Saji Koduvath, Advocate, Kottayam.

Relevant provisions of the Indian Easements Act, 1882:

• Sec. 22. Exercise of easement. Confinement of exercise of easement.
• The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.

• Sec. 23. Right to alter mode of enjoyment.
• Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage.
• Exception.–The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage.

• Sec. 24. Right to do acts to secure enjoyment.
• The dominant owner is entitled, as against servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
• Accessory rights.–Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.

• Sec. 27. Servient owner not bound to do anything.
• The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient.

Applying ‘First Principles’, P. Bhavadasan, J., of the Kerala High Court held in Thilakraj v. Sebastian, 2014(4) Ker LT 714, that the servient owner can be allowed to re-align the way over which the dominant owner has successfully established right of easement.

Analyzing various provisions of the Indian Easements Act (mainly Sec. 22 – which enables the servient owner to specify the route to confine it to a determinate part), observed that nothing prevents the court from directing that the pathway be changed along the boundary of the servient tenement which would render justice to the parties and would not affect the rights of the dominant owner.

P. Bhavadasan, J. observed as under:

• Easement is a precarious (uncertain) right.
• Law does not usually favour restricted use of one’s own property. However, the law relating to easements creates a fetter (restraint) on the exclusive and absolute use of property by its owner. The said law creates certain right in favour of a person to put to use the property belonging to another person.
• As a corollary the said law also insists that such exercise of enjoyment of right by the dominant owner must be least onerous to the servient owner.
• The Indian Easements Act is of the year 1882. It has not undergone any major changes. As has been observed by the Apex Court in relation to the plea of adverse possession, it is felt that some rethinking is necessary in relation to which the rights conferred as per the Indian Easements Act are concerned.
• It is said “Common law is a living system of law reacting to new events and new ideas and so capable of providing the citizens with a system of practical justice relevant to the time in which they live”.
• There have been considerable changes in all spheres of life. Considering the vast changes that have occurred in both social and cultural fields, it is only proper that the courts adopt a practical approach to meet the current demands of the society.
• It will not be imprudent to observe that some of the provisions of Indian Easements Act (Act 5 of 1882) require changes.
• It is said that the law is an instrument of social engineering and social changes.
• Right to property is a valuable constitutionally recognized right.
• Law cannot be rigid and remain static. It has to be dynamic and has to device method within permissible limits to modulate relief to suit the present need and ensure that justice is rendered to all.
• The courts will have to adopt such means to render justice to people without doing violence to statutory provisions.
• Even assuming that in the case on hand, S. 22 of the Easements Act is not available to the appellants that cannot tie down the hands of the court from granting relief to them while at the same time safeguarding the interest of the respondent also.
• In fact, it is felt that it is the bounden duty of the court to rise to the occasion and find out reasonable grounds to grant relief.
• (If the dominant owner resists the change) the attitude … is like Shaylock insisting for his pound of flesh.  
• If the plea was one of easement by necessity, surely with the coming into existence of another suitable alternate way, the dominant owner’s right to continue to use the present pathway comes to an end here.
• The principle that emerges from the above foregoing discussion is that there can be no impediment for the court to determine what is just and reasonable and grant decree accordingly.
• (Because of) the way, … a considerable portion of the property will have to be kept idle. That certainly cannot be the object and purpose of the Act.
• Section 22 of the Indian Easements Act, as already stated, enables the servient owner to specify the route.
• One fact is very clear. The exercise of right of easement by dominant owner is subject to the condition that it imposes least burden on the servient tenement owner and does not interfere with the right of enjoyment of his properties subject to the right of the dominant tenement owner.
• There can be no fetter on the court from making adequate provisions for the exercise of respective rights of both the parties.
• Price of land is skyrocketing day by day. Every inch of land has become substantial asset. Unlike in the olden days, we seldom find property left open and uncared for. It is therefore necessary to strike a balance of the two rights namely that of dominant tenement owner and servient tenement owner.
• In the facts and circumstances of the case, it will be imprudent and unwise for the court to keep its hands tied and in fact one could even say that the court will be failing in its duty of rendering justice if it does not extend a helping hand to the servient owner without affecting the rights of the dominant tenement owner.
• A court needs to innovate, experiment and if necessary find out means to render justice to all.
• When the legislature remains passive to archaic law which may not accommodate the social, cultural and political changes in the society, a duty is cast upon the court to take adequate and necessary steps and device methods to resolve the disputes satisfactorily.
• Under the above circumstances and in the light of necessity to development laws to respond to the needs and necessities of the society, it is felt that the appellants be allowed to re-align the way over which the plaintiff in the suit has successfully established prescriptive right of easement.