Whether a person can get easement by grant as well as easement by prescription simultaneously?

An easement by grant is available to Madhavan Nair for access to his property which is on the eastern side of the plaint A schedule property. The learned counsel for the plaintiffs has submitted that as the son of Madhavan Nair the defendant can use the B schedule pathway to go to his father's house. The dominant tenement so far as the easement by grant is concerned is the property on the east of the A schedule property and not the property on the south of the B schedule pathway. An easement by prescription is claimed to keep open the opening in the southern wall of the pathway. But there is only one servient tenement which is the B schedule pathway which forms part of the A schedule pathway. An easement by grant and an easement by prescription are separate and distinct rights. No one can have a dual easement in the same servient tenement. The easement by grant is and has been the source of the right for the entry of Madhavan Nair or anybody under him into the B schedule pathway. When that be so, there can be no user of it as of right to prescribe an easement under Sec. 15 of the Indian Easements Act. The holder of an easement by grant cannot acquire an easement by prescription unless he abandons the former right. There is no such case for the defendant. He cannot simply contend for an easement by prescription for his father unless he pleads that the right of way by grant was abandoned and the user as of right was started. No such plea is raised. One cannot take an easement by prescription without dropping the easement by grant 20 years ago. The easement by prescription pleaded by the defendant is a baseless plea.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 686 of 2016 (F)

Decided On: 24.10.2019

 Reghuprasad  Vs. M. Raghunathan and Ors.

Hon'ble Judges/Coram:

A.M. Babu, J.

Citation: AIR 2020 Kerala 16

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What is distinction between easement of necessity and easement of grant?

At this stage it would be apposite to refer to the observations made by the Apex Court in the case of Hero Vinoth (supra). The Supreme Court has observed thus:

"25. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. 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 anything else. Easement of necessity and quasi easement are dealt with in Sec. 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 u/s. 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute, in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Sec. 13 nor is it extinguished by the statutory provision u/s. 41 of the Act which is applicable only to easement of necessity arising u/s. 13.

26. An easement by grant does not get extinguished u/s. 41 of the Act which relates to an easement of necessity. 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 Sec. 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 Sec. 41 is not applicable in such case."

17. In the instant case the plaintiffs vide compromise had granted the easement to the appellant-defendants to use 5 feet of the land for construction. Despite the same, the appellants made excess constructions. Thus, as per the law enunciated by the Apex Court, the 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 anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition, the parties will be governed by those conditions. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Second Appeal No. 153 of 1995

Decided On: 15.03.2019

Nandlal Ranchhodbhai Patel  Vs. Magan Bharatbhai Patel

Hon'ble Judges/Coram:

A.S. Supehia, J.

Citation: AIR 2019 Guj 141

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How to prove right of easement?

On considering the rival submissions and on close scrutiny of the evidence, it would reveal that the plaintiff did not adduce satisfactory evidence to show that he has acquired easement by prescription. An easement can be acquired by prescription under Section 15 of the Easements Act. Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly. This, he must do by showing a grant conferring an easement in express term or by necessary implication, or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquisition of the owner of the servient tenement that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation. Where an easement is claimed as a partenant to certain land, the burden is on the party claiming it to show that the original grantee of an easement was the owner of the land in question at the time of the grant. When the party claiming the easement had made prima facie showing of a prescriptive title, it is then incumbent on the owner of the survient tenement to show by sufficient affirmative proof that the use has been by virtue of a licence or permission or any other defence which would destroy the prima facie showing. On the other hand, where the servient owner sets up the defence of bona fide purchaser and proves the purchase, payment for, and ownership of the land, the burden then shifts to the claimant to show that such owner had actual or constructive notice of the easement before the purchase. The question whether a cultivator has access to his field through the field of another has to be decided on the basis of convenience and not on the basis of acquisition of right of way by prescription. A right of way may be acquired by prescription where the same has been peaceably and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. Thus, in the present case it is for the plaintiff to prove that the disputed path way was being used openly and peaceably for 20 years.

Bombay High Court

Tanba S/O Nusaji Mahajan vs Pandhari S/O Nusaji Mahajan on 5 May, 2004

Equivalent citations: 2004 (6) BomCR 782, 2004 (4) MhLj 109

Bench: S Kharche

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Who are necessary parties in suit for easement?

So far as the question of non-joinder of necessary parties is concerned, it is submitted on behalf of the petitioner that in the suit for mandatory injunction the person, i.e., Iman Kalyan Dey, son of Harinarayan Dey, was only impleaded as necessary party because he was only opposing the removal of staircase from the disputed pathway. In CWN (19) 1211 it is held, inter alia, that a dominant owner has no cause of action against servient owners who have neither caused obstruction nor raised any objection to the exercise of his right of easement. In a suit for declaration of his right of way he is not bound to make parties any servient owners other than those who have so obstructed or challenged his right. The said case relates to a suit for declaration of right of way, for restoration of the path to its 

former condition and for perpetual injunction. The said suit was decreed against which appeal was preferred with the contention that the suit ought to have failed as the owners of all the servient tenements over which the way is claimed have not been made parties to the suit. The instant case relates to removal of partial obstruction from the existing pathway in terms of a compromise decree which has been waived or relinquished. There is no denial of the fact that the said staircase is now in occupation of the tenants inducted by co- sharers. If such a staircase is to be removed affecting the rights of all the co-owners, they must be treated as necessary party and in such case in absence of all the co-owners no effective decree can be passed. From this point of view the learned Trial Court as well as the Hon'ble Division Bench has not committed any error apparent on the face of record which may be reviewed and the ratio in the aforesaid case is not applicable in the facts and circumstances of the case.1

Kolkata High Court (Appellete Side)

Smt. Subhra Sinha Roy vs Iman Kalyan Dey on 20 May, 2011

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