A PROJECT

On

Revival of Easementary Right

[Submitted as partial fulfillment of requirements for B.A LL.B (HONS) integrated course]

Submitted by: Submitted to:

Shivam Meena Ms. Alaknanda Rajawat

Roll no. 34

Class- semester VII, B

University Five Year Law College,

University of Rajasthan, Jaipur

August, 2019
 Declaration

I Shivam Meena hereby declare that this project titled ‘‘Revival of Easementary Right’’ is based
on the original research work carried out by me under the guidance supervision of Ms.
Alaknanda Rajawat.

The interpretations put forth are based on my reading and understanding of the original texts.
The books, articles and website etc. which have been relied upon by me have duly
acknowledgment at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma has been
conferred on me before, either in this or in any other university.

Date: Signature
[SHIVAM MEENA]
Roll No. 34
Semester VII
 Acknowledgement

I have written this project titled ‘‘Revival of Easementary Right’’ under the supervision of Ms.
Alaknanda Rajawat, Faculty of University Five Year Law College, University of Rajasthan,
Jaipur. Her valuable suggestions herein have not only helped me immensely in making this work
but also in developing an analytical approach this work.

I found no words to express my sense of gratitude for Director Dr. Sanjula Thanvi, and deputy
director Mr. Manoj meena and Mr. Abhishek tiwari constant encouragement at every step.

I am extremely grateful to librarian and library staff of the college for the support and
cooperation extended by them from time to time.

Shivam meena
 Table of Contents

Page no.

Declaration (ii)

Acknowledgement (iii)

Abstract (vi)

Chapter – 1

An Introduction

1.1 Introduction 1

1.2 Research Methodology 2

1.3 Hypothesis 2

1.4 Scope of Study 2

Chapter – 2

2.1 Definitions 3

2.2 Introduction 4

Case laws 9

Conclusion 11

Bibliography 12
 CHAPTER 1

An Introduction

1.1 Introduction

An easement is a right which the owner of a property has to compel the owner of another
property to allow something to be done, or to refrain from doing something on the survient
element for the benefit of the dominant tenement. For example - right of way, right to light , right
to air etc.

1.2 Research Methodology

The researcher has used doctrinal method and relied only upon secondary sources of data to
prepare this project.

1.3 Hypothesis

An easementary right is almost like a privilege, depriving which the owner of one tenement has a
right to enjoy regarding that tenement in or over the tenement of another person, by reason of
which the latter is obliged to suffer or abstain from doing something on his own tenement for the
advantage of the former.

1.4 Scope of Study

In this project the emphasis is laid on “An easement is a nonpossessory right to use and/or enter
onto the real property of another without possessing it. It is "best typified in the right of way
which one landowner, A, may enjoy over the land of another, B”.
 CHAPTER 2

2.1 Definitions
1
The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882.
According to the provisions of Section 4, an easementary right is a right possessed by the owner
or occupier of the land on some other land, not his own, the purpose of which is to provide the
beneficial enjoyment of the land. This right is granted because without the existence of this right
an occupier or owner cannot fully enjoy his own property.

It includes the right to do or continue to do something or to prevent or to continue to prevent

something in connection with or in respect of some other land, which is not his own, for the
enjoyment of his own land.

The word ‘land’ refers to everything permanently attached to the earth and the words
‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any necessity. The
owner or occupier referred to in the provision is known as the Dominant Owner and the land for
the benefit of which the easementary right exists is called Dominant Heritage. Whereas the
owner upon whose land the liability is imposed is known as the Serviant Owner and the land on
which such a liability is imposed to do or prevent something, is known as the Servient Heritage.
2
Easementary right must possess the following essentials:

Dominant and survient tenement

Easement should accommodate the dominant tenement

Easementary rights must be possessed for the beneficial enjoyment of the dominant tenement.

Dominant and survient owners must be different persons.

The easementary rights should entitle the dominant owners to do and continue to do something
or to prevent and continue to prevent something being done, or in respect of , the survient
tenement; and

The something must be of a certain or well defined character and be capable of forming the
subject matter of a grant

1
K.Krishnamoorthy vs Nagammal on 18 November, 2014
2
P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his house, to move out
of the street. This is known as right of easement.
An easementary right of way is created by - Express grant or by immemorial custom, necessity
or by prescription, or by statute or through private dedication. The term “general right of way” is
applied to private rights of way on which there are no restriction except the necessary
qualification, which nature or the law requires regarding all private rights of way. Actual
significance of the term general right of way lies in its use in contradistinction to the special
limitations expressed or inferred upon the user of any particular right of way over and above the
limitations thus imposed by general law.

Apart from statute, the determination of the question who may use a right of way depends upon
the nature and extent of the right. If the right is created by grant, the persons or classes or persons
entitled to use it may be expressly limited by the terms of the instrument, a grant of this kind
being construed, not strictly, but in accordance with the apparent intention of the parties. As a
general rule the persons or the classes of persons who may use the right must be ascertained by
construing the instrument having regard to the general circumstances surrounding the exception
of the grant. The most important of these circumstances are the nature of the place over which
the right is granted, and the nature of the dominant tenement, and the purposes for which that
tenement is, in the contemplation of the parties, intended to be used. A person who is enjoining
the right of way by more than 20 years without any obstruction by the person in whose land a
person pass thru, but one exception for this is; if such person having another way then he cannot
claim easementary right by way of prescription.

It does not matter whether the way was created by express grant or by way of reservation, or is
claimed under the doctrine of prescription. The nature of the remedy is the sameThe person
claiming for an easementary right of way has the remedy to sue for an injunction to restrain
obstruction of the way or for getting damages. Whether any particular interruption amounts to an
unlawful interference or not depends upon the nature of the right of way and of the place, and
also on the circumstances of the case. If he suffers no damage by obstruction, nominal damages
will be awarded only, and an injunction will be refused. A person who purported exercise of a
right of way makes on excessive user of the survient tenement commits a trespass and may be
restrained from doing at the instance of the survient owner. The factor for deciding the excessive
user depends on the scope of the right, based on the true construction of an express grant or
based on the user, established by the prescription as the case may be.The right to light is basicaly
the right to prevent the owner or occupier of an adjoining tenement from building or placing on
his own land anything which has the effect of illegally obstructing or obscuring the light of the
dominant tenement. The easementary right to light is a right to be protected against a particular
form of nuisance, and an action for the obstruction of light which has in fact been used and
enjoyed for twenty years without having any interruption , or written consent cannot be sustained
unless the obstruction amounts to an actionable nuisance. The right of light is an easement and
may be acquired. 3

3
Indian Encasements Act, 1882
An easement extinguished under section 45 revives :

a) when the destroyed heritage is, before twenty years have expired, restored by the deposit
of alluvion;
b) when the destroyed heritage is a servant building and before twenty years have expired
such building is rebuilt upon the same site; and
c) when the destroyed heritage is a dominate building and before twenty years have expired
such building is rebuilt upon the same site and in such a manner as not to impose a
greater burden on the servant heritage.

An easement extinguished under section 46 revives when the grant or bequest by which the unity
of ownership was produced is set aside by the decree of a competent court. A necessary
easement extinguished under the same section revives when the unity of ownership ceases from
any other cause.A suspended easement revives if the cause of suspension is removed before the
right is extinguished under section 47.

The interference complained of amounts to a nuisance or not cannot be determined by the fact -
whether the diminution is enough materially to lessen the amount of light previously enjoyed,
nor it can be determined by the fact that how much light is left, without regard to what there was
before, but it can be properly decided by the fact - whether the diminution (i.e. difference
between the light before and the light after the obstruction) really makes the building to a
sensible degree less fit than it was before, for the purposes of business or occupation as per the
ordinary requirements of mankind. So far as the easementary right to access of air is concerned,
it is co-existence with the right to light. In this regard it is pertinent to note that the owner of the
house cannot by prescription claim an entitlement of the flow and uninterrupted passage of
current of wind, neither the owner of the house is entitled to right of uninterrupted flow of breeze
as such, rather he can claim only such amount of air which is sufficient for sanitary purposes. He
cannot be allowed to sustain his unjustifiable claim in this regard.

Regarding the cases of easementary right of light the Courts generally do not interfere by way of
injunction where the courts find that the obstruction of light is very slight and where the injury
sustained is trifling, except in such rare and exceptional cases. Here again it is necessary to
understand that no damage is substantial unless it materially diminishes the value of the
dominant heritage, or interferes materially with physical comfort of the plaintiff, or prevents him
from carrying on his accustomed business in the dominant heritage as beneficially as he had
done previous to instituting the suit. In India the Court has discretion: It may or may not issue an
injunction depending on the fact- where the injury is such that pecuniary compensation would
not afford adequate relief. In some cases a mandatory injunction will also be granted. Court will
grant such injunction where a man, who has a right to light and air which is obstructed by his
neighbor’s building, brings his suit and applies for an injunction as soon as he can after the
commencement of the building, or after it has become apparent that the intended building will
interfere with his light and air. But the court should be satisfied that a substantial loss of comfort
has been caused and not a mere fanciful or visionary loss. If plaintiff has not brought his suit or
applied for an injunction at the earliest opportunity, and has waited till the building has been
finished, and then asks the Court to have it removed, a mandatory injunction will not generally
be granted.

Case laws:

Gopalbhai Jikabhai Suvagiya vs Vinubhai Nathabhai Hirani on 26 September, 2018

HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/09/2018
1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the
Code') is at the instance of the original defendants and is directed against the judgment and order
dated 3rd July 2015 passed by the Additional Sessions Judge and 10th (Adhoc) Additional
District Judge, Junagadh, in the Regular Civil Appeal No.21 of 2014 arising from the
C/SA/208/2015 JUDGMENT judgment and decree passed by the Principal Civil Judge,
Visavadar, dated 11th March 2014 in the Regular Civil Suit No.35 of 2011 filed by the
respondents herein - original plaintiffs for declaration and permanent injunction.
2. For the sake of convenience, the appellants herein shall hereinafter referred to as the original
defendants and the respondents shall hereinafter referred to as the original plaintiffs.
3. The defendants are the owners of the land bearing Survey No.111 situated at village Limadhra,
Taluka Visavadar, District Junagadh. The plaintiff no.1 is the owner of the land bearing Survey
No.105 paiki 7 admeasuring H-1-13-1-A and Survey No.105 paiki 9 admeasuring H-1-34-56-A.
The respondent no.2 - original plaintiff no.2 is the owner of the land bearing Survey No.105
paiki 3 admeasuring H-7-47-66-A and the respondent no.3 - original plaintiff no.3 is the owner
of Survey No.106 paiki 1 admeasuring H-1-65-92-A situated at village Limadhra, Taluka
Visavadar, District Junagadh. The respondents had been using the road/way passing through the
Survey Nos.122, 109 and 111 respectively to enter their fields/land from the village, and the
same was being used past more than 100 years even by the ancestors of the respondents. The
appellants started causing obstruction by blocking the road which passes through the middle of
the Survey No.111 (appellants' land) due to which the respondents and other persons who had
been using the same road started facing difficulties in entering their lands. In such circumstances,
the respondents instituted the Regular Civil Suit No.35 of 2011 before the learned Civil Judge,
Visavadar, praying for a declaration that the respondents have a right to use the C/SA/208/2015
JUDGMENT land passing through the Survey No.111 and for permanent injunction against the
appellants restraining them from blocking or changing the nature of the way passing through the
Survey No.111 which is being used by the respondents.
4. The defendants appeared before the trial court and contested the suit by filing their written
statement vide Exh.29.
5. Having regard to the pleadings of the parties, the trial court framed the following issues vide
Exh.62.
"(1) Whether plaintiffs prove that way to their land is passing from the Survey No.111 and they
have a right to pass from this way ?
(2) Whether plaintiffs prove that the defendants has made obstruction on the disputed way and
obstructed them from passing on this disputed way ?
(3) Whether plaintiffs are entitled for seeking relief mentioned in the plaint ?
(4) What order and decree ?"
6. The issues framed by the trial court referred to above came to be answered as under :
"(1) In the affirmative.
(2) In the affirmative.

K.Krishnamoorthy vs Nagammal on 18 November, 2014

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 18.11.2014.CORAM
THE HON'BLE MR.JUSTICE R.MAHADEVAN
S.A.No.70 of 2007
K.Krishnamoorthy ...Appellant vs. .
Nagammal,Arumugam,Damodaran
The suit ''A'' schedule property originally belonged to the father of the plaintiff by name
M.Karuppuswamy, having been purchased by him under a registered sale deed dated 03.09.1963
and eversince from the date of such purchase, the plaintiff is in possession and enjoyment of the
same. The father of the plaintiff died on 24.11.1991. The adjacent land to 'A' schedule property
belonged to one M.Nagappan, who is none other than the brother of the plaintiff's father. First
defendant is the wife, and defendants 2 and 3 are the sons of the said Nagappan. In the land
purchased by the said Nagappan, he had left a pathway for the use of the plaintiff's family to
have access to their house by way of a document executed on 30.6.1988 in favour of the
plaintiff's father. Even prior to such document, from the date of purchase of 'A' schedule
property, the plaintiff and his family members are using the suit pathway viz., 'B' schedule
property, thereby, the plaintiff and his family members have got adverse possession of ''B''
schedule property for nearly 40 years. After the death of the said Nagappan, defendants 2 and 3
put up a brick wall to an extent of about 2 feet out of 4 feet left to the plaintiff's father under the
above said document dated 30.06.1988. The plaintiff had lodged a police complaint against such
activity of the defendants, and was advised to approach the civil forum. The plaintiff and his
family members have no other access to their house except the suit pathway. Hence, the suit has
4 5
been filed for declaration and mandatory injunction.

4
K.Krishnamoorthy vs Nagammal on 18 November, 2014
5
Gopalbhai Jikabhai Suvagiya vs Vinubhai Nathabhai Hirani on 26 September, 2018
 Conclusion

Unlike a lease, an easement does not give the holder a right of “possession” of the property.
Therefore an easementary right is provided for specific relief from specific violations of common
basic rights. In the case of the right to way, any wrongful interference with the right of way
constitutes a nuisance. However, a right of way never entitles the grantee, or those lawfully using
the way under the grant, to the exclusive use of the land over which the way exists nor every
obstruction of the way amounts to an unlawful interference, and no action would lie unless there
is a substantial interference with the easement granted. In the case of right to access of light, it
does not consist of a right to have a continuance of the same amount of light throughout. In case
of a diminution, the dominant owner is bound to show that the diminution has interfered with his
ordinary occupations of life and it results in a nuisance if it is sufficient to render the occupation
of the house uncomfortable, and prevent the owner from carrying his business as beneficially as
he formerly did. In the leading case of Hero vinoth Vs Seshammal (AIR 2006 SC 2234), it is
held that – an easement would last only as long as the absolute necessity existed and such a legal
extinction could not apply to an acquisition by grant- if a right of way was provided to a
particular sharer, it could not be extinguished merely because such sharer had other alternative
way.
 Bibliography

1. TRANSFER OF PROPERTY ACT, 1882.

2. Law of Property, Edition 2nd , Poonam Pradhan, LexisNexis publication.
3. http://www.advocatekhoj.com/library/bareacts/indianencasementsrevival.
4.