a word derived from ‘serve’) land and its owner is ‘servient owner’.

Easement is acquired; not arise out of ‘Express Permission’

Sec. 12, Easements Act states that an easement is acquired by the owner of an immovable property. It is observed by the Apex Court in Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103, that the claimant of easement should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. 

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are, as pointed out in Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, the following:

1. easements by grant: a grant by the owner of the servient heritage
2. easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
3. easements by prescription: acquired by peaceable and open enjoyment, without interruption for twenty years and
4. customary easements: acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Grant by a Co-owner

Grant effected by a co-owner with the consent of other co-owners, or validated by their approval or ratification, alone is valid. In proper cases such consent or ratification may be presumed.

Prescriptive Rights are Inchoate until upheld by a competent court

No doubt, it is true, one can acquire easement by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the such title is upheld by a competent court.

It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court. See also:

• Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in: Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574; Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97;
• D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
• See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

Lost Grant

In Easements Act by Dr. Karandikar & Chitaley at Page 425, note 20 (Title by lost grant), it is observed as follows:

• “(2) The evidence from which a lost grant may be inferred is not very different from the evidence on which a claim for a prescriptive easement may be established.
• (3) (Drainage system of defendant’s building connected with sewer line of plaintiff’s building – Right claimed by defendant exercised secretly – Held, right was not proved.) The presumption of lost grant may be negatived by showing legal incompetence as regards owner of the servient tenement to grant an easement or a physical incapacity of being obstructed as regard the easement itself or an uncertainty or secrecy of enjoyment putting out of the category of all known easements.
• (4) Where the plaintiff did make out a case of user from time immemorial in the plaint a decree could be granted on the basis of lost grant.
• (5) Acquisition of easement by immemorial user based on doctrine of lost grant can be claimed when dominant and servient tenements are held under same landlord.
• (6) Proof of the origin of right or by such proof of long & uninterrupted usage as in the absence of a documentary title will suffice to establish a prescriptive right.” (Quoted in Varghese v. Jose Mathew, 2014-3 Ker LT 1065).

In Halsbury’s Laws of England Vol 16(2) at Page 42, paragraph 76, it is observed as follows:

• “76. Prescription based on presumed grant. The doctrine of prescription generally is based upon the presumption of a grant, the common law doctrine being that all prescription presupposes a grant once made and validly subsisting, but since lost or destroyed. The other forms of prescription are merely modifications of this doctrine. The presumption in the former instance of such a grant arises under the doctrine of prescription from the fact of enjoyment of the right. It therefore follows that a right claimed by prescription must be such that it could have formed the subject matter of a grant. Nothing which cannot have had a lawful beginning can be claimed by prescription. Recourse can only be had to the doctrine of prescription in cases where a grant of the right is not forthcoming, for prescription has no place if a grant is proved and its terms are known“. (Quoted in Varghese v. Jose Mathew, 2014-3 Ker LT 1065).

Is profit-a-prendre incompatible with Easement

Explanation in Sec. 4 reads:

• “…’to do something’ includes removal and appropriation .. of any part of the soil .. or anything growing or subsisting thereon ..”

From Explanation in Sec. 4 it is clear that easement included appropriation of certain tangible material things. They are made clear by the Illustrations to various sections. Eg.

• Illustn.-(d) of S.4 speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
• Illustn.- (b) of S. 22 states cutting  thatching- grass. 
• Illustn.- (a) of S. 24 refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’ (as in English Law); but, it includes:

• limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
• a right for (expressly-recognised) profit.

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right on land.  And it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross, ie. for the benefit of individuals (primarily because, it comes out from the ‘Explanation’ of the Definition of Easement). On a close look, it can be seen that it is definitely related to ‘user’ of servient land, by people living in a locality.

No right to build-and-enjoy

Easement is a Right for ‘enjoyment’ of things ‘subsisting’.  It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is further clear from Sec. 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation.

“In or upon, or in respect of, certain other land not his own”

Easement is a right upon land of another; not his own. It is a Right to do something in or upon land of another. Even if the easement involves ‘construction’, it should be of another; because, Sec. 4: Explanation reads: “land” includes also things permanently attached to earth.

If the subsisting-construction is made by, or it belongs to, dominant owner, no doubt, there will be no easement. [1987 (2) Ker LT 1037 (Bund); AIR 1915 PC 131 (Jetty); AIR 1971 SC 1878].

Scheme of the Indian Easements Act

It is clear from Sec. 31 of the Indian Easements Act that a dominant owner only ‘uses’ servient tenement and ‘enjoys’ the easement.

Easement is a right that allows:

• Only ‘enjoyment’ of soil or things ‘subsisting’ thereon (Explanation in Sec. 4).
• for limited enjoyment of (a) land & (b) advantages arising from its situation: S. 7
• exercise right, in a way least onerous: S. 22
• secure full enjoyment, but cause as little inconvenience: S. 24 2017(2) KLT 63

It is Not a right to:                                            

• tend to total destruction of ser. tenement: S. 17 (2003 (1) KLT320)
• make additional burden: S. 23
• make constructions in, or cultivate upon: (2003 (1) KLT 320).
• prevent servient owner to use: S. 27 : 2003 (1) KLT 320
• enlarge purpose of, or accustomed, user: S. 28
• substantially increase an easement: S. 29
• prevent servient owner from obstructing excessive  ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
• increase burden by making permanent change in do. tent: S. 43
• capable of forming grant – No easement-if Not capable of forming grant (without document or registration): 1987 (2) KLT 1037;

No easement if:

• right claimed is incidents of ownership.
• servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

Easement Not Allows to ‘Enjoy’ After Making a Construction.

Though the right allowed by the Easement Act is limited only to ‘enjoy’ things subsisting, as shown above, it is clear that it does not allow to ‘enjoy’ after making a construction. It is further clear from the Scheme of the Act.

• S. 4 An easement is a ‘right which the owner or occupier of certain land possesses’ “as such”
• S.4: Illustn. (d):  Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring .
• S. 7: Only a right for limited enjoyment of (a) land & (b) advantages arising from its situation. (It is stated:  Easements are restrictions of (a) Exclusive right (of owner) to enjoy immovable property, (b) Rights to advantages arising from its situation)
• S. 12 An easement is acquired by owner an immovable property.
• S. 17: Not a right – to tend to total destruction of the servient tenement. (2003 (1) KLT 320)
• S. 21 An easement must not be used for any purpose not connected with enjoyment of the dominant heritage.
• S. 22: Exercise easement – least onerous to servient tenement (Illustn.- b: can cut thatching- grass, not to destroy plants)
• S. 23: Not to make additional burden (Illus.- b: not to advance eaves; Illus.- d: not another pollution)
• S. 24: Secure full enjoyment, but cause as little inconvenience.  Illus. (a) easement to lay pipes
• S. 27: Servient owner is entitled to use – consistent with  easement
• S. 28: Easements of  necessity, Right of way, Other prescriptive rights not to enlarge purpose, accustomed user etc.
• S. 29: Dominant owner Cannot substantially increase an easement
• S. 31: If excessive user – servient owner may obstruct the user.
• S. 43: Permanent change in the dominant heritage and the burden increased – easement is extinguished

Basis of Every Right of Easement Is Theoretically a Grant

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

The basis of every right of easement is theoretically a ‘grant’ from the servient-owner.

• It may be expressed, as in Sections 8 to 12 of the Act; or
• it may be implied from the circumstances as in Section 13 of the Act; or
• it may be presumed from long and continued user for a certain period as in Section 15 of the Act; or
• it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Customary Easements

Section 18 of the Easement Act reads as under:

• “18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement are to be proved (Lachhi v. Ghansara Singh, AIR 1972 HP 89). In customary easements there need not be any ‘dominant tenement’. It is a right ‘in gross’ (to many). Customary easements also does not allow to ‘construct and use’.

Acquiring Customary Easement by One Person or a Fluctuating Body

Illustration (a) to sec. 18 runs as follows:

• “By the custom of a certain village every cultivator of village land is entitled, as such, to grass 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 customs.”

A customary easement can be claimed by a family or an individual, and such claim need not be by a large community alone (R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206). To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right of uninterrupted user is quite different from setting up a local custom.

It is also pointed out that different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. Therefore, customary easement is unappurtenant to any dominant tenement, or it has no relation to the beneficial enjoyment of a dominant tenement as required in easement. A fluctuating body like the inhabitants of the locality cannot claim an easement as can be done in customary easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general (Brahma Nand VS Teju Ram, 2019-195 AIC 584).

---

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Relevant provisions of Kerala Land Reforms Act (on Purchase Certificate,  Plantation-Exemption & Ceiling Area) in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Civil Rights and Jurisdiction of Civil Courts
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• Res Judicata and Constructive Res Judicata
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept
• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Notary-Attested Documents: Presumption, Rebuttable
• Is Decree in a Representative Suit (OI R8 CPC) Enforceable Against Persons Not Eo-Nomine Parties?

Evidence Act

• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation
• Relevancy, Admissibility and Proof of Documents

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Parsi Women – Excommunication for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• Ayodhya Disputes: M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Vesting of Property in Societies and Clubs
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features

Trusts/Religion

• Suits By or Against Trusts and Trustees
• Breach of Trust and Removal of Trustees
• Trustees and Administration of Public Trusts
• Business by Charitable Trusts & Institutions
• Alienation of Public Trust Property
• Remedies Under Sec. 92 CPC
• Philosophy of Idol Worship
• Vesting of Property in Public Trusts: in Nutshell
• Dedication of Property in Public Trusts
• Is an Idol a Perpetual Minor?
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Public & Private Trusts in India.
• What is Trust in Indian Law?
• Incidents of Trust in Clubs and Societies
• Vesting of Property in Trusts
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
• Ayodhya Disputes: M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
• Parsi Women Excommunication for Marrying Outside, Unconstitutional.
• Extinction, Discharge, Revocation, Variation etc. of Public Trusts
• Trust is ‘An Obligation’; Not a Legal Entity
• State & Court – Protectors of All Charities