Is the Basis of Every Easement, Theoretically, a Grant

Saji Koduvath, Advocate.

 “An easement is a Right”

  • Easement is a right possessed by the owner of a land (dominant land),
    • to use the land of another (servient land),
    • for the beneficial enjoyment of the (dominant) land.

Easement Does Not Confer Ownership or Possession

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

Easement (सुखाधिकार) is Well Recognised; And Circumscribed by Law

  • Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
  • It is to do, or to prevent to do, some specific thing.
  • It is to be exercised in a way least onerous to ‘another’s land’.
  • It is not a right to build and enjoy.
  • The right gained cannot be enlarged.
    • That is, an easement of way to a particular (dominant) property cannot be extended to another property by the dominant owner; an easement for residential purpose cannot be enlarged for an industrial purpose. (Sec. 28, 29, 43 etc.)
  • Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

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.

Easement – Definition under the Indian Easements Act

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.”

Salient Limitations of Easement under the Indian Easements Act

  • The owner of a land only ‘uses’or ‘enjoys‘ another’s land (Sec. 31)
  • Only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in Sec. 4).
  • Limited enjoyment of (a) land & (b) advantages from its situation: S. 7
  • Right be exercised in a way least onerous to ‘another’s land’: Sec. 22
  • Secure full enjoyment, cause as little inconvenience: Sec. 24: 2017-2 KLT 63

It is Not a right to:                                            

  • tend to total destruction of servient 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.

The word ‘Servient’ is derived from ‘Serve’

Literal meaning of the word ‘servient’ is – subordinate, subservient and subject to another. Etymologically it is derived from ‘servus’ (Latin) meaning – slave or servant.

Sec. 4 Explains ‘Servient Heritages’ 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.”

Thus, the land upon which the right is claimed is ‘servient’ land.

Methods of Acquisition of Easements

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

  1. easements by grant: express 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: that it is presumed to be acquired by peaceable and open enjoyment, without interruption for twenty years and
  4. customary easements: it is inferred to be 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’ in Law

The term ‘Grant’ is used to denote-

  • A generic term to mean ‘transfer’ of immovable property (e.g., sale, lease, gift etc.).
  • But, in judicial parlance, it will not be an absolute ‘transfer’ of property; and remain as a concession, permission, settlement, grant of easement etc., if it is used in place of ‘transfer’ of property.
  • Present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.
  • A technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
  • More than a licence (which does not create an estate or interest) and less than an outright and unconditional ‘transfer’ of property (similar to sale, gift etc.).

Characteristics of ‘Grant’

  • Usually it denotes a grant by deed.
  • It can be with or without consideration.
  • Unless specifically specified, it is creation of an ‘interest’ in property. 
  • As long as the conditions are fulfilled, grant is usually irrevocable.
  • Conditions can also be fixed to limit the period of grant.
  • Inferior interest, out of an interest retained by the grantor, e.g. the grant of a lease of land by the person holding the freehold. (Collins Dictionary of Law).

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’, as under:

  • • “…. A contract is an agreement which creates an obligation or a right in Personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth. An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu  (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

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.

Grant of Land by Government

The lands granted continued to be lands belonging to the Government and the grantees did not acquire absolute proprietary rights over the granted area under the grant. We can see the ‘conditions’ of deeds under which the grants were made by the Travancore government in the following decisions-

  • State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
  • Kannan Devan Hills Produce v.  The State of Kerala, AIR 1972 SC 2301
  • State of Kerala v. The Kannan Devan Hills Produce Co.,  AIR 1998 Ker 267

See also:

  • Padmanabharu Govindaru  v. The State of Kerala, AIR 1963 Ker 86
  • Padmanabharu Govindaru  v. The State of Kerala, AIR 1963 Ker 86 gives us “illuminative information as to the concept of ‘jenmom’” as pointed out in Harrisons Malayalam Limited v. State of Kerala, 2018 2 KHC 719; 2018 2 KLT 369 – though this decision was overruled by the larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez, AIR 1971 Ker 168 :1971 KLT 216).

“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 by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner.
    • It may be expressed, as is mentioned 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.” 

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).

Halsbury’s Laws – Prescription based on presumed grant

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).

Prescriptive Rights are Inchoate until title thereof 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. It is more so, in case of prescriptive rights which are inchoate (started; but, not full-blown) until title thereof is upheld by a competent 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.

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 (prescription) 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. 

Easement-by-Prescription – “Grant” or Acquisition by “Hostile or Notorious Act”? Is there incongruity?

The basis of every right of easement is theoretically a grant from the servient-owner. Grant is presumed in easement by prescription, from long and continued user. Is there incongruity (in easement by prescription) between ‘grant’ (on one part) and ‘acquisition’ of easement by “prescription” which suggests ‘adverse’ and ‘hostile or notorious’ user (on the other part)?

  • The answer is that the ‘grant’ herein is only a “presumption in law”; and virtually, easement by prescription has to be acquired by hostile and/or notorious acts.
  • It is clear from Sec. 12 and 15 of the Easement Act.

Tanba Nusaji Mahajan v. Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109 lays down the legal position accepted by Indian law, clearly, as under:

  • “The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Chapsibhai Dhanjibhai Danad vs Purushotram, 1971 AIR 1878, it was pointed out as under:

  • “In Ravachand v. Maniklal (ILR 1946 Bom. 184), it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight.”

In Raychand Vanmalidas vs Maneklal Mansukhbhai, (1946) 48 BomLR 25 it was held as under:

  • “In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else’s property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man’s property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right”.

Easement by prescription is ‘acquired’ by ‘prescriptive’ user. It should not have been by permission or agreement. In case of easement, law requires pleading and proof – that the right claimed was enjoyed independent of any express permission (Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103).

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 62 that the acquisition of easement by prescription may be classified under the head of implied grant; for, all prescription presupposes a grant.

“Implied Grant” – Two Different Legal Attributions in Law of Easements

  • First,  Theoretical basis of easement of necessity (and quasi easement). Both easement of necessity and quasi easement are dealt with in Sec. 13 Easements Act. Theoretically both these rights arise from implied approval of the servient owner; and therefore it is said to be “implied grant”. Though both easement of necessity and quasi easement have some common features, both are distinguishable and cannot go together.
  • Second, ‘Easement by grant’ that arises by implication. Grant of easement may be express or implied (that is arisen by necessary implication). An ‘implied grant’ is also governed under Sec. 8 of the Easement Act which deals with express grant. Easement by implied grant is not a right akin to ‘quasi easement’ (in Sec. 13 of the Easement Act). Implied grant is controlled by the (implied) terms and conditions of the grant; and an implied grant of way also will not be defeated by the emergence of an alternative way.

“Implied Grant” has as much efficacy as an express grant

  • In Hero Vinoth v.  Seshammal, 2006-5 SCC 545, it is laid down that the grant may be express or implied.
  • In Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, Annapurna  v. Santosh Kumar, AIR 1937 Cal 661; Ratanchand Chordia v. Kasim Khaleeli, AIR 1964 Mad 209 and  L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, it was held that the grant of a right of way which had necessarily to be implied on a true construction of the deed, had as much efficacy as an express grant.
  • It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the implied grant could be raised even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable.
  • Easement right by way of implied grant stated in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, is this ‘Easement by grant’ that arise by implication.

Alternative Way Will Not Defeat Claim of Implied Grant (Grant that arise by Implication)

The existence of alternative way will defeat easement of necessity and quasi easement. But, it will not defeat the claim of implied grant. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

Implied Grant and Easement by Prescription

  • Easement of Necessity and of Implied Grant (‘Easement by grant’ on implication) are sprouted on Analogous principles; because, both are based on some sort of ‘consent or permission’.
  • Implied Grants [both as (i) theoretical basis of Easement of Necessity and (ii) ‘Easement by grant’ on implication] are Antithetical to Easement by Prescription, because implied Grants are based on some sort of ‘consent, approval or permission’ and Easement by Prescription is arisen from prescriptive or hostile acts and it is to be ‘acquired’.

Easement by (implied) grant and quasi easement can be pleaded alternatively Easement by (implied) grant and quasi easement can be pleaded alternatively for it is permissible to raise inconsistent pleas (but  to confine either of the two at the time of evidence).

Easement of Necessity and Easement by Prescription are Antithetical (Easement of Necessity and of Implied-Grant (Grant that arise by Implication) are Analogous)

Easement by prescription is acquired by hostile and notorious acts; but user of it should be peaceable and open enjoyment, without interruption for twenty years. Therefore grant is presumed in easement by prescription.

Origin of Easements of necessity and Easement by prescription are different (Easements of necessity is based on implied grants. It is based on some sort of ‘consent, approval or permission’; but, Easement by Prescription is arisen from prescriptive or hostile acts). Hence, both these rights are antithetical to each other. In Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is observed as under:

  • “Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M.  Chellappan, AIR  2023 Mad 8, P.  Sadayan v. Arumugam, 2020-1 Mad LW 535).
  • See also: Joy Joseph v. Jose Jacob, 2010 (4) KHC 167; Kochu Nadar v. Kunjan Nadar Gabriel,2011 SCC OnLine Ker 2674;  Kallen Devi v. Kizhakkekoroth Raghavan, 2012 (3) KLT 142; Kamala Devi Amma v. Rajan, 2017 (4) KLJ 700;  Lilly v. Wilson, 2018 (1) KLT 772.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement of necessity’, for the following –

  • An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement.
  • The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land.
  • It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41.
  • Such an easement will last only as long as the absolute necessity exists.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement by grant’, for the following –

  • The grant may be express or even by necessary implication.
  • In either case it will not amount to an easement of necessity under Sec. 13 of the Act eventhough it may also be an absolute necessity for the person in whose favour the grant is made.
  • Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone.
  • If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability.
  • Such a right does not arise under the legal implication of Sec. 13.
  •  An easement by grant does not get extinguished under Sec. 41 of the Act which relates to an easement of necessity.
  • Where the parties clearly provided for a right of access to the backyard of the defendant’s house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors, it is a matter of contractual arrangement between them.
  • In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

  • Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way?  
  • Does a way  that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued with a higher width (so that cars can be taken), in the course of time,  for more than 20 years, will yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

  • “10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, to differentiate ‘easement of necessity and grant’. It is laid down –

  • Easement of necessity is depended upon absolute necessity.  Easement by grant does not depend upon absolute necessity of it. (It is the nature of the acquisition that is relevant.)
  • Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. Still, easement of grant is a matter of contract between the parties, and the parties are governed by the terms of the grant and not anything else; whereas easement of necessity is controlled under the legal implications of Sec. 13 and it is extinguished by the statutory provision under Sec. 41 (which is not applicable to easement by grant). The grant may be express or that arisen by necessary implication (therefore controlled by Sec. 8).
  • In either case (express grant or grant arisen by implication) it will not amount to an easement of necessity under Sec. 13 even when grant is an absolute necessity for the person in whose favour it is made.

Can Easement of Necessity and (Implied) Grant be Claimed Alternatively?

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, Easement of Implied Grant can be granted in a suit even though “Grant” alone was Claimed (Alternatively to easement of necessity). Facts of the case, in a nutshell, are the following –

  • Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
  • “Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
  • Dominant tenement had been separated from the servient tenement.
  • Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
  • The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
  • Defendant alleged that two alternate pathways existed. But, No evidence of any other way to A-schedule property (dominant tenement).
  • The High Court found that there was implied grant of ‘B’ schedule property as pathway.
  • The Supreme Court upheld the view of the High Court and the Trial Court and held as under:
    • “… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
      • (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
      • (ii) there was no objection also to the use of ‘B’ schedule property …”

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

  • “17. The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over ‘B’ schedule property by way of grant concurring with the findings of the trial court was sustainable.
  • 18. Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the ‘B’ schedule property stood confirmed. Further they contended that the alternative pathway on the western side of the ‘A’ schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over ‘B’ Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over ‘B’ schedule property stood unaffected by the said conduct.
  • 21. The High Court relied on a number of observations in Katiyar’s Law of Easement and Licences (12th Edition) on law with respect to “implication of grant of an easement.” It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
  • 23. Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both ‘A’ schedule and ‘B’ schedule properties and consequently there was no question of ‘B’ schedule property becoming the servient tenement and ‘A’ schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of ‘B’ schedule property as pathway as can be inferred from the circumstances, namely,
    • i) no other pathway was provided for access to ‘A’ schedule property in the settlement deed and
    • ii) there was no objection to the use of ‘B’ schedule as pathway.
  • 25. We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the ‘B’ Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in ‘A’ Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to ‘A’ Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of ‘B’ schedule pathway for access to ‘A’ schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the ‘B’ schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to ‘B’ schedule property of the plaint for its use as pathway to ‘A’ schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the ‘A’ schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the ‘B’ Schedule property of the plaint. It is an admitted position that both ‘A’ schedule and ‘B’ schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to Sree Swayam Prakash Ashramam & Anr vs. G.Anandavally Amma & Ors grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away.
  • In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K. Mukherjee, as His Lordship then was observed:
    • “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
  • 26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

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Published by sajikoduvath

2 Comments

  1. NIKHILDEV ALAPPATTU says:
    October 17, 2021 at 6:50 pm

    Sir, can we claim quasi easement on a right of way. A right of way will not satisfy continuous easement, as such, how can we claim Quasi easement on a right of way?

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    1. sajikoduvath says:
      December 5, 2021 at 12:53 am

      please see my blog with the caption: “Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant”

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