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Created: 07 Jul 2024 at 23:29

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

What is Easement? Does Right of Easement Allow to ‘Enjoy’ Servient Land After Making Improvements Therein ?

Saji Koduvath, Advocate, Kottayam.

Introspection

Easement is a mere ‘Privilege’ according to English Law.

  • But, Indian Law on Easement confers “limited interest” also in the land of another.  
  • It is clear from Explanation to Sec. 4 (Definition of Easement) of the Indian Easements Act, 1882.  The Explanation lays down that the expression “to do something” in the definition includes removal and appropriation of any part of the soil of the servient heritage, or anything growing or subsisting thereon (Profit-a-Prendre).
  • They are made definite by the Illustrations to various sections as shown under:
    • Illustn.-(d) of Sec. 4.
      • It speaks as to – Graze cattle,
      • take water and fish out from the tank, 
      • take timber from wood, 
      • take fallen leaves for manuring.
    • Illustn.- (b) of Sec. 22.
      • It states about cutting  thatching- grass. 
    • Illustn.- (a) of Sec. 24.
      • It refers to easement to lay pipes.

What is Easement?

  • Easement is a right possessed by the owner of a land (dominant land),
    • to use the land of another (servient land),
    • for the beneficial enjoyment of the dominant land.

Easement (सुखाधिकार) Does Not Confer Ownership or Possession

By virtue of easement –

  • No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
  • No Possession is obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335)  
  • No Substantive Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).

Easement is Well Recognised, and Circumscribed by Law

  • Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
  • It is to do, or to prevent to do, some specific thing.
  • It is to be exercised in a way least onerous to the ‘another’s land’.
  • It is not a right to build and enjoy.
  • The right gained cannot be enlarged.
    • That is, an easement of way to a particular (dominant) property cannot be extended to another property by the dominant owner; an easement for residential purpose cannot be enlarged for an industrial purpose.
  • Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

According to ‘Katiyar on Easements’:                                                                   

  • Easement is not a right to land or exclude owner.
  • It is not a right to permanent occupation. 
  • It does not confer exclusive right of user/enjoyment.
  • And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act defines Easements as under:

  • “An easement is a right
  • which the owner or occupier of certain land possesses,
    • as such,
  • for the beneficial enjoyment of that land 
  • to do and continue to do something, or to prevent and continue to prevent something being done,
  • in or upon, or in respect of, certain other land not his own.”

Salient Limitations of Easement under the Indian Easements Act

  • The owner of a land only ‘uses’or ‘enjoys‘ land of another (Sec. 31)
  • It is only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in Sec. 4).
  • It allows limited enjoyment of land, and advantages from its situation: S. 7
  • right be exercised in a way least onerous to ‘another’s land’: Sec. 22
  • Servient owner can secure full enjoyment; but, he should cause as little inconvenience: Sec. 24: 2017-2 KLT 63

It is Not a right to:                                            

  • tend to total destruction of servient tenement: S. 17 (2003 (1) KLT320)
  • make additional burden: S. 23
  • make constructions in, or cultivate upon: (2003 (1) KLT 320).
  • prevent servient owner to use: S. 27 : 2003 (1) KLT 320
  • enlarge purpose of, or accustomed, user: S. 28
  • substantially increase an easement: S. 29
  • prevent servient owner from obstructing excessive  ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
  • increase burden by making permanent change in do. tent: S. 43
  • capable of forming grant – No easement, if Not capable of forming grant (without document or registration): 1987 (2) KLT 1037.

No easement if:

  • right claimed is incidents of ownership.
  • servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

“Which the owner or occupier of certain land possesses”

Sec. 12 states that an easement is acquired by the owner of an immovable property. Sec. 21 lays down that an easement must not be used for any purpose not connected with enjoyment of the dominant heritage. It cannot be severed from dominant heritage.

‘Enjoyment’ of ‘Land’

Easements are limited to ‘enjoyment of’ Servient ‘land’ (and things ‘subsisting’, for land includes things permanently attached to earth).

“For the beneficial enjoyment of that Land.“

The most outstanding clause in the definition of easement is “Beneficial Enjoyment”.

Easements are primarily for the beneficial enjoyment of dominant heritage. Easement stands as part and parcel of dominant land. The definition says that an easement is a ‘right which the owner or occupier of certain land possesses, as such’. 

“As Such“

‘As such’ is used for emphasis to convey that easement is essentially connected to the dominant land, and it is inherently for the beneficial enjoyment of annexed/appertained (dominant) land; and not a right ‘in gross’ (for the benefit of individuals).

Profit-a-prendre – Indian Law Varies from English Law

Under English Law, an easement is a privilege alone; and profit-a-prendre (right to take) is not an easement. It does not allow “Removal and Appropriation” also. The Indian Easements Act purposefully used “to do something in or upon”, decisively avoiding, ‘to use’ or ‘to enjoy’; because, Indian Law allows ‘profit-a-prendre‘ [fishing, pasturing, grass-cutting for thatching, etc.]. It is allowed on Indian situations – but, without conferring substantial interest in the servient land. ‘Profit a predre’ is not appurtenant to any dominant land; and it is a right ‘in gross’ (for the benefit of individuals).

‘Beneficial Enjoyment‘ in Easement includes “Removal and Appropriation“

The Explanation to the definition of Easement (in Sec. 4) reads as under:

  • “Explanation – In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth;
  • the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity;
  • and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”

The word ‘Servient’ is derived from ‘Servant’

Literal meaning of the word ‘servient’ is – subordinate, subservient and subject to another. Etymologically it is derived from ‘servus’ (Latin) meaning – slave or servant.

  • “Dominant and Servient Heritages and Owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”

Thus, the land upon which the right is claimed is ‘servient’ land.

Easement is acquired; not arise out of ‘Express Permission’

Sec. 12, Easements Act states that an easement is acquired  (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:

  • 12. Who may acquire easements-An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
  • One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
  • No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

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. 

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

  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: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and
  4. customary easements: it is inferred that it is 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 existing in his own favour independently of all others.

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 is theoretically a ‘grant’ from the servient-owner.

  • It may be expressed, as in Sections 8 to 12 of the Act; or
  • it 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.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

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 is valid. In proper cases such consent or ratification may be presumed.

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).

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).

Extent of Easement – If used for several purposes, inferred for all purposes

Under the provisions of the Easements Act, the dominant owner cannot –

  • enlarge purpose of, or accustomed, user (S. 28) and
  • substantially increase an easement (S. 29).

In Cowling v Higginson (1838) 4 M & W 245, it was held as under:

  • “If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes.”

Extent of Easement

The courts in India took the stand that easement for one purpose can be changed to another, provided there is no additional burden (agricultural purposes might be used for the purpose of a factory provided no additional burden). See:

  • Jesang v. Whittle, (1899) ILR 23 Bom 595,
  • Manchersha Sorabji v. Virjivallabhdas, (1926) ILR 50 Bom 635,
  • Mahammad Beari v. Badava Beari, (1931) 61 Mad LJ 58.

Our Courts followed the principles laid down in the following English cases-

Williams v. James: [1867] LR 2 CP 577, held that ‘a right of way obtained by prescription for the purpose of carting hay to field ‘cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen’.

  • This decision is followed in Jotindra Mohan Mitter v. Probodh Kumar Dutt, AIR 1932 Cal 249, and it was held –
  • “In ascertaining the extent of the right of user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle laid down by Wills, J., in Williams v. James [1867] 2 C.P. 577 as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase.

Wimbledon and Putney Commons Conservators v. Dixon: (1875) 1 Ch D 362, held that ‘if a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built.’

  • This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
  • “In Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch D 362 it was held that the immemorial user of a right of way for all purposes for which a road was wanted in the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement. Where a road had been immemorially used to a farm not only for usual agricultural purposes, but in certain instances for carrying building materials to enlarge the farm-house and rebuild a cottage on the farm, and for carting away sand and gravel dug out of the farm, it was decided that those circumstances did not establish a right of way for carting the materials required for building a number of new houses on the land.”

Corporation of London v. Riggs (1880) 13 Ch. D. 798, held that a right of way of necessity is not a general right “for all purposes”; it is limited to the uses to which it had been put at the time when the action first arose or when the way of necessity was created.

  • This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
  • “Again, in Corporation of London v. Riggs (1880) 13 Ch.D. 798 the head-note runs as follows :- Where the owner of a close surrounded by his own land grants the land and reserves the close, the implied right to a way of necessity to and from the close over the land operates by way of re-grant from the grantee of the land, and is limited by the necessity which created it.”

The converse had been pointed out in Cowling v. Higginson, (1838) 4 MEE & W 245-

  • “If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes”. (See: Vasudeva Prabhu   Madhava Prabhu, AIR 1993 Ker 68.)

‘Easement’ is the right in the land of another

‘Easement’ under Sec. 4 of the Easements Act is the right in a land ‘not of his own’. See:

  • Vasudeva Prabhu   Madhava Prabhu, AIR 1993 Ker 68 (no easement in co-ownership property)
  • Venkateswaraswamivari Devasthanam v. Velidandla Kanakalakshmi, AIR 1976 AP 250
  • Sumanlal Bhagwandas v. Naginlal Bhagwandas, AIR 1967 Guj 87,
  • Raychand Vanmali-das v. Maneklal Mansukhbhai, AIR 1946 Bom 266
  • Marghabhai Vallavbhai v. Motibhai Mithabhai, AIR 1932 Bom 513.

Will Easement of Necessity 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 form 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.”

Existence of alternate way will End Easement of Necessity

Existence of alternate way, how ever inconvenient, will end Easement of Necessity.

  • See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622
  • Gouri Amma Krishnamma v. Seethalakshmi Amma, AIR 2004 Ker 75,
  • Thilakraj v. Sebastian, 2014-4 Ker LT 714, 2014 KHC 5042,
  • Rameshchandra Bhikhabhai Patel v. Sakriben,  AIR 1978 Guj 62.

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, it is held that an easement by grant would not get extinguished under Section 41 of the Act which relates to an easement of necessity.

Implied Grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

  • Though there could be no implied grant where the easements are not continuous and non-apparent, if 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, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
  • 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 dominant property and there was no objection also to the use of disputed way by the plaintiff.
  • 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.
  • A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
  • Only access to the property was through disputed pathway.
  • It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
  • The user was not obstructed for very long time.
  • There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
  • There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
  • The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
  • Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Easement of Necessity is limited to Barest Necessity, however inconvenient it is

In Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, our Apex Court held as under:

  • “An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”

Who has the Burden to show Alternate Way

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held that the plaintiff claiming easement of necessity or grant has only a primary burden to prove the absence of any alternate pathway.

  • “In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A’ schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. … The defendants have not entered the witness box to disprove the evidence led by the plaintiff.”

Who has the Onus to show Alternate Way Could Not be Used ‘As Of Right’

When the existence of alternate way is shown by the alleged servient owner of easement of necessity, the onus to prove that the way cannot be used “as of right” is upon the dominant owner. In Antony @ Anthappan v. George,  LAWS(KER) 2012-11-179 it is held by t6he Kerala High Court as under:

  • “11. When the existence of an alternate way is shown, the appellants ought to have shown that they could not use it as of right. That is because that is a matter within the knowledge of the appellants. The appellants did not adduce evidence in that line.”

The High Court then remanded the case giving the dominant owners an opportunity to adduce evidence to show that the alternate way was not one which they were entitled to use as of right.

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’, and not, Implied Grant,  our Apex Court, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, allowed Implied Grant observing as under:

  • “It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Prescriptive Rights are Inchoate until upheld by a Competent Court

No doubt, it is true, one can ‘acquire’ easement by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the such title is upheld by a competent court.

It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court. See also:

  • Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in: Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574; Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97;
  • D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
  • See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

Plea of Title and Adverse Possession – Whether Mutually Contradictory?

In Government of Kerala v. Joseph, AIR 2023 SC 3988, it is held as under: 

  • “21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 elaborated this principle as:
  • “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
  • This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (AIR 1996 SC 910, 1996 1 SCC 639 – two Judge Bench) –
  • “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
  • The Court in Uttam Chand (Sri Uttam Chand v.  Nathu Ram AIR 2020 SC 461) has reiterated this principle of adverse possession.”

(Note: Mutually destructive plea is impermissible: (2006) 12  SCC 233, AIR 2009 SC 2355).

Profit-a-prendre – Indian Law Varies from English Law

Explanation to Sec. 4 of the Indian Easements Act, 1882 reads as under:

  • “Explanation – In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”

From the above Explanation it is clear that easement includes appropriation of certain tangible material things or natural resources (Profit-a-Prendre). They are further made clear by the Illustrations to various sections as shown under:

  • Illustn.-(d) of S.4. It speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
  • Illustn.- (b) of S. 22. It states about cutting  thatching- grass. 
  • Illustn.- (a) of S. 24. It refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’; but, it includes:

  • limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
  • a right for (expressly-recognised) profit.

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right.  And, it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross also, i.e., for the benefit of individuals. On a close look, it can be seen that it is substantially related to ‘user’ of servient land.

“To do do something & ‘Removal and Appropriation‘

In State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281, our Apex Court held as under:

  • “By the Explanation to Sec. 4 the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon. A profit-a- prendre is therefore included in the definition of “easement” in Sec. 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute.”

“In or upon, or in respect of, certain other land not his own”

Easement is a right to do something in or upon land of another. Even if the easement involves ‘construction’, it should be of another; because, Sec. 4: Explanation reads: “land” includes also things permanently attached to earth.

If the subsisting-construction is made by, or it belongs to, dominant owner, no doubt, there will be no easement. [1987 (2) Ker LT 1037 (Bund); AIR 1915 PC 131 (Jetty); AIR 1971 SC 1878].

Easement Not Allows to ‘Enjoy’ After Making a Construction or Cultivation .

Easement is a Right for ‘enjoyment’ of things ‘subsisting’.  It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is clear from Sec. 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation. It is also clear from the Scheme of the Act as shown under:

  • S. 4 An easement is a ‘right which the owner or occupier of certain land possesses’ “as such”
  • S.4: Illustn. (d):  Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring .
  • S. 7: Only a right for limited enjoyment of (a) land & (b) advantages arising from its situation. (It is stated:  Easements are restrictions of (a) Exclusive right (of owner) to enjoy immovable property, (b) Rights to advantages arising from its situation)
  • S. 12 An easement is acquired by owner an immovable property.
  • S. 17: Not a right – to tend to total destruction of the servient tenement. (2003 (1) KLT 320)
  • S. 21 An easement must not be used for any purpose not connected with enjoyment of the dominant heritage.
  • S. 22: Exercise easement – least onerous to servient tenement (Illustn.- b: can cut thatching- grass, not to destroy plants)
  • S. 23: Not to make additional burden (Illus.- b: not to advance eaves; Illus.- d: not another pollution)
  • S. 24: Secure full enjoyment, but cause as little inconvenience.  Illus. (a) easement to lay pipes
  • S. 27: Servient owner is entitled to use – consistent with  easement
  • S. 28: Easements of  necessity, Right of way, Other prescriptive rights not to enlarge purpose, accustomed user etc.
  • S. 29: Dominant owner Cannot substantially increase an easement
  • S. 31: If excessive user – servient owner may obstruct the user.
  • S. 43: Permanent change in the dominant heritage and the burden increased – easement is extinguished

Customary Easements

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 are to be proved (Lachhi v. Ghansara Singh, AIR 1972 HP 89). In customary easements there need not be any ‘dominant tenement’. It is a right ‘in gross’ (to many). Customary easements also does not allow to ‘construct and use’.

Acquiring Customary Easement by One Person or a Fluctuating Body

Illustration (a) to sec. 18 runs as follows:

  • “By the custom of a certain village every cultivator of village land is entitled, as such, to grass his cattle on the common pasture. A having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the customs.”

A customary easement can be claimed by a family or an individual, and such claim need not be by a large community alone (R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206). To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right of uninterrupted user is quite different from setting up a local custom.

It is also pointed out that different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. Therefore, customary easement is unappurtenant to any dominant tenement, or it has no relation to the beneficial enjoyment of a dominant tenement as required in easement. A fluctuating body like the inhabitants of the locality cannot claim an easement as can be done in customary easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general (Brahma Nand v. Teju Ram, 2019-195 AIC 584).

Easement and Grant

The term ‘Grant’ is used to denote-

  • A generic term to mean ‘transfer’ of immovable property (e.g., sale, lease, gift etc.).
  • But, in judicial parlance, it will not be an absolute ‘transfer’ of property; and remain as a concession, permission, settlement, grant of easement etc., if it is used in place of ‘transfer’ of property.
  • Present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.
  • A technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
  • 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, 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 (in case of easement, no interest is created; but only a right of enjoyment). 
  • 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’. According to Salmond  a grant–

  • ” is an agreement“,
  • “creates a right“
  • is NOT “a right in Personam between the parties to it”,
  • examples – “grants of leases, easements, charges, patents, franchises, licences and so forth“.

Salmond distinguishes ‘grant’ from other legal concepts 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.)

A  Planter under a Grant from Government is not a Jenmi

  • Padmanabharu Govindaru  v. The State of Kerala, AIR 1963 Ker 86
  • Kannan Devan Hills Produce v.  The State of Kerala, AIR 1972 SC 2301
  • State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
  • State of Kerala v. The Kannan Devan Hills Produce Co.,  AIR 1998 Ker 267

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2024-07-07 23:29:20 +0000 UTC
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