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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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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Good legal article on valuation of easement by A.M. Ibrahim. FICA,

https://drive.google.com/file/d/0B5vWGtQ14k1BRnFDVnRtMzFkVGF4UmRHa2t4eDVvZEQweEI0/view?usp=sharing

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Whether person can be restrained from constructing building on ground that it will injures plaintiff by obstructing the view of his place of business?

  My view that such a right is not claimable is fortified

by an observation in Halsbury's Laws of England. In the

treatise, on the discussion of the topic "Nuisance" (Volume 78

paragraph 128), the following observations are made :

               "128. Interference with prospect, view or

               television reception. Where there is no

               infringement of a right to light, and where the

               act complained of is otherwise lawful, no

               action lies for the invasion of privacy by the

               opening of windows, or for the obstruction of

               a view or prospect, even though the value of

               a house or premises may be diminished

               thereby."

So, there is no legal reason for recognizing the right to prospect
as a natural right or as an easement. What is claimable as a

natural right under Section 7 of the Act is a right to light or air

passing vertically to the property. Even light or air received

horizontally is not a natural right. In Re Penny and South

Eastern Rly Co (1857) 7 E & B 660, it has been held that no

easement can exist in relation to the enjoyment by a land owner

of the prospect or view from his property or in relation to the

privacy of the property. Learned Author N.D.Basu on a Law of

Injunctions (Fifth Edition), based on certain English authorities

has stated that erection of a building will not be restrained

because it injures the plaintiff by obstructing the view of his

place of business.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                        MR. JUSTICE A.HARIPRASAD

                   FRIDAY,THE 26TH DAY OF JUNE 2015/

                                             RSA.No. 786 of 2011 ( )
                                                 ------------------------




            THAMBI CHERIYAN,S/O.CHIRIYAKKUNNY,
            KOLLANNUR HOUSE, MANGAD DESOM VILLAGE,
           Vs

            BABU,S/O.THOMAS, PUTHUKKARA VEEDU,
       

Citation; AIR 2015 Kerala 231

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Whether easementary rights can be claimed in respect of man made constructions?

 Section 7 of the Easements Act, 1882 deals with


natural rights. It says that easements are restrictions on one or

other of the two rights mentioned therein. Section 7 (a) of the

Act recognizes the exclusive right of every owner of immovable

property to enjoy and dispose of the same and all products

thereof and accessions thereto. Section 7(b) of the Act deals with

the right of every owner of immovable property to enjoy without

disturbance by another the natural advantages arising from its

situation. The illustrations added to the Section clarifies the

nature and extend of the natural rights. Natural rights are those

incidents and advantages, which are provided by nature for the

use and enjoyment of a man's property. It is to be distinguished

from an act of man or some artificial cause. So, the only

deduction possible is that the rights enumerated in Section 7 of

the Easements Act are claimable only in respect of immovable

properties in its natural situation. All these rights cannot be

extended to man made constructions. It is well settled that


natural rights are rights in rem and are inherent in land ex jure

naturae and they are not to be acquired by immemorial user.

Their continuous enjoyment is not essential for their continued

existence, though they are capable of being lost by adverse

enjoyment. (See, Subbarayudu v. Secretary of State (AIR 1927

Mad. 988) and Secretary of State v. Subbarayudu (AIR 1932

P.C 46).)

         13.        If the right to prospect or view is not a natural

right, then the next question probable is whether it can be

acquired as an easement ? It can never be acquired as an

easement for the primary reason that such a right does not fit in

the definition of easement in Section 4 of the Act. The

requirement in the Section for having dominant and survient

heritages may not be fulfilled in such a claim.
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                   FRIDAY,THE 26TH DAY OF JUNE 2015/

                                             RSA.No. 786 of 2011 ( )
                                                 ------------------------




            THAMBI CHERIYAN,S/O.CHIRIYAKKUNNY,
            KOLLANNUR HOUSE, MANGAD DESOM VILLAGE,
           Vs

            BABU,S/O.THOMAS, PUTHUKKARA VEEDU,
          

Citation; AIR 2015 Kerala 231

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How to prove easement of right of way by prescription?

Easements Act, 1882 - Section 15 -- Easementary right--Availability--Claim by plaintiff of Motorable access to her house through property of defendants by way of easementary right through prescription--No specific averment in plaint or in statement of witnesses showing that this access from land of defendant used as of right for last 20 years--Hence, claim of plaintiff not sustainable--High Court erred in law--And view taken by first appellate court correct.

In order to establish a right by way of prescription, 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 categorical pleadings that since what date to which date, one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses, it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years.

Supreme Court of India

Justiniano Antao & Ors vs Smt. Bernadette B.Pereira on 22 November, 2004

Bench: Ashok Bhan, A.K. Mathur

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Whether Tenant will get right of parking his vehicle in drive way as easementary right?

 The analysis of the aforesaid legal position would show that the tenant would be entitled only to such rights that would be reasonable necessary for enjoyment of the tenancy. The question is -- Can the requirement of parking a car in the drive-way be considered as an implied term or a right necessary for enjoyment of the tenancy? In our view the answer to the same is in the negative.

24. The right of parking a vehicle is a valuable right and even if the original date of execution of the lease agreement is taken into consideration, it would not be possible to conclude that such a right forms an integral part of the right of enjoyment of the tenanted premises. If it was so then the same would have been specifically provided in the lease agreement.

25. It is also relevant to state that the case set up by the appellants in para 23 of the plaint is that the landlord "allowed and consented" to the parking of vehicles by t he appellants in the drive-way. In view of this averment the appellants cannot contend that it is their easementary right since they themselves have stated that it was only a permission granted by the landlords. It may be added that in the written statement the factum of such permission is specifically disputed and this disputed question of fact will have to be finally settled after trial in the suit since admittedly their is neither any written document or other circumstances evidencing such permission.

26. If the allegation of the appellants of the permission by the landlord to park cars is even taken into consideration at its face value the same cannot be characterised as one which can be said to have matured into any right in favor of the appellants.

Delhi High Court

Shri Akesh Kumar Jain & Anr. vs Shri Harmeet Singh Bakshi & Anr. on 25 May, 2001

Equivalent citations: 2001 (59) DRJ 734

(2002)1 ren C J 116 Delhi

Bench: D Gupta, S K Kaul

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