Prescriptive Rights in Easements and Adverse Possession – Inchoate until Upheld by a Competent Court

Jojy George Koduvath, Kottayam

Introduction

  • Application of ‘Prescriptive Rights’ arise in two main branches of law-
    • 1. In ‘easement by prescription’ and
    • 2. In claims on ‘adverse possession’.
  • Prescriptive Rights are Inchoate until Title thereof is Upheld by a Competent Court.
  • Declaration is necessary for claiming rights on Adverse Possession; but, a declaration is not necessary for claiming rights on easement.

Prescriptive Easement Right Inchoate until upheld by a Competent Court

One can acquire the right of easement by prescription. But, prescriptive rights are said to be inchoate (started, but not full-blown) until 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.

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.
  • See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:

  • “It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)

In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:

  • In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).

Adverse Possession – ‘Inchoate’ (Here Indicates, Unadjudicated)

  1. Title ripens by operation of law; court only recognises it.
    • Under the Limitation Act, once the claimant establishes continuous, open, and hostile possession for 12 years, the true owner’s title stands extinguished and the possessor’s title is perfected. This occurs by operation of law, not by decree; a court does not create the title but merely declares it.
  2. ‘Inchoate’: Here indicates unadjudicated, not legally incomplete.
    • The description of adverse possession as “inchoate” is only a practical expression that the claim has not yet been judicially determined. It does not mean that the right is legally incomplete once the statutory period has run.
  3. The 12 years need not be immediately before the suit
    • It is therefore not necessary that the 12-year period should extend up to the date of the suit.
    • If title is already ripened earlier, the claimant is, in law, the owner from that point onwards.
    • Therefore, it is necessary to show the beginning of the 12-year period.
    • Later disturbances after perfection of title do not matter unless they amount to dispossession.

Read: Adverse Possession: Should Unobstructed Possession Subsist for 12 Years Immediately Preceding the Suit?

Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•   Adverse Possession: Dispossession and Knowledge
•   Adverse Possession: Admission of Title of Other Party
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ a Recognised Right in Indian Law?
•   Illegal or Fraudulent Regn. of Deed: No Adverse Possession
•   Does 12 Years’ Unobstructed Possession Precede the Suit?
•   Prescriptive Rights – Is it Inchoate until Upheld by Court
•   Sec. 27, Limitation Act: Right to Declaration and Recovery
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•  ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   Recovery Based on Title and on Earlier Possession
•   ‘Possession is Good Against All But the True Owner’
•   When ‘Possession Follows Title’; ‘Title Follows Possession’
•   Can a Tenant Claim Adverse Possession
•   Adverse Possession Against Government
•   Is Registration of a Deed, Notice to Govt. and Public?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions
•   22nd Law Commission  Report
•  How to Plead Adverse Possession? 

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Contract Act

Easement

Stamp Act & Registration

Will

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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