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.
- 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).
- Therefore, easement by prescription of a way does not begin as long as easement of necessity (‘implied’ grant) continues.
- 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 (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:
- Easement Simplified
- What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
- One Year Interruption or Obstruction will not affect Prescriptive Easement
- What is “period ending within two years next before the institution of the suit”?
- Will Easement of Necessity Ripen or Convert into a Prescriptive Easement?
- Is the Basis of Every Easement, Theoretically, a Grant
- Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
- Easement by Prescription – Grant or ‘Acquiring’ by “Hostile Act”
- Can an Easement-Way be Altered by the Owner of the Land?
- Village Pathways and Right to Bury are not Easements.
- Custom & Customary Easements in Indian Law
- Prescriptive Rights in Easements and Adverse Possession – Inchoate until Title thereof is Upheld by a Competent Court
- ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition