Introduction

EXTINCTION OF EASEMENTARY RIGHTS
TRANSFER OF PROPERTY ACT
“EXTINCTION OF EASEMENTRY RIGHTS”
SUBMITTED TO:-
DR. B. RAVI NARAYAN SARMA,
ASSISTANT PROFESSOR OF LAW
SUBMITTED BY:-
ROHIT KUMAR
THIRD SEMESTER
ROLL
NO. :-1847
B.B.A., LL.B. (HONS)
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SESSION - (2017-2022)
CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR MITHAPUR, PATNA
DECLARATION
I, Rohit Kumar, student of Chanakya National Law University, hereby declare that the
project work entitled “EXTINCTION OF EASEMENTARY RIGHTS” submitted to the
Chanakya National Law University, Patna is a record of an original work done by me under
the guidance of Dr. B. Ravi Narayan Sarma, teacher in subject, Chanakya National Law
University, Patna.
THANK YOU,
NAME: Rohit Kumar
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COURSE: B.B.A., LL.B. (Hons.)

ROLL NO: 1847
SEMESTER – 3rd
SESSION- 2017-2022
ACKNOWLEDGEMENTS
I would specially like to thank my guide, mentor, Dr. B. Ravi Narayan Sarma without
whose constant support and guidance this project would have been a distant reality.
This work is an outcome of an unparalleled infrastructural support that I have received from
Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.
It would never have been possible to complete this study without an untiring support from
my family, specially my parents.
This study bears testimony to the active encouragement and guidance of a host of friends
and well-wishers.
THANK YOU,
NAME: Rohit Kumar
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COURSE: B.B.A., LL.B. (Hons.)

ROLL NO: 1847
SEMESTER – 3rd
SESSION- 2017-2022
CONTENTS
INTRODUCTION .................................................................................................................... 6
AIMS AND OBJECTIVES .............................................................................................. 7
HYPOTHESIS.................................................................................................................... 7
RESEARCH METHODOLOGY ..................................................................................... 7
LIMITATION OF THE STUDY.................................................................................... 7
CONCEPT OF EASEMENTS ................................................................................................ 8
1. Meaning and Definition of Easement .......................................................................... 8
NATURE OF EASEMENTARY RIGHTS.......................................................................... 11
 Continuous Easements................................................................................................ 11
 Discontinuous Easements ........................................................................................... 11
 Apparent Easement .................................................................................................... 12
 Non-apparent Easement ............................................................................................. 12
CREATION OF EASEMENTS ............................................................................................ 14
a. By Grant ...................................................................................................................... 14
b. By Necessity and Quasi Necessity .............................................................................. 15
c. By Prescription ............................................................................................................ 17
d. By Custom.................................................................................................................... 18
e. By Transfer of dominant heritage ............................................................................. 18
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INCIDENTS OF EASEMENTS ........................................................................................... 19
EXTINCTION OF EASEMENT .......................................................................................... 21
a. Extinction by dissolution of right of servient owner ................................................ 21
b. Extinction by release ................................................................................................... 22
c. Extinction by Revocation ........................................................................................... 22
d. Extinction on expiry of the prescribed period or the happening of a specified act

22
e. Extinction on termination of necessity ...................................................................... 22
f. Extinction of useless easement ................................................................................... 23
g. Extinction by permanent change in the dominant heritage .................................... 23
h. Extinction or permanent alteration of servient heritage by superior force .......... 23
i. Extinction by destruction of either heritage ............................................................. 23
j. Extinction by unity of ownership .............................................................................. 23
k. Extinction by non-enjoyment ..................................................................................... 24
l. Extinction of the accessory right ............................................................................... 25
CASE LAWS .......................................................................................................................... 27
CONCLUSION....................................................................................................................... 29
BIBLIOGRAPHY .................................................................................................................. 30
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CHAPTER - I
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
servient element for the benefit of the dominant tenement. For example - right of way,
right to light, right to air etc.
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 former1.
Easementary right must possess the following essentials:
 Dominant and servient tenement.
 Easement should accommodate the dominant tenement.
 Easementary rights must be possessed for the beneficial enjoyment of
the dominant tenement.
 Dominant and servient 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 servient 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
https://www.lexology.com/library/detail.aspx?g=f5eccaa2-57b6-4421-b68b
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AIMS AND OBJECTIVES

 To analyse the concept of easementary rights in India.
 To critically analyse the extinction of easementary rights in India.
HYPOTHESIS
The researcher is of the opinion that application of easementary rights is in dismal
condition.
RESEARCH METHODOLOGY
In this project Doctrinal methods are will be used. Doctrinal Methods refer to Library
research, research or processes done upon some texts writings or Documents, legal
propositions and Doctrines, Articles, Books as well as Online Research and Journals
relating to the subject.
LIMITATION OF THE STUDY

Due to the paucity of time and money, the researcher has chosen the doctrinal mode of
research and has only taken Indian scenario.
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CHAPTER - II
CONCEPT OF EASEMENTS
The Indian Easement Act came into force on 1st July 1882, with the object of defining and amending
the law relating to Easements and Licenses. It is the right enjoyed by the owner or the occupier of
the land, to enjoy his own land by exercising certain rights over some other land not belonging to
him.
1. Meaning and Definition of Easement:

Easementary Right is a privilege annexed to some to be enjoyed over some property; it is a right which
a person claims over a land which is not of his own.
S.4 of the Indian Easement Act, 1882: An Easement is a right which the owner or the occupier of
the certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent something being done, in or upon, or in respect of
certain other land not his own.2
Dominant and servient heritages and owners: The land for the beneficial enjoyment of which the right
exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land
on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the
servient owner.3
 Dominant Heritage and owner
– D.H. is the land for the beneficial enjoyment of the right exist.
– The owner or the occupier of such land is D.O.
 Servient Heritage and Owner
– S.H. is the land on which the liability is imposed.
2
Section 4 of Indian easement Act, 1882
3
Id
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– S.O. is the owner of such land.
Essential Constituents of S.4:

a. Right: It is a legal right, which although at the time of its inception would have been illegal but
has now acquired the legal character after the expiration of the prescribed period.
A right always involves two parties:
– Person of inherence i.e. the person on whom a legal right vests, Dominant owner;
– Person of incidence i.e. the person who have a co-relative duty, Servient owner.
b. Owner or the occupier of the certain Land: In the section the term owner and occupier are
mentioned separately.
i. Owner includes the present owner and the subsequent owner, example: buyer, donee etc.
ii. Occupier means the person who is not the owner but is the occupier, example: lessee etc.
c. Land: As per Explanation to S.4 “the expression land includes the things permanently attached
to Earth.”
The expression attached to Earth has not been explained in the Act, so its meaning has been defined
in S.3 of the Transfer of Property Act, 1882, it includes:
– Rooted in the Earth, as in the case of Trees and Shrubs;
– Embedded in the Earth in case of Walls and Building;
– Attached to what is so embedded for the permanent beneficial enjoyment of that to which it
is attached.4
d. Beneficial Enjoyment: Easementary right is that right which is possessed by the dominant owner
to enjoy the dominant heritage better than he otherwise would have done.
As per the explanation to S.4 “the expression beneficial enjoyment includes:
– Possible Convenience: For example right to way, right to fetch water from the neighbour’s
land etc.
– Remote Advantage: For example right to light, right to air.
– Even a mere amenity: The scope of the definition is left open by the legislature for the
interpretation by the judiciary.
e. To do and continue to do, or to prevent or continue to prevent: The right of Easement has
been classified into:
4
https://www.legalbites.in/tpa-introduction-important-definitions/
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i. Positive Easement: This right enables the dominant owner to make active use of the
servient tenement. It confers on him a right to do some act upon the servient heritage in the
absence of an easement, would be a nuisance or a trespass.
ii. Negative Easement: The right restricts the owner of the Servient Heritage, but merely
restrict him from making a certain use of his property in a certain manner which would
impair the easement enjoyed by the dominant owner for the beneficial use of the dominant
heritage.
f. “To do something”: It includes removal and appropriation by the dominant owner, for the
beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage,
anything growing or subsisting thereon.
g. On certain land Not His Own: The most essential constituent of the easement is that an
easementary right cannot be exercised by a person on his own property, the right is available to a
person on the property which belongs to other person.
To sum up:
– Easement is a legal right;
– Right which rests with the Owner or the occupier;
– For the beneficial enjoyment of the land;
– Positive right and negative right;
– On the property not his OWN.
Illustration:
– A, as the owner of a certain house, has a right of way thither over his neighbour B’s land for
purposes connected with the beneficial enjoyment of the house. This is an easement.
– A, as the owner of a certain house, has the right to go on his neighbours B’s land, and to take
water for the purposes of his household out of a spring therein. This is an easement.
– A, as the owner of a certain house, has the right to conduct water from B’s stream to supply
the fountains in the garden attached to the house. This is an easement.
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CHAPTER - III
NATURE OF EASEMENTARY RIGHTS
S.5 of the Indian Easement Act: Easements are either continuous or discontinuous, apparent or non-
apparent.5
A continuous easement is one whose enjoyment is, or may be, continual without the act of man.
A discontinuous easement is one that needs the act of man for its enjoyment.
An apparent easement is one the existence of which is shown by some permanent sign which, upon
careful inspection by a competent person, would be visible to him.
A non-apparent easement is one that has no such sign.
 Continuous Easements:
– Whose enjoyment is, or may be, continual without the act of man.
– For Example: Right to light, Right to air.
– A continuous easement is one, the use of which is uninterrupted, without the intervention of
the human act;
– The test of continuousness is when due to the easementary right the S.H. has been
permanently altered in such a way in order to exercise the easement.
Illustration: A right annexed to B’s house to receive light by the windows without obstruction by
his neighbour A. This is a continuous easement.
 Discontinuous Easements:
– It’s a kind of easement which needs the act of man for its enjoyment.
– For example: Right of way, Right to fetch water from the S.H.
– For discontinuous easement the act of man is essential;
5
Section 5 of Indian Easement Act, 1882
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– ‘Act of Man’ means the act which should necessarily be done on the S.H.
Illustration: (b) A right of way annexed to A’s house over B’s land. This is a discontinuous
easement.6
 Apparent Easement:
– The existence of which is shown by some permanent sign which, upon the careful inspection
by a competent person, would be visible to him.
Illustration: Rights annexed to A's land to lead water thither across B's land by an aqueduct
and to draw off water thence by a drain. The drain would be discovered upon careful
inspection by a person conversant with such matters. These are apparent easements.
 Non-apparent Easement:
– It is the kind of Easement which does not have any sign.
Illustration: A right annexed to A's house to prevent B from building on his own land. This
is a non-apparent easement.
S. 6 of the Easement Act: An easement may be permanent, or for a term of years or other limited
period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times,
or between certain hours, or for a particular purpose, or on condition that it shall commence or become
void or voidable on the happening of a specified event or the performance or non-performance of a
specified act.7
As per S.6 the Easements can be divided into three categories:
a. Permanent easement;
b. Limited Easement:
– Limited as to its duration or subject to periodical interruption;
– Enjoyment as to a certain place, certain times, for a particular purpose;
c. Conditional Easement: Condition can be imposed as to is:
– Commencement;
– Becoming void or voidable on the happening of certain specified event; or on the
performance or the non-performance of certain specified act.
S.7 of Indian Easement Act: Easements are restrictions of one or other of the following rights
(namely)8:-
6
Id
7
Section 6 Of Indian easement Act, 1882
8
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Exclusive right to enjoy:
(a) The exclusive right of every owner of immovable property (subject to any law for the time being
in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
Rights to advantages arising from situation:
(b) The right of every owner of immovable property (subject to any law for the time being in force)
to enjoy without disturbance by another the natural advantages arising from its situation.
Illustrations:
– The exclusive right of every owner of land in a town to build on such land, subject to any
municipal law for the time being in force.
– The right of every owner of a house that his physical comfort shall not be interfered with
materially and unreasonably by noise or vibration caused by any other person.
– The right of every owner of land to so much light and air as pass vertically thereto.
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CHAPTER - IV
CREATION OF EASEMENTS
Creation of easements is dealt from section 8 to 19 of Indian Easement Act.
a. By Grant:
It is the Easement by consent of the servient owner/occupier. In this where the servient owner
expressly agreed and gave permission to use specific property for the beneficial enjoyment of the
dominant heritage.
This is an express grant of easement from servient occupier to dominant occupier. The extent of
such grant is to the extent to which he may transfer his interest in the heritage on which the liability
is to be imposed.9
The Servient Owner while making the express grant of the easement should keep notice of the two
things:
– That the imposition the utility of the existing easement is not reduced;
– Without the consent of the dominant heritage, the servient owner cannot grant easementary
right to such an extend which would lessen the utility of existing dominant owner.
Illustration:
9
http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=49
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– A is a tenant of B’s land under a lease for an unexpired term of twenty years, and has
power to transfer his interest under the lease. A may impose an easement on the land to
continue during the time that the lease exists or for any shorter period.
– A, B and C are co-owners of certain land. A cannot, without the consent of B and C,
impose an easement on the land or on any part thereof.
– A has, in respect of his house, a right of way over B’s land. B may grant to C, as the
owner of a neighbouring farm, the right to feed his cattle on the grass growing on the
way: Provided that A’s right of way is not thereby obstructed.
The lessor or mortgagor can impose easement but when the following conditions are fulfilled:
– It derogates with the rights of the lessee or in case of the mortgage renders the security
insufficient.
– Consent of lessee or mortgagee is required only in the case when easement granted is to
take effect before the expiration of the term of lease or mortgage.10
b. By Necessity and Quasi Necessity:

S. 13(a), (c), (e) contemplates about Easement by Necessity.
Necessity mentioned under these clauses is not an ordinary necessity but an absolute one. In order
to claim easement of necessity, it must be shown that it is one without which the property retained
upon a severance cannot be used at all. It should not be the convenient mode of enjoying the
property.
Easement by necessity arise when one property is severed into two parts either because of transfer,
bequest or partition and two properties are so situated that one cannot be enjoyed without exercising
a particular privilege in or upon other portion.
S.13 (a): If an easement in other immovable property of the transferor or testator is necessary for
enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such
easement; or
10
http://theindianlawyer.in/statutesnbareacts/acts/i19.html
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(c) If an easement in the subject of the transfer or bequest is necessary for enjoying other immovable
property of the transferor or testator, the transferor or the legal representative of the testator shall
be entitled to such easement; or
(e) Where a partition is made of the joint property of several persons: if an easement over the share
of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to
such easement.
Illustrations
– A sells B a field then used for agricultural purposes only. It is inaccessible except by passing
over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way,
for agricultural purposes only, over A’s adjoining land to the field sold.
– A, the owner of two field, sells one to B, and retains the other. The field retained was, at the date
of the sale, used for agricultural purposes only, and is inaccessible except by passing over the
field sold to B. A is entitled to a right of way, for agricultural purposes only, over B’s field to the
field retained.
S.13(b), (d), (f) contemplates about Easement by Quasi necessity. Such an easement should not be
an absolute one but in should be qualified one. Quasi necessity applies to apparent and continuous
one. Such kind of necessity for enjoying the separate property in the same manner as was enjoyed
before separation.11
S.13(b): If such an easement is apparent and continuous and necessary for enjoying the said subject
as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a
different intention is expressed or necessarily implied, be entitled to such easement;
(d) If such an easement is apparent and continuous and necessary for enjoying the said property as
it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of
the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such
easement.
(f) Where a partition is made of the joint property of several persons: If such an easement is apparent
and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition
11
Section 13(b) of Indian Easement Act, 1882
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took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to
such easement.
Illustration: A sells B a house with windows overlooking A's land which A retains. The light which
passes over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the
sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
c. By Prescription:
This is the most common mode of enjoyment and acquisition of easement. When the dominant
owner uses the property of servient owner openly, without any interruption and peaceably for the
period of twenty years continuously then the right of easement gets transferred to dominant owner
by prescription.
S.15: Where the access and use of light or air to and for any building have been peaceably enjoyed
therewith, as an easement, without interruption, and for twenty years, and where support from one
person's land, or things affixed thereto, has been peaceably received by another person's land
subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption,
and for twenty years12,
and where a right of way or any other easement has been peaceably and openly enjoyed by any
person claiming title thereto, as an easement and as of right, without interruption, and for twenty
years, The right to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next
before the institution of the suit wherein the claim to which such period relates is contexted.
Explanation I: Nothing is an enjoyment within the meaning of this section when it has been had in
pursuance of an agreement with the owner or occupier of the property over which the right is
claimed, and it is apparent from the agreement that such right has not been granted as an easement,
or, if granted as an easement, that it has been granted for a limited period, or subject to a condition
on the fulfilment of which it is to cease.
Explanation II: Nothing is an interruption within the meaning of this section unless where there is
an actual cessation of the enjoyment by reason of an obstruction by the act of some person other
than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after
the claimant has notice thereof, and of the person making or authorising the same to be made.
12
P a g e 17 | 31
Explanation III: Suspensions of enjoyment in pursuance of a contract between the dominant and
servient owners is not an interruption within the meaning of this section…
When the property over which a right is claimed under this section belongs to Government, this
section shall be read as if, for the words "twenty years" the words "thirty years" were substituted.
Illustration: A suit is brought in 1883 for obstructing a right of way. The defendant admits the
obstruction, but denies the right of way. The plaintiff proves that the right was peaceable and openly
enjoyed by him, claiming title thereto, as an easement, and as of right, without interruption, from
1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgement.
d. By Custom:
An easement may be acquired in virtue of a local custom. Such easements are called customary
easements.
Illustration: By the custom of a certain village every cultivator of village land is entitled, as such to
graze his cattle on the common pasture. A having become the tenant of a plot of uncultivated land
in the village breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle
in accordance with the custom.
e. By Transfer of dominant heritage:

Where the dominant heritage is transferred or devolves, by act of parties or by operation of law,
the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the
easement to the person in whose favour the transfer or devolution takes place.13
Illustration: A has certain land to which a right of way is annexed. A lets the land to B for twenty
years. The right of way vests in B and his legal representatives so long as the lease continues.
13
https://www.incometaxindia.gov.in/Acts/Indian%20Easements%20Act,%201882/102120000000004809.htm
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CHAPTER - V
INCIDENTS OF EASEMENTS
Section 20 to 31 of the Act deals with the Incidents of Easements.
The right of easements gives rise to certain incidental rights, duties, benefits, etc., both on the
dominant owner and servient owner.The rules relating to such incidental right etc.,are controlled
by contracts between dominant and servient owners relating to the servient heritage.However
such contracts cannot affect incidents arising out of customary easements.14
Rules of Incidental Easements :
The following are the rules of incidents of easements.
1. An Easements must not be used for any purpose not connected with the enjoyment of the
dominant heritage.
14
https://www.boddunan.com/articles/education/21-law-a-legal/3029-incidents-of-easements.html
P a g e 19 | 31
Eg:- "A" an owner of a house lets it for rent,along with the land adjacent to it to "B".Now "a" has
a right of way in the land only for the purpose of collecting rent or repair.
2. The dominant owner must exercise his right in such a way that it creates least inconvenience to
the servant owner.
Eg:- "A" has a right of way over "B"'s field."A" must use the established way and must not create
a new way.
3. The dominant owner may,from time to time,alter the mode of enjoying the easements.However
by such alteration,he should not impose any aditional burden on the servient heritage.Further just
for fun or pleasure the dominant owner cannot alter the enjoyment of easement though it does not
impose any additional burden.
4. The dominant owner is entitled to do all acts necesasary to secure the full enjoyment of the
easement but he must do such acts without causing inconvenience to the servient owner and
damage to the servient heritage.This right of the dominant owner is called "Accessory Right".
5. The expenses incurred in constructing works or making repairs for the use or preservation of
easements must be borne by the dominant owner.
6. In an easements which is enjoyed by means of an artificial work,then the damage caused to the
servient heritage must be compensated by the dominant owner.15
7. The servient owner need not do anything for the benefit of the dominant heritage and he can
use the servient heritage in any matter but without affecting the enjoyment of the easement.
8. In deciding the extent of easement and mode of its enjoyment the intention of the parties and
the purposes of which the easements was acquired must be considered.
In the absence of evidence for intention and purpose the following are the rules:
a. In the case of right of way, one kind does not include right of any other kind.
b. In the case of right to light or air acquired by grants,the quantity of light or air available during
the whole of prescripition period is considered.
9. Easements can be increased by alluvion and diminished by diluvion and it cannot be increased
by mere altering or adding to the dominant heritage and for that matter, easement is not at all
affected by any change in the dominant or servient heritage.
10. When a dominant heritage is divided between two or more persons, the easements becomes
annexed to each of the shares.
Eg: - A house is divided into two parts and given to two persons. Each is entitled for right of way.
15
https://indiankanoon.org/doc/82950642/
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11. In the case of excessive use of an easement the servient owner may obstruct the user on the
servient heritage only.Furthur such obstruction should not affect the lawful enjoyment of
easement.
It is helpful to know the rules of incidents of easements.
CHAPTER - VI
EXTINCTION OF EASEMENT
Section 37 to 48 of the Act deals with the Extinction of Easements

a. Extinction by dissolution of right of servient owner: When from a cause which proceeded the
imposition of an easement, the person by whom it was imposed, ceases to have any right in the
servient heritage, the easement is extinguished.16
16
https://www.incometaxindia.gov.in/Acts/Indian%20Easements%20Act,%201882/102120000000004829.htm
P a g e 21 | 31
Illustration: A transfers Sultanpur to B on condition that he does not marry C. B imposes an

easement on Sultanpur. Then B marries C. B’s interest in Sultanpur ends, and with it the easement
is extinguished.
b. Extinction by release: When the dominant owner releases his right of easement, expressly or
impliedly to the servient owner. Such release can be made only in the circumstances and to the
extent in and to which the dominant owner can alienate the dominant heritage.
An easement may be released as to part only of the servient heritage.
Explanation I: An easement is impliedly released
(a) Where the dominant owner expressly authorises an act of a permanent nature to be done on the
servient heritage, the necessary consequence of which is to prevent his future enjoyment of the
easement, and such act is done in pursuance of such authority;
(b) Where any permanent alteration is made in the dominant heritage of such a nature as to show
that the dominant owner intended to cease to enjoy the easement in future.
Explanation II: Mere non-user of an easement is not an implied release within the meaning of this
section.
Illustration: A, B and C are co-owners of a house to which an easement is annexed. A, without the
consent of B and C, releases the easement. The release is effectual only as against A and his legal
representative.
c. Extinction by Revocation: When the servient owner in exercise of power reserved in this behalf
revokes the easement, an easement is extinguished. In this case the servient owner has reserved
the right or revocation of easement at the time when granted permission to the dominant owner17.
d. Extinction on expiry of the prescribed period or the happening of a specified act: If an
easement has been imposed for a limited period or acquired on the condition that it shall become
void on the performance of a specified act and the period expires or the condition is fulfilled, then
easement comes to an end.
e. Extinction on termination of necessity: An easement of necessity is extinguished when the
necessity comes to an end.
17
http://www.msrlawbooks.com/file/LAW_OF_EASEMENTS.pdf
P a g e 22 | 31
f. Extinction of useless easement: An easement is extinguished when it becomes incapable of

being at any time and under any circumstances beneficial to the dominant owner.
g. Extinction by permanent change in the dominant heritage: The injury caused to the servient
heritage is material because of permanent change in dominant heritage whereby servient owner
has to interfere with the lawful enjoyment of easement.
h. Extinction or permanent alteration of servient heritage by superior force: When the servient
heritage by superior force i.e. by the act of God like earthquake, flood etc. is so permanently
altered that the dominant owner can no longer have such easement.
Provided where a way of necessity is destroyed by the superior force, the dominant owner has a
right to another way over the servient heritage.
Illustration: A grants to B, as the owner of a certain house, a right to fish in a river running through
A’s land. The river changes its course permanently and runs through C’s land. B’s easement is
extinguished.
[As per S.51 the Easement extinguished under this Section can be revived under this Section when
such Easement is restored before the period of 20 years:
a. Restored by deposit of alluvion ;

b. Servient is built again in the same manner;
c. Dominant heritage is built in such a way that no access burden is imposed on Servient Heritage.]
i. Extinction by destruction of either heritage: An easement is extinguished when either the

dominant or the servient heritage is completely destroyed.
Illustration: A has a right of way over a road running along the foot of a sea-cliff. The road is
washed away by a permanent encroachment of the sea. A's easement is extinguished.
j. Extinction by unity of ownership:
An easement is extinguished when the same person becomes entitled to the absolute ownership of
the whole of the dominant and servient heritages.18
18
www.academia.edu/23567468/Law_of_Easements_A_Brief_Overview_of_the_Indian_Easements_Act_1882
P a g e 23 | 31
Illustration: A, as the owner of a house, has a right of way over B’s field. A mortgages his house,
and B mortgages his field to C. Then C forecloses both mortgages and becomes thereby absolute
owner of both house and field. The right of way is extinguished.
[The easement extinguished under this Section can be revived under S.51 if such order of unity of
ownership is set aside by the competent court.]
k. Extinction by non-enjoyment: A continuous easement is extinguished when it totally ceases to

be enjoyed as such for an unbroken period of twenty years. A discontinuous easement is
extinguished when, for a like period, it has not been enjoyed as such. Such period shall be
reckoned, in the case of a continuous easement, from the day on which its enjoyment was
obstructed by the servient owner, or rendered impossible by the dominant owner; and, in the case
of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant
owner:
Provided that if, in the case of a discontinuous easement, the dominant owner, within such period,
registers, under the Indian Registration Act, 1877 (3 of 1877), a declaration of his intention to retain
such easement, it shall not be extinguished until a period of twenty years has elapsed from the date
of the registration.
Where an easement can be legally enjoyed only at a certain place, or at certain times, or between
certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at
other items, or between other hours, or for another purpose, does not prevent its extinction under this
section.
The circumstance that, during the said period no one was in possession of the servient heritage, or
that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that dominant
owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not
prevent its extinction under this section.
An easement is not extinguished under this section:
(a) where the cessation is in pursuance of a contract between the dominant and servient owners;
(b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the
easement within the said period; or
P a g e 24 | 31
(c) where the easement is necessary easement.
Where several heritages are respectively subject to rights of way for the benefit of a single heritage,
and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a
single easement.
Illustration: A has, as annexed to his house, rights of way from the high road thither over the
heritages X and Z and intervening heritage Y. Before the twenty years expire, A exercises his right
of way over X. His rights of way over Y and Z are not extinguished.
l. Extinction of the accessory right: When an easement is extinguished, the rights (if any)
accessory thereto are also extinguished.
Illustration: A has an easement to draw water form B’s well. An accessory thereto, he has a right
of way over B’s land to and from the well. The easement to draw water is extinguished under
section 47. The right of way is also extinguished.
2. Licenses:
a. License means:
– When one person grants to another person or to a definite number of other persons;
– A right, to do in or upon the immovable property;
– If the right was not granted such an act would have been unlawful;
– Such right is not an easement or an interest in the property.
The essential features of licenses are:
– It is not connected with ownership of any land, but it creates only personal right or
obligation;
– It is purely a permissive right, is granted only by permission and not by adverse exercise
or in any other way.
– It only confers certain act which would otherwise be unlawful and does not confer any
interest in the property.
b. Easement v. License:
Easement License
P a g e 25 | 31
Such a right is annexed with the property. License is a personal right.
Easementary right is the right in Rem License is the right in personam.
This right is transferrable. License is not transferrable.
Easementary right is not revocable. License can be revoked at any point of time.
Such rights can be acquired in many no. of ways. License can only be acquired by grant.
c. A license may be granted by anyone in the circumstances and to the extent in and to which he may
transfer his interests in the property affected by the license.
d. The grant of a license may be express or implied from the conduct of the grantor, and an agreement
which purports to create an easement, but is ineffectual for that purpose, may operate to create a
license.
e. Unless a different intention is expressed or necessarily implied, license to attend a place of public
entertainment may be transferred by the licensee; but, save as aforesaid, a license cannot be
transferred by the licensee or exercised by his servient or agents.
f. A license may be revoked by the grantor, unless
a) It is coupled with a transfer of property and such transfer is in force;
b) The licensee, acting upon the license, has executed a work of a permanent character and incurred
expenses in the execution.
g. A license is deemed to be revoked
(a) When, from a cause preceding the grant of it, the grantor ceases to have any interest in the property
affected by the license;
(b) When the licensee releases it, expressly or impliedly, to the grantor or his representative;
(c) Where it has been granted for a limited period, or acquired on condition that it shall become void
on the performance or non-performance of a specified act, and the period expires, or the condition is
fulfilled;
P a g e 26 | 31
(d) Where the property affected by the license is destroyed or by superior force so permanently altered
that the licensee can no longer exercise his right;
(e) Where the Licensee becomes entitled to the absolute ownership of the property affected by the
license;
(f) Where the license is granted for a specified purpose and the purpose is attained or abandoned, or
becomes impracticable;
(g) Where the license is granted to the licensee as holding a particular office, employment or
character, and such office, employment or character ceases to exist;
(h) Where the license totally ceases to be used as such for an unbroken period of twenty years, and
such cessation is not in pursuance of a contract between the grantor and the licensee;
(i) In the case of an accessory license, when the interest or right to which it is accessory ceases to
exist.
CHAPTER - VII
CASE LAWS
The easement is not permanent and depends on various exigencies. Its necessity is sine qua
non for an easement. Wherever such necessity diminishes, the easement also resides. In
Venkatapathiraju v. Subbaraju, AIR 1930 Madras 78919, the learned Single Judge held that
easements of necessity are extinguished when necessity creating them ends and when once
extinguished, dominant owner cannot revive them by his acts. In Chapsibhai Bhanjibhai
Dand v. Purushottam20, , a Division Bench of the Apex Court held that to establish a
prescriptive acquisition of a right one must prove that he was exercising that right on a
property treating it as someone else's property. Thus from the above decisions, it is clear
19
Venkatapathiraju v. Subbaraju, AIR 1930 Madras 789
20
Chapsibhai Bhanjibhai Dand v. Purushottam
P a g e 27 | 31
that it is not enough for the party claiming such right of easement to show the existence of
easement, but necessarily it contemplates on his part to show that it has to be continued and
its enjoyment is necessary on the relevant date. No doubt, the lower appellate Court has
taken into consideration the documents of respondents and came to the conclusion that
there existed such a passage. However, those documents are of anterior period and would
not throw any light as such on the date of the suit. Necessarily, it follows that the entire
other evidence as let in from both sides has to be looked into for the purpose of deciding as
to the situation existed on the date of the suit. Therefore, the lower appellate Court was not
right in totally excluding the other evidence rather than the documents as mentioned therein
to consider the question in issue. In Shikharchand Jain v. Digamber Jain Piraband Karini
21
Sabha, , while considering the Section 100 of CPC, a Division Bench of the Apex Court
held that the appellate Court was wholly wrong in discarding the khasra entries on the
solitary statement in certain paragraph of the plaint and therefore the High Court could
interfere with its finding in second appeal. Similarly, in Hira Lal v. Gajjan, AIR 1190 SC
723, a Division Bench of the Apex Court held that when first appellate Court discarded the
evidence as inadmissible and High Court is satisfied that evidence was admissible that may
introduce an error or defect in procedure, the High Court can arrive at its independent
decision. In view of the same, the matter requires reconsideration on the entire evidence
including oral. Thus the exclusion of the oral evidence by the lower appellate Court is not
correct and therefore, the judgment and decree of the lower appellate Court requires to be
set aside.
Moore v Rawson (1824) 3 B & C 33222
Facts:
 house on C's land benefitted from a right of light (from D's land) to certain
windows on one wall of house
 C's predecessor took down wall & replaced without windows
 14 yrs later D built wall facing C's then windowless wall
 3 yrs later again C put windows in wall of house (as originally there) & claimed
D's wall interfered with light
Issue:
21
Shikharchand Jain v. Digamber Jain Piraband Karini
22
Moore v Rawson (1824) 3 B & C 332
P a g e 28 | 31
 Was there an easement?
Held:
 C's predecessor, by erecting windowless wall, had extinguished right to light
 if there had been indication of intent to put in windows within reasonable time,
may been sufficient to preserve right
 in instant case, strong indication (17 yrs passing) that right was abandoned
CHAPTER - VIII
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
P a g e 29 | 31
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.
Moreover the section 37 to 48 of Indian Easement Act talks for extinction of easement by
dissolution of right, by release, by revocation, on expiration of limited period or happening
of dissolving condition, on termination of necessity, if easement became useless, by
permanent change in dominant heritage, on permanent alteration of servient heritage by
superior force, by destruction of either heritage, by unity of ownership, by non-enjoyment
or extinction of accessory right. Further it provides for suspension and revival of easement
as per Section 49, 50 and 51 of the Act.
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.
CHAPTER - IX
BIBLIOGRAPHY
The researcher has consulted following sources to complete the rough proposal:
Primary Sources:
 STATUTES
o Indian Easements Act, 1882
Secondary sources:
Secondary sources include books, articles, magazines, journals, websites etc.
 BOOKS
o Author: B.B. Katiyar, Law of easements and licences, (Lexis Nexis; Sixteenth edition,
2017)
P a g e 30 | 31
o Author: R.k. Sinha , Transfer of Property Act, Published by Central Law Agency, 7th
edition, (2015)
o WEBSITES:
1. http://www.mondaq.com/india/x/227658/agriculture+land+law/A+Glance+Over+The
+Easementary+Rights
2. https://indiankanoon.org/search/?formInput=extinction%20of%20easements&pagenu
m=9
3. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=49&sections_id=15724
4. https://www.slideshare.net/altacitglobal/easementary-rights
P a g e 31 | 31

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EXTINCTION OF EASEMENTARY RIGHTS

TRANSFER OF PROPERTY ACT

“EXTINCTION OF EASEMENTRY RIGHTS”

DR. B. RAVI NARAYAN SARMA,

ASSISTANT PROFESSOR OF LAW

B.B.A., LL.B. (HONS)

CHANAKYA NATIONAL LAW UNIVERSITY

COURSE: B.B.A., LL.B. (Hons.)

COURSE: B.B.A., LL.B. (Hons.)

AIMS AND OBJECTIVES .............................................................................................. 7

RESEARCH METHODOLOGY ..................................................................................... 7

LIMITATION OF THE STUDY.................................................................................... 7

CONCEPT OF EASEMENTS ................................................................................................ 8

1. Meaning and Definition of Easement .......................................................................... 8

NATURE OF EASEMENTARY RIGHTS.......................................................................... 11

 Discontinuous Easements ........................................................................................... 11

 Apparent Easement .................................................................................................... 12

 Non-apparent Easement ............................................................................................. 12

CREATION OF EASEMENTS ............................................................................................ 14

b. By Necessity and Quasi Necessity .............................................................................. 15

e. By Transfer of dominant heritage ............................................................................. 18

INCIDENTS OF EASEMENTS ........................................................................................... 19

EXTINCTION OF EASEMENT .......................................................................................... 21

a. Extinction by dissolution of right of servient owner ................................................ 21

b. Extinction by release ................................................................................................... 22

c. Extinction by Revocation ........................................................................................... 22

d. Extinction on expiry of the prescribed period or the happening of a specified act

e. Extinction on termination of necessity ...................................................................... 22

f. Extinction of useless easement ................................................................................... 23

g. Extinction by permanent change in the dominant heritage .................................... 23

h. Extinction or permanent alteration of servient heritage by superior force .......... 23

i. Extinction by destruction of either heritage ............................................................. 23

j. Extinction by unity of ownership .............................................................................. 23

k. Extinction by non-enjoyment ..................................................................................... 24

l. Extinction of the accessory right ............................................................................... 25

CASE LAWS .......................................................................................................................... 27

AIMS AND OBJECTIVES

LIMITATION OF THE STUDY

1. Meaning and Definition of Easement:

– S.O. is the owner of such land.

Essential Constituents of S.4:

Exclusive right to enjoy:

Rights to advantages arising from situation:

b. By Necessity and Quasi Necessity:

e. By Transfer of dominant heritage:

Section 37 to 48 of the Act deals with the Extinction of Easements

Illustration: A transfers Sultanpur to B on condition that he does not marry C. B imposes an

An easement may be released as to part only of the servient heritage.

Explanation I: An easement is impliedly released

f. Extinction of useless easement: An easement is extinguished when it becomes incapable of

a. Restored by deposit of alluvion ;

i. Extinction by destruction of either heritage: An easement is extinguished when either the

j. Extinction by unity of ownership:

k. Extinction by non-enjoyment: A continuous easement is extinguished when it totally ceases to

An easement is not extinguished under this section:

(c) where the easement is necessary easement.

Such a right is annexed with the property. License is a personal right.

Easementary right is the right in Rem License is the right in personam.

This right is transferrable. License is not transferrable.

f. A license may be revoked by the grantor, unless

a) It is coupled with a transfer of property and such transfer is in force;

g. A license is deemed to be revoked

 Was there an easement?