What is “period ending within two years next before the institution of the suit” in Easement by Prescription?

Saji Koduvath, Advocate, Kottayam.

Introspection.

1. Does 22 years’ user necessary – for claiming easement by prescription?
   • Answer: No.
2. What does the ‘two years’ period denote?
   • Answer: Suit must be filed within two years of cause of action. (Prior to the cause of action, easement by prescription must have been perfected – by completing 20 years’ user.)
3. Is it possible to file a suit on the next day of completing 20-year period?
   • Answer: Yes.
   • It is possible to file a suit on the next day of completing 20-year period, if cause of action (obstruction) has arisen on that day.
4. Does actual cessation of enjoyment of easement, out of an obstruction, alone amount to ‘interruption’?
   • Answer: Yes.
   • There must be actual obstruction, more than a verbal dispute. Or, there should be legal proceedings, opposing the user of enjoyment, initiated by the servient owner.
5. Does an obstruction from servient owner alone amount to ‘interruption’?
   • Answer: Yes.
6. Does 20 years (extinguishment) period under Sec. 47, stand independent from the two-years period in Para 5 of Sec. 15?
   • Answer: Yes.
   • Mere failure to exercise the right for a period of two years will not extinguish a perfected easement. To attract Para 5 of Section 15 there must be:
     • actual cessation of the enjoyment by the obstruction
     • from the servient owner himself.
7. Does actual cessation by obstruction alone negative ‘peaceable’ enjoyment (as in the matter of ‘interruption’)?
   • Answer: Yes.
8. Does the right of (prescriptive) easement set-down by a Court Decree alone?
   • Answer: Yes.

1. Does 22 years’ user necessary – for claiming easement by prescription

Para 5 of Section 15 of the Indian Easements Act reads as under:

• “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.” 

We see similar wording in Sec. 25(2), Limitation Act also.

Para 5 of Sec. 15 merely lays down an “essential condition” (Syed Manzoor Hussain v. Hakim Ali Ahmad, AIR 1980 All. 389) that the suit must be filed within two years of cause of action (after perfecting the right of easement by 20 years’ user).

• See: Nachiparayan v. Narayana Goundan, AIR 1920 Madras 541,
• Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216,
• Arjuna Udayar Vs. Manuswamy Naicker, 1999-1 CurCC 97,
• Badariya Madrassa Committee v. Antony Robert, 2006-2 KLT 636,
• Pashmina Co-Operative Hsg. Soc. Ltd. Vs. Subhash Amolakchand Gandhi, 2015-6 AIR BomR 29, 2015-4 All.MR 351,
• Syrian Church v. Jessie Thampi, 2020-3 Civ CC 327)

On analysis, it can be seen that Para 5 of Section 15 is attracted in the following situation:

1. The cause of action (interruption to the enjoyment or its threat), must be after perfecting the right of easement by 20 years user.
2. Such cause of action can be one arisen on the next day of completion of 20 years, or any length of time thereafter. In all such cases, the suit must have been filed on any day within 2 years of such cause of action.
3. There is no legal basis at all for the proposition based on “the completion of 22 years user” inasmuch as:
   • the cause of action (interruption or threat) contemplated in Para 5 is that arises after perfection of easement on completion of 20 years,
   • the cause of action can be one arisen on the next day of completion of 20 years (or any day thereafter), and
   • the suit could be brought on that day of cause of action itself (or any day within two years).
4. In case, suit is not filed within 2 years of the cause of action (interruption), by the person claiming the easement (dominant owner); his right thereon will stand barred.

• See: Badariya Madrassa Committee Vs. Antony Robert Breganza: 2006-43 AIC 624, ILR 2006-2 Ker 246; 2006-2 Ker LT 636;  
• Satya Devi Vs. Sansar Chand: 2007-50 AIC 678, CIVCC 2007-2 605, HLJ 2006-2 1392, 2007-5 RCR(CIVIL) 352, ShimLC 2006 2 431

2. Two-years’-period in Sec. 15, and 20 years’ non-user under Sec. 47

Section 47 of the Indian Easements Act reads as under:

• “A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.
• A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.”

Section 47 Analysed

On analysis, it can be seen that Section 47 is attracted in the following situation:

1. There should be cessation of (perfected) easement, for an unbroken period of twenty years.
2. The involvement or interference of servient owner is not regarded in Section 47; abstention of the the person claiming the easement (dominant owner) alone is considered.

Sec. 15 may appear, on a first look, to be inconsistent with Sec. 47

Para 5 of Section 15 may appear, on a first look, to be inconsistent with Sec. 47; for, Para 5 of Section 15 says as to suit (on interruption) within 2 years; and Section 47 says as to cessation of easement after 20 years. That is, in cases where two years period in Para 5 of Section 15 is attracted, there will be no scope for applying 20 years’ period in Sec. 47.

Apparent Inconsistency (on Para 5 of Sec. 15 and Sec. 47) Solved

Para 5 of Section 15 speaks as to filing suits within two years of cessation of easement. Sec. 47 says as to extinguishment for non-enjoyment of twenty years. A combined evaluation of both these sections, leads to the following propositions:

• Para 5 of Section 15 says as to ‘interruption‘. It must be (by virtue of Explanation II to Sec. 15):
  • (a) by servient owner (or someone other than the claimant)
  • (b) after perfection of prescriptive right (20 years etc.) and
  • (c) within two years next before the institution of the suit.
• Section 47 pertains to extinguishment of perfected easement. It is attracted when there is:
  • non-enjoyment
  • for twenty years
  • by the dominant owner himself.
    • The involvement or interference of servient owner is not a factor in Section 47;
    • abstention of the dominant owner alone is considered.

This view is fortified by the observations in Partap Singh v. Hemraj, AIR 1929 All. 497, which read as follows:

• “The view taken by the lower Court that the suit should have been brought within two years of the cessation of the exercise of right is not correct. The lower Court appears to have overlooked Section 26, Lim. Act and Expln. 2, Section 15, Easements Act. Both these sections lay down that nothing is an interruption in a right of easement unless there has been an actual cessation of the enjoyment by reason of an obstruction by the act of some other person. The mere failure to exercise the right for a period of two years does not extinguish a right of easement. This view has been expressed in the case of Gopal Chandra Sen v. Bankim Behari [1920] 29 Cal LJ 421: 51 Ind Cas 372.”

3. Does cessation of enjoyment, out of an obstruction, alone amount to ‘interruption’?

Explanation II to Section 15 of the Easements Act reads as under:

• “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 authorising the same to be made.”

• THEREFORE, under Explanation II, ‘interruption’ is suffered when there is:
  1. an actual cessation of the enjoyment
  2. by reason of an obstruction
  3. by the act of some person other than the claimant, AND
  4. submitted to such obstruction or acquiesced in the same for one year after the claimant has noticed it.

• See: Eaton v The Swansea Waterworks Co., [1851] EngR 559, 17 QB 267, 117 ER 1282.
• Prasad v. Patna City Municipality, AIR 1938 Pat 423;
• Anu Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216.
• Pankan Soman v. C.K. Manoharan, 2019-1 KHC 817,
• See also: Neil J. Creado v. Shah Abbas Khan, 2020-1 Bom CR 160,
• Kapilrai Brijbhukhandas v. Parsanben Dhirajlal, 1998-4 Guj CD 2941.

4. Does ‘interruption‘ (actual cessation by obstruction) stand conflict with ‘peaceable’ enjoyment

Explanation II to Section 15 explains ‘interruption‘ as ‘actual cessation‘ for ‘obstruction‘. Does it stand incongruent to ‘peaceable’ enjoyment stated in Section 15? Or, whether ‘actual cessation by obstruction’ alone refutes ‘peaceable enjoyment’?

The answer is that ‘peaceable enjoyment’ also stands on par with (similar to) the explanation to ‘interruption’ (that is, there must be actual obstruction, more than a verbal dispute, or legal proceedings).

In Tagore Law Lectures delivered by Peacock deduces from the cases that “peaceable enjoyment” means “enjoyment without interruption or opposition of the servient owner sufficient to defeat the enjoyment”, and “that obstruction or opposition to enjoyment must find expression in something done on the servient tenement or the legal proceedings.” 

• See: Bai Kurvarbai v. Jamsedji Rustamji Daruvala, 49 Ind Cas 963.

In Muthu Goundan v. Anantha Goundan, AIR 1916 Mad. 1001: 31 Ind Cas 528, it was observed that mere verbal disputes, which did not cause interruption or obstruction to the enjoyment, would not prevent the acquisition of prescriptive right of easement.

• See also: Varkey John v. Varkey Stanselose, AIR 1973 Ker 198,
• Eaton v The Swansea Waterworks Company, [1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282.

5. Is Right of (Prescriptive) Easement set-down by Decree of Court of Alone

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 (prescriptive) easement could not be said to be perfected until the right was set-down by a decree of court.

• 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 (Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, referred to).
• See also: Traders and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

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Sec. 15 Easement Act reads as under:

• Acquisition by prescription. 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 authorising 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 ¹[Government] this section shall be read as if, for the words “twenty years”, the words “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 enjoyed the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

Sec. 47 Easement Act reads as under:

• Extinction by non-enjoyment. -A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.
• A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.
• Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:
• Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the Indian Registration Act, 1877 (3 of 1877), a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.
• Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.
• The circumstance that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.
• An easement is not extinguished under this section-
  • (a) where the cessation is in pursuance of a contract between the dominant and servient owners;
  • (b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or
  • (c) where the easement is a necessary easement.
• Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.
• Illustration A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over Y and Z are not extinguished.

Section 25 in The Limitation Act, 1963

• 25. Acquisition of easement by prescription.—(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) 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, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
• (2) 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.
• (3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.
• Explanation.—Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or 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 authorising the same to be made.

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