Whether a party can claim the right of easement by their partition deed if their ancestors did not have easement right?

Hence, I find that the alleged easement right was not proved either by the defendants 1 and 2 or by their vendors. While things be so, they cannot create by way of deed of partition entered between the defendants themselves in the year 1978, when no such right was existed with the ancestors of the defendants as could be seen from Ex. B3. The defendants are not disputing the title of the plaintiff in S. No. 88/3 as their vendors(defendants) were parties to the earlier partition. Thus, as such when there is no reference with regard to the alleged cart track in the plaintiff's property in those parent documents, the defendants herein cannot claim easement right by way of grant.

{Para 35}

38. Hence I find that the decision rendered by Justice Dr. G. JAYACHANDRAN reported in MANU/TN/0413/2019 : 2019 (5) CTC 80 [K. Kalianna Gounder and another v. Sundararaj and another] is squarely applicable to the facts and circumstances of this case, wherein it is held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act. It has been further held that easement right is statutory right subject to the conditions and pre-requisite conditions and the burden of prove as stated in the Indian Easement Act and it is "neither can be created nor be destroyed by reading of recital in document to the convenience of the parties". If any such recital has been inserted as to the existence of any such right in the nature of easement right, which are liable to be rejected at the threshold since parties cannot conceive easement right upon themselves on some bodies land, which is the crux and nucleus of the right of easement.

IN THE HIGH COURT OF MADRAS

S.A. No. 302 of 2012, M.P. No. 1 of 2012 and C.M.P. No. 411 of 2022

 Nallammal and Ors.  Vs. Sengoda Gounder and Ors.

Hon'ble Judges/Coram:

R.M.T. Teekaa Raman, J.

Decided On: 25.03.2022

Citation: MANU/TN/2258/2022

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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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Whether easement of necessity can be claimed independently?

Suit for declaration, injunction and also for mandatory injunction seeking directions to the Respondents to remove the obstruction in enjoyment of their right of way and use of the door. The provisions of Order 22, Rule 2 of the Civil Procedure Code, 1908 and submitted that looking to the nature of the reliefs in the suit the right to sue of the Petitioners would survive even after the death of Plantiff and they have every right to proceed with the suit further. The abatement of proceedings takes place in its own force by passage of time. No specific order for abatement was envisaged. The order recording dismissal of the suit as abated or it was dismissal in it was own force by passage of time was no decree as specified by Section 2(2) of Civil Procedure Code, 1908 inasmuch as it does not imply formal expression of an adjudication on merits. Right of easement or easement of necessity was an independent and separate right and every individual can claim it independent of others. Merely because one or few individuals, amongst several, have either not claimed such right or have claimed but their suit has been dismissed for default or as bated, does not mean that the other persons similarly placed would loose their right to file an independent suit or to proceed with their suit claiming such right. The order impugned was quashed and set aside. Hence petition allowed.

Bombay High Court

Baba Hari Mohite And Ors. vs Dinkar Ramchandra Sapkal And Ors. on 29 September, 2006

Equivalent citations: 2007 (3) BomCR 835 , 2007(1)ALLMR676,

Bench: B D.B.

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Whether existence of an alternative track, though inconvenient, shall defeat claim of easement of necessity?

Property - Right of easement of necessity - First Appellate Court held that Appellant-Plaintiff could not restrain Respondent-Defendant from passing over north east open space to have access to northern public lane - Hence, this Appeal - Whether, Defendant could establish that on partition of plot between Smt. Ashakkabai and Smt. Mankuwarbai he had right to have access to northern public lane through open space in front of house of Plaintiff by way of easement of necessity or under any express grant - Held, case set up by Defendant of acquiring right of passage over Suit site by grant was not established - Further, there being public lane along southern boundary of Defendant's house, no case of easement of necessity could be made out - Defendant tried to set up case that since time of partition it was decided between parties to use northern open space or in other words northern side which was apart from fact that none other than Defendant himself admitted in his written statement that there was bamboo mat fencing dividing properties - Hence, Defendant had failed to demonstrate that property in his possession could not at all be used unless he was allowed to have access through Suit site - Thus, easement of necessity much less absolute necessity had not at all been proved by Defendant - Therefore, Defendant had failed to prove that he acquired right over Suit site by way of prescription or there was absolute necessity to pass over same for having access to his property and neither express nor implied grant in his favour had been established - Appeal allowed.

"Existence of an alternative track, though inconvenient, shall defeat claim of easement of necessity, as necessity shall be absolute."

Bombay High Court

Gulabrao vs Pandurang on 27 July, 2012

Bench: M.N. Gilani

Citation;2012(7) ALLMR 191

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Easement by prescription and easement by necessity whether both can be acquired by plaintiff ?

Learned   Counsel   for   the   appellant   referred   to   the 
ruling   in   the   case   of  Manikrao   Narayanrao   Bhoge   and 
Others vs. Maheshkumar s/o. Bansilal Vyas and another 
reported in 2011 (5) Mh.L.J. 345 to argue that Sections 13 
and   15   of   the   Easements   Act   need   to   be   read   together. 
Section 13 of the Easements Act provides for easement of 
necessity and quasi­ easement, while Section 15 of the Act 

provides   for   easement   by   prescription   which   are 
independent provisions.  If the parties are legally entitled to 
exercise easementary right under both the provisions, it is 
open for them to do so.  Thus, when the plaintiff produced 
evidence in the present case in the trial Court regarding his 
right of way enjoyed by him and his predecessor in respect 
of   the   approach   way   to   the   suit   land   for   carrying 

agricultural   implements,   bullockcarts   etc.   and   when   the 
trial Court found the evidence sufficient so as to pass decree 
in favour of the plaintiff after recording conclusion that the 
defendant had obstructed right of way pleaded and proved 
by the plaintiff, the first Appellate Court was unnecessarily 
swayed away by argument on behalf of the defendant to 
deny legal right declared by the trial Court in favour of the 
plaintiff   on   the   basis   of   prescriptive   easementary   right. 


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.9 OF 2007
Uttamrao Tulshiramji Madghe

 V
Shrawan Natthuji Bagul (Pagtil),

      CORAM     :  A.P.BHANGALE,  J.
      DATE         :  19.4.2014.

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