Implied Grant: A Valid Mode of Creation of Easement under Indian Law

Saji Koduvath, Advocate, Kottayam.

Abstract

  • Easement by ‘Implied Grant’ is a Well-Recognised Category of Easement.
  • Implied Grant is an Independent Right (Alternative Way will Not Defeat it).
  • Implied Grant can be Inferred from the Circumstances.
  • No Express Consideration is Required for the Creation of an Easement by Grant and Implied Grant.
  • Grant alone pleaded; Not, Implied Grant – The Supreme Court recognized and allowed the doctrine of Implied Grant (in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622).

Grant in Easements – Three Distinct Legal Connotations under Indian Law

  • 1. Theoretical Basis of Every Easementary Right is Grant. The foundation of all easementary rights under Indian law is the concept of grant by the servient owner. Such a grant may be express, as provided in Sections 8 to 12 of the Indian Easements Act, 1882; implied, based on the circumstances of transfer by severance, as contemplated in Section 13; or presumed, from long and continuous use, as recognised under Section 15.
  • 2. Implied Grant is a Judicially Recognized Easement. The common law in India recognizes implied grant—distinct from an easement of necessity—as a valid mode of acquiring an easement, even though it is not expressly codified under the Indian Easements Act. Such easements are inferred from the conduct of the parties or from the surrounding circumstances that indicate the intention to grant such a right. Indian courts have upheld this principle in several decisions, including Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, and L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307.
  • 3. Grant is inferred from Usage and Custom in Customary Easements: The Indian Easements Act also recognises customary easements, which are expressly discerned in Sec. 18 of the Act. In such cases, the right is not assumed to be founded on an express or implied grant in the conventional sense, but it is presumed as imbeded in the long and continuous reasonable use by a particular class of people within a specific locality. That is, the underlying presumption is that a reasonable grant must have once taken place, which now gives way to a valid and acceptable custom. An example would be a village pathway used by local inhabitants over a long time to form a custom. This principle has been upheld in several decisions, including Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; and Yohannan v. Mathai, 1991 (1) Ker LJ 605, 1991 KHC 571.

Easement by Implied Grant is a Well-Recognised Category of Easement

A grant may be either express or implied. The latter arises from the circumstances or conduct of the parties involved. Indian common law recognizes implied grant as a legitimate and acceptable mode for the acquisition of easements.

Sree Swayam Prakash Case: Supreme Court only Reaffirmed Previous Legal Position

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the term implied-grant to refer to an easement of grant ‘arising by implication’. It is seen that the Supreme Court has only reaffirmed the legal position previously upheld by several High Courts.

  • R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251,
  • L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307,
  • Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209,
  • Annapurna v. Santosh Kumar, AIR 1937 Cal. 661 (referred to in the decision),
  • Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834.

It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the plaintiff could found his case on an implied grant of easement 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.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, the existence of a right of way was inferred from the words of the relevant documents. It was observed as under:

  • “8. From all these documents Thiru D. Ramaswami Iyengar stated, it is clear that there is an implied grant of easement over the 30-ft. road. He cited Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209, wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least, the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is pity that the lower appellate Court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law.
  • 9. Annapurna v. Santosh Kumar, AIR 1937 Cal 661 also makes it clear that in law implied grant has to be inferred and lays down that grant can be presumed from the description of boundaries in the conveyance which mentions the same to be a common passage.”

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, the High Court also referred Kuppakkal v. Mathato n Chettiar, AIR 1924 Mad 834, where ‘a grant of an easement of way’ had been inferred from the words of a lease deed. 

‘Implied Grant‘ exists Independent of Sec. 13, Easement Act

R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, addressed the issue with clarity holding as under:

  • “Merely because the juristic basis of the easement of necessity (Section 13) is said to be an implied grant, the converse will not follow. In other words, where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity.”

K.S. Venkataraman, J., in this decision followed Peacock on Easements which reads as under:

  • “An implied grant, in the sense here used, is a grant which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.”

Easement by Implied Grant

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

  • “An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762).  It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swayam Prakash Ashramam v. N. Gopala Pillai on 9 May 2006. It was affirmed by the Supreme Court. The Kerala High Court held 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.”

Upholding the view taken by the Kerala High Court, the Apex Court held as under:

  • “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.”

Grant: No Express ‘Consideration’ Required; TP Act has no application

In B. Shyamkumar v. Francis George, 2009-4 CTC 750; 2009-7 MLJ 835, the Madras High Court held unequivocally as under:

  • “In case the easement was one acquired by grant, there was no question of consideration of the plea of easement of necessity.”

Gujarat High Court, in Hamir Ram v. Varisng Raimal, 1998 AIR Guj 165, has also held ‘grant’ can be gratuitous. It is said as under:

  • “Easement by grant may be created by oral agreement. It may be gratuitous. It may also be for consideration. If the grant was for consideration it hardly requires registration because mere creation of easement is not compulsorily registrable. …. Further, the …. parties never intended to transfer ownership in respect of the land which was set apart for the purpose of common passage. Hence, it cannot be held to be a sale deed of immovable property having value more than one hundred rupees. For this reason also the agreement does not require registration.”

The incorporeal right of Easement, by itself, cannot be a subject-matter of sale. Following two legal provisions are relevant in this matter –

  • 1. Sec. 6 of the Transfer of Property Act
  • 2. Sec. 8 of the Indian Easements Act.

Sec. 6 of the Transfer of Property Act

Easement cannot exist independently of the dominant tenement; hence always remains appurtenant to land (that is, attached to, and passes with, the ownership of the dominant tenement). Sec. 6 of the Transfer of Property Act reads as under:

  • “6. What may be transferred– Property of any kind may be transferred, except as provided by this Act or by any other law for the time-being in force;
  • a.… b….
  • c. An easement cannot be transferred apart from the dominant heritage.”

In Musunoori Satyanarayana Murti v. Chekka Lakshmayya, AIR 1929 Mad 79, it was held – ‘the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by Section 54 of the Transfer of Property Act, 1882, and therefore, provisions of the Transfer of Property Act has no application to the creation of easement. Section 6(c) of the Transfer of Property Act contemplates that an existing easement cannot be transferred apart from the dominant heritage. Therefore, prima facie, the deed of easement is a creation of easement and not a transfer of an existing easement. [See also: Saraswatibai Bishwambarlal Charity Trust v. Gopal Traders Pvt.  Ltd., 2023 BHC (AS) 34908 (Bom)]

Sec. 8 of the Indian Easements Act

Sec. 8 of the Indian Easements Act deals with express grant. It reads –

  • “8. Who may impose easements – An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.”

This section simply says that a person who has the legal right to transfer an interest (i.e. to sell, lease, or mortgage) in an immovable property (‘heritage’) is legally capable of creating (i.e., imposing or granting) an easement over that property.

It is also clear –

  • A life tenant (who has rights only for life) can grant an easement, but it ends with their interest.
  • A co-owner cannot impose an easement on the entire property without consent of the others.

Law does not bar ‘imposition’ of easement accepting consideration

Though the transfer of an easement is not recognized under the provisions of Sec. 54, TP Act, it is noteworthy – the law does not bar ‘imposition’ of easement accepting consideration as pointed out in Saraswatibai Bishwambarlal Charity Trust v. Gopal Traders Pvt.  Ltd., 2023 BHC (AS) 34908 (Bom).

It is also important – though the provisions of the Easements Act address the creation of easements by grant, it is without an explicit requirement for ‘consideration‘, though consideration is a necessary element of a valid agreement under the Indian Contract Act, 1872.

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without an express requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court observed that an ‘easement of grant is a matter of contract between the parties’ (and it may have its own consideration); and that ‘the grant may be either express or even by necessary implication’.

In State of Punjab v. Brig. Sukhjit Singh, 1993-3 SCR 944, the Supreme Court held as under:

  • “Payment of licence fee is not an essential attribute for the subsistence of a licence.”

It is pointed out in Prabhudas Damodar Kotecha and Anr v. Smt. Manharbala Jeram Damodar, AIR 2013 SC 2959, 2013-15 SCC 358, as under:

  • “In Black’s Law Dictionary, Seventh Edition, the word “license” means “a revocable permission to commit some act that would otherwise be unlawful” and the word “licensee” means “one to whom a license is granted or one who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit.“
  • Thus, it is seen that even in popular sense the word “license” is not understood to mean it should be on payment of license fee for subsistence of license. It also covers a “gratuitous licensee”, that is, a person who is permitted, although not invited, to enter another’s property and who provides no consideration in exchange for such permission.””

A Grant Deed with Consideration requires Stamp and Registration

In Subramanyam Chettiar v. Meyyammai Achi, AIR 1943 Mad 522, it was held that the consideration for the grant of the easement was a promise on the part of the grantee to do something of a like kind for the grantor; and the provisions of the Indian Registration Act were quite clear and it could not be doubted that such a deed required registration under Section 17 and so by virtue of Section 49 it could not be admitted as evidence of the creation of the easement.

Implied Grant is Independent Right ; Alternative Way will Not Defeat it

The existence of an alternative way will defeat easement of necessity and quasi-easement. But, it is pointed out in Sree Swayam Prakash Ashramam v. G. Anandavally Amma – alternative pathway ‘does not extinguish the right of easement of grant. It includes the claim of implied grant also. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, the Supreme Court held as under:

  • “28. … 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. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made.”

Easement by Implied grant and Quasi Easement can be pleaded Alternatively

Easement by (implied) grant and quasi easement can be pleaded alternatively, for they are not mutually destructive, and it is permissible to raise inconsistent pleas (but to confine either of the two at the time of evidence).

Implied Grant can be Inferred from the Circumstances

Grant alone Pleaded ; Not, Implied Grant – Apex Court, allowed Implied Grant

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:

  • “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.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

  • “… It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

Implied Grant and Quasi Easement

The question of implied grant arises only if the easement is apparent and continuous (that is, there should be a ‘formed road’)

  • Easement of Necessity: even if – no visible sign (not apparent); and even if – never used before (not continuous). E.g., a foot path to a landlocked plot.
    • But, there should have strict necessity.
  • Quasi Easement – must be visible (apparent) and must be functioning without repeated human action (continuous). E.g., water flowing through a pipe or a drainage system.
    • It is based on prior use before land division.
    • It requires only reasonable necessity, not strict necessity.

Implied Grant and Quasi-Easement

  • The question of implied grant (or quasi-easement) arises only if the alleged easement is:
    • Apparent (i.e., visible upon reasonable inspection), and
    • Continuous (i.e., functions without repeated human intervention)
  • E.g., Water flowing through a pipe, A drainage trench, Overhead electric cables.

Conclusion

  • It is the fundamental principle of easement law that every easement is, in theory, rooted in a grant.
  • Indian law clearly permits the acquisition of easements by implied grant. That is, an easement may arise by implication, and the intention to grant can be inferred either from the terms of the grant or from the surrounding circumstances.
  • Though easement by grant is (generally) said to have arisen from a ‘contract’, the provisions of law that deals with the matter do not specifically require ‘consideration’ in the creation of easements by grant.

End Notes 1

Customary Easements under S. 18 of the Easement Act

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 (long user) are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes the right to take water and earth from a tank, use water for cattle from a tank,  graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc.[Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and not a public right.

End Notes 2

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.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

  • “There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… … It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

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