Easement by Prescription – Grant or ‘Acquiring’ by “Hostile Act”

Jojy George Koduvath.

Abstract

Abstract
•➧  The basis of every right of easement is theoretically a grant.
•➧  In easement by prescription, Easement is ‘acquired’ by ‘adverse/notorious’ user.
•➧ Is there an incongruity?
•➧  The answer would be that the ‘grant’ herein is only an (abstract) “presumption in law”; and virtually, easement by prescription is acquired by hostile and/or notorious acts.

Methods of Acquisition of Easements

The Indian Easements Act, 1882 deals with different methods of acquiring easements. They are (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) –

  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 that exists in his own favour, independent of all others.

‘Grant’ in Law

Grant is a generic term to mean ‘transfer’ of rights in immovable property (e.g., sale, gift, lease, easement etc.). It also indicates, present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.

  • But, in judicial parlance, the word ‘grant’ will not manifest the idea of an absolute ‘transfer’ of property; and it stands for a concession, permission, settlement, grant of easement etc. Grant, in its very basic-sense, connotes or imply a contract between two parties.
  • It is also a technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
  • Grant is 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, dedication, 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 will be valid. In proper cases such consent or ratification may be presumed.

Grant of Land by Government

The lands granted continue 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. This decision 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, orit 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).

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. 

Prescriptive easement is created by adverse user, by the hostile use

It is held in Kantaben Parsottamdas v. Ganshyambhai Ramkrishan Purohit, AIR 2022  Guj  146, as under:

  • “15. It is pertinent to note that the prescriptive easement is created by adverse user, by the hostile use to the title of servient owner, whereas easement of necessity is based upon the grant either express or implied.”

Easement by Prescription – ‘Acquires’ by “Hostile or Notorious Act”

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.

Easement-by-Prescription – ‘Grant’or Acquisition by “Hostile or Notorious Act”

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 would be 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.

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.”

Read Blog: One year ‘Interruption’ will not affect Prescriptive Easement

Should Date of Beginning of 20 Years be pleaded?

In Justiniano Antao v. Bernadette B. Pereira, (2005) 1 SCC 471, it was pointed out as follows:

  • “In order to establish a right by way of prescription to the detriment of the other party, one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years.”

Kerala High Court, in Soman Nair v. Manoj Kumar, 2014 (P. Bhavadasan, J.) distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

  • “12. A reading of the decision reported in Justiniano Antao’s case (cited supra) would reveal that the dictum has to be read in the context of facts of the case. That was a case where the Apex Court found that till 1984, the claimant was using another way and only thereafter the claim over the way through servient tenement was made. A vague assertion had been made in the said case that the pathway has been used for a long time. It was under those circumstances, the Apex Court had occasion to hold as mentioned above.
  • 13. In the case on hand, the definite pleading as could be culled out from the written statement and counter claim is that defendants as well as their predecessors-in-interest have been using the pathway in question for a long time in fact for more than 30 years and this is only means of access  to their property.”

Pappachan v. Alex, ILR 2023-3 Ker 523; 2023-5 KHC 10, distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

  • “24. In Justiniano Antao (supra) there was no pleading by the plaintiff that she used the pathway in question for a period of 20 years. Holding that in the absence of such a pleading which is elementary and essential to claim a prescriptive easement right, the Apex Court held that the date from which the right of way was started to use should have been pleaded. The pleadings set forth by the appellants in this case certainly constitute sufficient pleadings to claim easement by prescription. It is true that they did not plead as to from which date they started using that pathway. They, however, pleaded that for the last more than 35 years they have been using that pathway. In the light of such a specific pleadings the law laid down in Justiniano Antao [(2005) 1 SCC 471] does not disentitle the appellants from claiming the relief.”

Will Easement of Necessity  (implied grant) 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 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.”

Conclusion

Easement is a legal right engrossed in the Easement Act. The doctrines propounded in common law as well as fundamental principles of ‘justice, equity and good conscience’ guided the formulation of the substratum of the Act. (These principles being legislated in law, all concerned are bound by the same.) The codified Indian law of Easement enunciates that easement by prescription is ‘acquired’.

Read Blog: Will Easement of Necessity Ripen or Convert into a Prescriptive Easement?

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