Saji Koduvath, Advocate, Kottayam.

Abstract

1. No Legal Basis for the Proposition based on “Completion of 22 Years user”

Para 5 of Section 15 of the Indian Easements Act, 1882 is the relevant provision.

It reads as under:

• “Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.”  (We see exactly similar wording in Sec. 25(2), Limitation Act also.)

“Each of the said periods of twenty years ” – Import

• Section 15 and 25 refer to various easements – right to light or air, way, watercourse, use of water, way etc.
• The period for prescription for each of the said easement is 20 years.

“Wherein the claim to which such period relates is contested”- Gist

• It simply refers to ‘cause of action’.

“Ending within two years”– Purport

• Para 5 of Sec. 15 lays down two essential conditions –
• Firstly, the suit must have been filed after perfecting the right of easement by 20 years’ user, and
• Secondly, the suit must have been filed within two years of cause of action; that is, obstruction.

On analysis, it can be seen that Para 5 of Section 15 is attracted in the following situation:

1. The cause of action for a suit under Section 15 (interruption to the enjoyment or its threat), must be after perfecting the right of easement by 20 years user.
2. Such cause of action can be one that arises on the next day of completion of 20 years. But, the suit must have been filed within 2 years of such cause of action.
3. There is no legal basis at all for the proposition based on “the completion of 22 years user” inasmuch as:
   • the cause of action (interruption or threat) contemplated in Para 5 is that arises after perfection of easement after completion of 20 years, and
   • the suit could be brought on that day of cause of action itself, or any day within two years.
4. In case, the suit is not filed within 2 years of the cause of action (interruption), by the person claiming the easement (dominant owner); his right thereon will stand barred.
5. ‘Obstruction’ up to One Year being not counted, as explained above (for the purpose of Sec. 15, in accordance with Explanation II), 2 years‘ limitation period (in Sec. 15 para 5) will begin only after the said period “for One Year“; and thereby period of ‘limitation’ will be 3 years.

See:

• Nachiparayan v. Narayana Goundan, AIR 1920 Madras 541,
• Syed Manzoor Hussain v. Hakim Ali Ahmad, AIR 1980 All. 389,
• Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216,
• Badariya Madrassa Committee v. Antony Robert Breganza: 2006-2 Ker LT 636;  
• Satya Devi Vs. Sansar Chand: 2007-50 AIC 678, CIVCC 2007-2 605, HLJ 2006-2 1392, 2007-5 RCR(CIVIL) 352, ShimLC 2006 2 431
• Marthoma Syrian Church v. Jessie Thampi, ILR 2020-2 Ker 713; 2020-2 Ker LT 653.

2. Does Cessation of Enjoyment (out of Obstruction) alone mark ‘Interruption’?

The 1^st part of Explanation II to Section 15 explains what is ‘interruption’. It reads as under:

• “Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant ….”

According to this part, there will be interruption if it is suffered –

• by actual cessation of the enjoyment, 
  • by an obstruction,
  • by the act of some person other than the claimant.

See:

• Eaton v. The Swansea Waterworks Co., [1851] EngR 559, 17 QB 267, 117 ER 1282.
• Prasad v. Patna City Municipality, AIR 1938 Pat 423;
• Anu Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216.
• Pankan Soman v. C.K. Manoharan, 2019-1 KHC 817,
• See also: Neil J. Creado v. Shah Abbas Khan, 2020-1 Bom CR 160,
• Kapilrai Brijbhukhandas v. Parsanben Dhirajlal, 1998-4 Guj CD 2941.

3. “Obstruction is submitted to or acquiesced in for One Year” (in Explanation II)

For the acquisition of easement by prescription on light, air, support, way etc., Sec. 15 Easement Act stipulates that it must have been enjoyed ‘without interruption’ for minimum 20 years.

While explaining what is ‘interruption’, 1^st part of Explanation II explains that ‘interruption’ is actual cessation of the enjoyment. The 2^nd part of Explanation II to Sec. 15 lays down –

• “Nothing is an interruption within the meaning of this section” (Sec. 15)
                 “… unless such obstruction is submitted to or acquiesced in
                 for one year after the claimant has notice thereof and
                 of the person making or authorising the same to be made”.

An Obstruction for a period up to One Year will Not be an ‘Interruption’

Analysing the above, on first principles, it can be said –

• An obstruction for a period up to one year will not be an ‘interruption’, or a bar to the ‘peaceable enjoyment’ (to claim easement by prescription).
• The aforesaid legal proposition (that an obstruction for a period up to one year will not prevent the perfection of easement by prescription), will apply with full vigour even if it is acquiesced by the dominant owner.

4. ‘Obstruction‘ up to One year (in the 20^th year, or earlier), Not Counted

It is also definite from the 2^nd part of Explanation II to Sec. 15 –

• The aforesaid period of obstruction up to one year, that will not stop the fulfilment of 20 years’ uninterrupted enjoyment (required for the perfection of easement by prescription), can be either in the end of 20^th year, or in any period earlier thereto.

5. Explanation II is an enabling provision

2^nd part of Explanation II (that is, an obstruction for a period up to One Year will not stand as an interruption) is an enabling provision that stands in favour of the dominant owner (claimant of the easement), for the following reasons –

• (1) ‘interruption’ is a (negative) matter that stands against (perfection of) easement by prescription, and
• (2) Explanation II lays down – if only the dominant owner acquiesced obstruction, for a period more than one year, then only it will operate as an ‘interruption’ against acquiring easement.
• Note: 1. It is clear that the pleading as to ‘interruption, for more than one year‘ has to come (in most cases) from the servient owner (to show no perfection of easement by prescription). Therefore, the burden of proving obstruction, for more than one year, will be upon the servient owner.
• 2. When this plea is raised by the servient owner-
• (i) he has to admit the enjoyment of the right claimed up to the date of obstruction; and
• (ii) if that plea is resisted by the dominant owner, saying that the period of obstruction is below one year, then it will be a question of fact.

6. Reckoning of one year period

Explanation II makes it clear –

• the period of one year is reckoned (1) from the date of notice of the obstruction by the claimant and (2) after getting the knowledge of the person who made the obstruction, or the person who authorised the same to be made.

This plea can be validly raised by the dominant owner (claimant of easement) in the following set of facts –

• The servient owner interrupts/obstructs a way by constructing a wall, a few months prior to completion of 20-year-period (for acquiring easement by prescription).
• Acquiescing the obstruction, the dominant owner (claimant of easement) purchases a nearby property and makes an (alternate) way.
• After completion of 20 years period (as regards the earlier way) and within one year of ‘acquiescing’ obstruction, the dominant owner can validly claim easement by prescription over that way invoking this provision.

7. Why No Limitation of 3 years as usually seen in Limitation Act?

‘Obstruction’ up to One Year being not counted (for the purpose of Sec. 15, as per Explanation II) in cases of acquiescence by the dominant owner (that is, in spite of notice of obstruction, no attempt made to remove it), 2 years’ limitation period (in Sec. 15 para 5) will begin only after the said period “for One Year“.

• That is, in cases where there is acquiescence to obstruction for a period up to one year, the period of ‘limitation’ will be 3 years.

Hence, in cases where there is acquiescence (up to one year) after perfection of the 20-year period, suit can be filed –

• on the next day of completing the ‘20-years-user’;
• or, within three years of obstruction.

But, it is obvious:

• If the dominant owner has made an attempt to remove obstruction (or interfered, in contrast to acquiescence), the limitation of two years will run from that date.

8. ‘Without Interruption’ in Section 15 is congruent to ‘Peaceable Enjoyment’

Explanation II to Section 15 explains ‘interruption’ as ‘actual cessation’ for ‘obstruction’. Therefore,

• ‘Without interruption’ in Section 15 is congruent to ‘peaceable enjoyment’; and actual cessation by obstruction’ alone negatives ‘peaceable enjoyment’.
• In other words, ‘peaceable enjoyment’ also stands on par with (similar to) the explanation to ‘interruption’ (that is, there must be actual obstruction, more than a verbal dispute, or legal proceedings).

See:

• Muthu Goundan v. Anantha Goundan, AIR 1916 Mad. 1001: 31 Ind Cas 528
• Varkey John v. Varkey Stanselose, AIR 1973 Ker 198,
• Eaton v. The Swansea Waterworks Company, [1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282.

In Tagore Law Lectures delivered by Peacock deduces, from the cases, that “peaceable enjoyment” means “enjoyment without interruption or opposition of the servient owner sufficient to defeat the enjoyment”, and “that obstruction or opposition to enjoyment must find expression in something done on the servient tenement or the legal proceedings.” 

• See: Bai Kurvarbai v. Jamsedji Rustamji Daruvala, 49 Ind Cas 963.

9. Two-years’-period in Sec. 15, and 20 years’ non-user under Sec. 47

Section 47 of the Indian Easements Act reads as under:

• “A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.
• A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.”

Section 47 Analysed

On analysis, it can be seen that Section 47 is attracted in the following situation:

1. There should be cessation of (perfected) easement, for an unbroken period of twenty years.
2. The involvement or interference of servient owner is not regarded in Section 47; abstention of the the person claiming the easement (dominant owner) alone is considered.

Sec. 15 may appear, on a first look, to be inconsistent with Sec. 47

Para 5 of Section 15 may appear, on a first look, to be inconsistent with Sec. 47; for, Para 5 of Section 15 says as to suit (on interruption) within 2 years; and Section 47 says as to cessation of easement after 20 years. That is, in cases where two years period in Para 5 of Section 15 is attracted, there will be no scope for applying 20 years’ period in Sec. 47.

Apparent Inconsistency (on Para 5 of Sec. 15 and Sec. 47) Solved

Para 5 of Section 15 speaks as to filing suits within two years of cessation of easement. Sec. 47 says as to extinguishment for non-enjoyment of twenty years. A combined evaluation of both these sections, leads to the following propositions:

• Para 5 of Section 15 says as to ‘interruption‘. It must be (by virtue of Explanation II to Sec. 15):
  • (a) by servient owner (or someone other than the claimant)
  • (b) after perfection of prescriptive right (20 years etc.) and
  • (c) within two years next before the institution of the suit.
• Section 47 pertains to extinguishment of perfected easement. It is attracted when there is:
  • non-enjoyment
  • for twenty years
  • by the dominant owner himself.
    • The involvement or interference of servient owner is not a factor in Section 47;
    • abstention of the dominant owner alone is considered.

This view is fortified by the observations in Partap Singh v. Hemraj, AIR 1929 All. 497, which read as follows:

• “The view taken by the lower Court that the suit should have been brought within two years of the cessation of the exercise of right is not correct. The lower Court appears to have overlooked Section 26, Lim. Act and Expln. 2, Section 15, Easements Act. Both these sections lay down that nothing is an interruption in a right of easement unless there has been an actual cessation of the enjoyment by reason of an obstruction by the act of some other person. The mere failure to exercise the right for a period of two years does not extinguish a right of easement. This view has been expressed in the case of Gopal Chandra Sen v. Bankim Behari [1920] 29 Cal LJ 421: 51 Ind Cas 372.”

10. Is Right of (Prescriptive) Easement set-down (or got Perfected) by a Decree Alone

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 (prescriptive) easement could not be said to be perfected until the right was set-down by a decree of court. 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 (Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, referred to).
• Traders and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

11. Easement Necessary Parties

Owners of properties who obstruct Easement alone are Necessary Parties

If easement right is claimed over a way that passes through various (servient) lands, the owners of properties who obstruct the way alone are necessary parties; and those who do not raise any obstruction are not necessary parties.

• Madan Mohan Chakravarthy v. Sashi Bhusan, AIR 1915 Cal 403  (19 Cal WN 1211);
• Lal Mohammad Biswas v. Emajuddin Biswas, AIR 1964 Cal 548;
• Varkey Joseph v. Mathai Kuriakose, (1992) 2 KLJ 135; (1992) 2 KLt 169.

12. 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

Sec. 15 Easement Act reads as under:

• Acquisition by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
• and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
• and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
• the right to such access and use of light or air, support or other easement shall be absolute.
• Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
• Explanation I.–Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
• Explanation II.–Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
• Explanation III.–Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
• Explanation IV.–In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
• When the property over which a right is claimed under this section belongs to Government this section shall be read as if, for the words “twenty years”, the words “thirty years” were substituted.
• Illustrations
•  (a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgment.
• (b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.
• (c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoyed the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

Sec. 47 Easement Act reads as under:

• Extinction by non-enjoyment. -A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.
• A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.
• Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:
• Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers, under the Indian Registration Act, 1877 (3 of 1877), a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.
• Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at other times, or between other hours, or for another purpose, does not prevent its extinction under this section.
• The circumstance that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.
• An easement is not extinguished under this section-
  • (a) where the cessation is in pursuance of a contract between the dominant and servient owners;
  • (b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or
  • (c) where the easement is a necessary easement.
• Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.
• Illustration: A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over Y and Z are not extinguished.

Section 25 in The Limitation Act, 1963

• 25. Acquisition of easement by prescription.—(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
• (2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
• (3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.
• Explanation.—Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.