Tag Archives: Easement of Necessity

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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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?

Read Blogs:

Will Easement of Necessity Ripen or Convert into a Prescriptive Easement?

Saji Koduvath, Advocate, Kottayam

Will Easement of Necessity and Prescriptive Easement Co-exist?

In other words-

  • Can easement of necessity be converted into easement by prescription by 20 years user?
  • Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to 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’?

‘Easement of necessity’ and ‘easement by prescription’ are mutually exclusive

As regards the question, whether it is possible to co-exist ‘easement of necessity’ and ‘easement by prescription’, the answer is in negative. It is for the following legal principles-

  • Easement of necessity (without which the land cannot be enjoyed) begins out of an implied grant or permission.
  • A prescriptive right cannot begin out of an implied grant or permission. (It arises by act of hostilities.)
  • E. by prescription cannot begin so long as e. of necessity exists or continues.
  • In law, easement of necessity begins out of an ‘implied’ grant; and easement by prescription begins out of an ‘inferred’ grant. Here, ‘implied’ grant implies “permission”; but, ‘inferred’ grant implies only a ‘legal connotation’, and never a “permission”.
  • A prescriptive right, in law, begins only out of an adverse user or on theory of the hostility (Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109).
  • Easement of necessity of a way will ‘continue’ up to (or, ends on) formation of another access (Section 41 of the Indian Easements Act).
  • The very claim by prescription and that of necessity are inconsistent (Nanjammal v. Marappa Gounder, 1998-1 MLJ 151; Periyanna Gounder v. Komarasami, 2000(1) MLJ 431).
  • The qualitative and quantitative requirement for the different kinds of easements are to a great extent mutually exclusive (Ibrahimkutty v. Abdul Rahumankunju,1992(2) Ker LT 775. See also: Devaki v. K Joshi, 2011, Kerala).
  • It, therefore, follows that a claim of easement of necessity and prescription cannot co-exist. Easement by prescription commences only when easement of necessity ends (Ibrahimkutty v. Abdul Rahumankunju,1992(2) Ker LT 775 . See also: Devaki v. K Joshi, 2011, Kerala).

E. of Necessity cannot ripen into e. by Prescription so long as Necessity Continues

In the light of the afore-stated legal principles, 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.”

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.”

Read Blogs:

‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Jojy George Koduvath.

Introduction

The right of every owner of immovable property to enjoy such property with lateral support from the neighbouring land, as a natural advantage arising from its situation, is a recognised civil right.  It is statutorily protected under Section 7 of the Easements Act, 1882.

Section 7 Easements Act, 1882

  • “Sec. 7.  Easements restrictive of certain rights:    Easements are restrictions of one or other of the following rights (namely):—
    • (a) Exclusive right to enjoy. —The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
    • (b) Rights to advantages arising from situation. —The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
  •  Illustrations of the Rights above referred to
  •        (a) ….  (d) … ..
  •        (e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.
  • Explanation. —Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
  •        (f) ….  (j) … .. “

Sec. 7 (e) says as to  the ‘extent of lateral support’ entitled to by the dominant tenement

The scope of the words, “not excavated and not subjected to artificial pressure”, triggered two conflicting ascertions. 

  • One view is that the right of lateral support is available only if the dominant tenement is in its natural condition, that is, without being excavated and subjected to artificial pressure.
  • The opposite view is that Illustration (e) says as to  the ‘extent of lateral support‘ entitled to by the dominant tenement, from the servient tenement. That is, the extent of lateral support is the quantum required “in its (dominant tenement’s) natural condition”.

From Illustration (e) of Sec. 7, with its Explanation, it is clear that the right recognised is:

  • (i) The “right of every owner of land” is the right available “in its natural condition” (that is, without being excavated and not being subjected to artificial pressure).
  • (ii) The right available will be the “support naturally rendered by the subjacent and adjacent soil of” the servient property.

Therefore, on analysis, it is clear that the Illustration (e) says as to the ‘extent of lateral support’ entitled to by the dominant tenement, from the servient tenement. That is, the extent of lateral support is the quantum required “in its (dominant tenement’s) natural condition”.

In other words, the extent or measure of lateral support to be rendered is the “support naturally rendered by the subjacent and adjacent soil” of the servient tenement, to the dominant tenement “in its natural condition”.

What is denied is the additional support from the servient property for making any additional construction or excavation in the dominant land.

It is also noteworthy that Sec. 7 does not say that entire right of lateral support will be lost if “such land” is not “in its natural condition”.

Lateral support ‘in its natural condition’ is Permanent

Right of lateral support to dominant tenement from servient tenement is an unalterable right.

The liability and measure of lateral support, is the quantum of lateral support required for the dominant tenement ‘in its natural condition’. It will not be lost for making any additional burden on dominant tenement (by any construction).

Kathiyar on the law of Easements and Licences (9th Edition), at page 189, reads:

  • “Even if the pressure upon the adjoining soil has been increased by the modern buildings on the surface, still an action will lie if the soil would have sunk if there had been no buildings thereon.” Quoted in: Nayarukandiyil Vinodan Vs. Rajimon, Mukundan: LAWS(KER) 2012 9 492.

Rulings on this matter:

  • Panchanan Mondal And Anr. v. Sm. Sulata Roy Mondal, AIR 1980 Cal 325
  • Ramakrishnan v. Davassy, 1988 (2) KLT 365
  • Narayanan v. Sankaran, 1971 KLJ 599.
  • Lonappan v.. Jacob:  2019-1 KLT 696   (though incorrect for inappropriately applying Sec. 15).

When Sec. 15 of the Easement Act is attracted

According to Sec. 7 of the Easement Act , if an ‘additional burden’ is made in dominant tenement, no additional lateral support will be available from servient tenement to sustain such additional burden. But, when the statutory-prescriptive-period (20 years) is over, such right can be claimed under S. 15 of the Easement Act.

When Sec. 13 of the Easement Act (Easement of Necessity and Quasi Easement) is attracted

Sec. 13 lays down two types of easement rights.

  • (i) Easement of Necessity – easement necessary for enjoying the subject of the transfer.
  • (ii) Quasi Easement – easement that is apparent and continuous and necessary for enjoying the subject matter.

Quasi Easements, pertain to Apparent and Continuous rights

Sec. 5 of the Easements Act defines apparent and continuous easements. An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.

Illustrations in Sec.13 refer to the following instances of easement of necessity:

  • passing over (way)
  • light which passes over windows
  • polluting the air, with smoke and vapours of  factory
  • gutters and drains common to the two houses
  • lateral support for  building
  • vertical support of an upper room on partition
  • right of way to house and grounds let for a particular business.

From Sec. 5, it is clear that claim for light, gutters and drains, lateral support, vertical support, etc. can be raised as quasi easements.

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