Easement

Easement

              What is meant by easement? State the essential conditions of right of easement as contained in the Limitation Act, 1908. How and when can a right to easement be acquired?

Ans:

 Easement normally means a right to use land not belonging to the person using it.

          Section-26 of the Limitation Act, 1908 provides for acquisition of right to easement. The term ‘easement’ is defined in section 2 (5) of the Act which reads as follows:

          “Easement includes a right not arising from contract, by which one person is entitled to remove the  appropriate for his own profit and part of the soil belonging to another or anything growing in or attached to, or subsisting upon, the land of another.

          Acquisition of the right of easement: Section 26 of the Limitation Act provides for the rules of acquisition of the right of easement. According to this section the right of easement regarding enjoyment of light, air, way, watercourse, use of water or other easement shall be absolute and indefeasible if it is enjoyed continuously for a period of 20 years in the case of enjoying private property or 60 years in the case of public property. But this use or enjoyment must fulfill some essential conditions.

          i) In the case of access and use of light and air to or for any building the enjoyment must be--

a)     peaceable

b)    as an easement

c)     as of rights

d)    without interruption

e)     for 20 years in the case of private property and 60 years in the case of public property

          ii) In the case of right to way, watercourse, use of water or any other easement the enjoyment must be –

a)     peaceable

b)    open

c)     by the person claiming title thereto

d)    as of easement

e)     as of right

f)      without interruption

g)     for 20 years in the case of public property and 60 years in the case of private property.

But the right acquired by section 26(1) will be extinguished if there is any interruption for 2 years. So, if any such right is acquired and subsequently obstructed, the person acquired it must file a suit within 2 years claiming such a right.

Example: A is using a right of way on the land of B for 20 years peacefully and openly to enter into his house. B objected after 20 years here A’s right to the way will be upheld by the Court under section 26. This is an example of acquisition of the right of easement or acquisitive property.

Time of continuous enjoyment:

Under clause3 of section 26 the property over which the right of easement is claimed must be enjoyed--

i) 20 years in the case of private property

ii) 60 years where such property is a government property

It has been provided in article 37 of the Limitation act that the person claiming the right of easement will have to file the suit within 3 years of his being obstructed from using the right.

Conditions of easement:

The following conditions must be satisfied for the acquisition of right to easements:

i) Peaceably:

The term peaceably signifies that the enjoyment must not be by violence or force stealth.

ii) Openly

Openly means that the enjoyment must be open and not by stealth or surreptitiously or in disguise.

iii) As of right:

It means that, the enjoyment must be without any leave or licence of the servient owner or without any consideration or payment howsoever nominal it is. As of right means an adverse exercise of the right against the servient owner.

iv) Without interruption:

Without interruption means without any obstruction on the part of the person against when the easement is claimed. It is not necessary that the enjoyment must be for every moment. What is necessary that the right have continuously and substantially used or enjoyed whenever occasion required. Here non user does not constitute interruption.

          In the case of Sudheendee dev vs. Ambica Singh Monipuri, 25 DLR, it was held that mere use of a pathway cannot create prescriptive right unless it is shown that such user has been as of right, peaceably and without interruption.



Lecturer _ Mosume Madam.