EASEMENT

1. EASEMENT Professional Practice Submitted by Shailesh Kumar Pathak , 060133 Richard Sadokpam , 060143 060133 & 060143

2. Meaning of easement: • Easement are certain rights connected with enjoyment of immovable property. • The Easement rights and corresponding obligations arise as a result of local and general customs. • It is a right which the owner or occupier of the land, possesses for the beneficial enjoyment of that land. Dominant heritage: • The land on which the right of beneficial enjoyment has been created is called the dominant heritage. • And the owner of such land is called “ Dominant Owner” Serviant Heritage: The land on which easement is created is called serviant heritage and the owner is called “ servient owner”. The word “land” in such cases includes things which are permanently attached to the land. e.g buildings ,trees, compound walls and other features. The word “beneficial enjoyment” includes advantages and amenities such as water supply, drainage lines, electric cables. 060133 & 060143

3. Some of the common types of easements • right of way through neighbour’s land, • right to enjoy light and air from adjoining land, • right to get water from neighbour’s well, • right to gaze cattle etc. Easements rights are acquired in following ways 1. by prescription 2. By express grant 3. by implied grant 4. by custom 1.Easement by prescription When an owner allows people to pass through his land without any objection or obstruction for continuous period of 20 years or allows a neighbour to enjoy light and air from his property , the easement that is created is known “ easement by prescription” 2.Easement by express grant • When an owner permits people to pass through his land with full knowledge and consent or creates some kind of right through a written agreement , it is known as Express Grant. • It is also known as “ convenant” 060133 & 060143

4. 3.Easement by implied grant • When a owner does some kind of act which implies creation of certain right over his property , it is known as Implied Grant. • For example, when an owner sells a rear portion of his property which does not have an independent access, it is implied that he will permit the purchaser to pass through his land. 4.Easement by custom When people enjoys certain rights to make use of a piece of land for a social activity, year after year, as a custom, it is said to be an easement of custom . • An easement is not created by a single act. • It is created by continuous or discontinuous, repeated action of over a period of 20 years. • When there is a continuous action, it is known as “continuous easement”. • Easement of land and air is an example of continuous easement. • Right of way or passing through land is an example of “discontinuous easement. Easement in a joint property If a land belongs to two or more owners, all have the same rights and privilege of ownership and enjoyment of the property, hence no single owner can claim an exclusive easement. 060133 & 060143

5. Projection of eaves or “Pankh” • If the age or pankh of roof of one owner projects over the land of another for a continuous period of 20 years, it amounts to a prescriptive easement. • The servient owner cannot compel the dominant owner to remove the projected portion. • He is required to allow him the right without any obstruction .However, such an easement does not give the dominant owner any other right or title over the servient heritage. Party wall : • A wall standing between two houses which is their common boundary is known as party wall. • It is generally commonly –owned. • Since the wall is jointly owned, there is no question of one owner enjoying an exclusive easement. • Incase one owner raises the height of the party wall with the consent of the other, he does not derive any exclusive right over it. The other owner acquires the same right as the one who raised it. Both the owners have an inherent right of support of the wall. 060133 & 060143

6. Neither owner can provide any opening, window or grill in the party wall without the express permission of the other. Even when one owner wants to carry out repairs or reconstruction of nay kind, within his portion, it is his responsibility to ensure that the party wall is not in danger in any manner.If need be, he is required to provide that dead shores and flying shores as shown in illustration. Flying shore Dead shore Dead shore Section A C B Flying shore Common Walls B A C Plan Row houses ROW HOUSES - EASEMENT OF SUPPORT 060133 & 060143

7. An easement of right of way can be extinguished if both the owners agree to do so in writing. If mutually agreed the size position of the affected strip of land can be altered., so as to allow the servient owner to develop his remaining portion of land in his desired manner. At times the servient owner is required to pay financial compensation or make some other kind o farrangement to extinguish the easement. Dominant heritage Dominant heritage Servient heritage Pathway Servient heritage New pathway Old Pathway Road road existing Existing Method of accommodating easement of Right of way 060133 & 060143

8. TYPES OF EASEMENTS EASEMENT OF RIGHT OF WAY • The right to pass through some one else’s property is acquired either by expressed grant • or through prescription. • by expressed grant • it is done with the full knowledge and the consent of the owner of the property . • in that case, it is a convenant ; • it is usually put down in writing. • such a right may be given for a limited period. in very rare cases, it is given in perpetuity. • in granting such a right some kind of compensation may be demanded. • through prescription • when a person uses a portion of land without the knowledge and consent of its owner such as pedestrian path way or for plying any vehicle for a continuous period of 20 years without even once being prevented from doing so, then the person acquires an easement of right of way by prescription. • Once such an easement is acquired, the servient owner is obliged to keep that portion of land free for movement of dominants owner’s vehicle. • However, if the easement is over a small strip of land used as padestrian path-way, the dominant owner cannot compel the servinant owner to widen it to allow his vehicles to pass over it. • The dominant owner is not obliged to maintain the affected strip of land nor he compel the servient owner to either pave it or maintain it the way dominant owner wants. The servient owner cannot dig trenches or cause any kind of obstruction to the dominant owner’s right of free movement 060133 & 060143

9. TYPES OF EASEMENTS • Right of way through an implied grant • Right of way through a neighbour’s land can be acquired through an implied grant. • For example, when a person sells a portion of his land which does not have a direct access of its own, it is implied that he would permit the purchaser to pass through his remaining portion of land. Normally such a right is given in the conveyance deed itself. • However, even if it is not expressly written in the conveyance deed, it is implied ; as no person can sell a portion of land without giving access to it. Subdivided Plots Plot B Original plot Means of access Plot A road road Existing Proposed Right of way by implied or Express Grant 060133 & 060143

10. TYPES OF EASEMENTS RIGHT TO OVERHANG BRANCHES OF TREES • The right of one owner to allow his trees to spread branhes over the neighbour’s land is not an inherent right; nor can it be an easement. • The neighbour can trim the branches if he want to. RIGHT OF PROSPECT • There is no prescriptive right to anything which is a mere matter of delight of pleasure. • A right to prospect such as a view of a lake ,sea or mountain can not be an easement. • If a person has enjoyed such a view because the neighbour’s plot was vacant or his building was lower in height , he can not prevent the neighbouring owner from building anything which will obstruct his view. • If an owner wants to sell a portion of his land with a condition that the purchaser will restrict the height of his compound wall or his building upto a certain height so that his view is not affected, he is required to provide a convenient to that effect in conveyance deed. • In such a case, he may not get the market price for the portion sold. • The property sold wit such a convenant becomes an “ Encumbered” property because of the restrictions imposed. 060133 & 060143

11. TYPES OF EASEMENTS • EASEMENT OF NATURAL WATER COURSES • The right to discharge surplus water into neighbouring land situated at a lower level is a customary casement. • By law, no one can obstruct the flow of water through nallas and streams. • One can only regulate it by building channels to give it a certain direction and restrict the area through which it can flow smoothly. • Local authority regulations require that an owner or developer is required to discharge surface water in a manner which is civic administrations sewerage and drainage schemes ;so that no flooding occurs. • The civic authorities can provide open channel drains through private lands if it is in public interest to do so. EASEMENT OF ACCESS TO WELLS , POND , etc • The right to pass through private land to obtain water for daily needs from well, ponds, lakes, is acquired by prescription • If people have been passing through private land for a period of 20 years without objection, they acquire the right of using such water. • The same applies to the right to catch fish in a pond or well situated in a private land 060133 & 060143

12. TYPES OF EASEMENTS EASEMENT OF LIGHT AND AIR • Legally, every owner is entilted to receive light and air for his building which would come to his land in a natural way. • The local authorities prescribe marginal open spaces on all sides depending upon the height and width of the building. • Internal courtyards are provided for admitting sufficient light and air where construction is permitted upto the edge of the owner’s boundary. • The right to acquire light and air from the neighbour’s land is a prescriptive easement. • If a owner A constructs a building touching his boundary and receives light and air from the neighbouring B’s property for a period of 20 years, • he acquires the easement of light and air. • The openings in such walls become “Ancient Lights”. • Once such an easement is acquired, owner B is obliged to develop his own property in such a way that the light enjoyed by owner A is not affected. 060133 & 060143

13. TYPES OF EASEMENTS ANCIENT LIGHT • When an owner acquires easement of light and air, the openings ( windows, openings with or without grills) in the walls deriving light and air from the neighbour’s property is called “Ancient Light”. • The servient owner cannot carry out any construction in his lown land which will substantially diminish the light enjoyed by such ancient lights. • He must have sufficient open space in the form of an external chowk as shown in the figure. AL AL 45* AL Section Servient heritage A B Servient heritage AL External Chowk for Ancient light Plan E-3 Method of Accommodating Easement of Light 060133 & 060143

14. TYPES OF EASEMENTS CONTINUOUS EASEMENT • A continuous easement is one whose enjoyment is continual without the act of man. • A right of receiving light and air from neighbour’s land is a continuous easement . • It is a continuous act on servient heritage, such as right to discharge rain water or laying of drain or services like the electric or telephone cable, through his land. DISCONTINUOUS EASEMENT • It is an easement which requires the act of man for its enjoyment. • A right of way acquired by A over B’s property is a discontinuous easement. • Every step A takes when he walks on B’s land is taken for enjoyment of easement right ; but his walking may not be a continuous process. • He may do it a few times a day or once on a while, whenever necessary. • Only if A builds a macadum or pucca road through B’s property without B’s knowledge and consent , it becomes a continuous easement. 060133 & 060143

15. TYPES OF EASEMENTS APPARENT EASEMENT • An apparent easement is something the existence of which is seen by some permanent sign ; which upon careful inspection by a competent person would be visible to him. • An easement of light and air is an apparent easement because the existence of an ancient light can be seen. • Discharging of rainwater from A’ roof into B’s property is an apparent easement because one can see the rain water actually falling in B’s property. • Construction of tar road road over B’s property is an apparent easement, however if is only a pathway, then it is a non apparent easement. • An open drain passing through B’s land is an apparent easement ; but an underground drain or service lines are examples of non-apparent easements unless some kind of manhole or inspection chamber in B’s land. Distinction between CONTINUOUS EASEMENT and DISCONTINUOUS EASEMENT • This distinction assumes importance when the question of acquisition of easements or abondonment of easement arises. • It is easier to prove the existence of a continuous easement as the act is constant and uninterrrupted. • For example receiving of light and air. However proving the existence of right of way may be difficult because it is not a continuous act.At times when the dominant owner is away from his place of residence for a long period,it can lead to abandonment of easement right.In a court case it is easier to establish the enjoyment of an apparent and continuous easement, than the non-apparent and discontinuous easement. 060133 & 060143

16. PERMANENT EASEMENT • It is an easement which can be enjoyed by the dominant owner permanently and without interruption caused by the servient owner. • For example, easement of light and airis enjoyed as long as the wall in which “Ancient Light” is situated intact. • Certain easements like right to perform religious act or to catch fish in the neighbour’s pond are limited to a certain period of the year or season. NATURAL RIGHTS OF OWNER • The owner of every immovable property has a right to enjoy his property in the following five ways: • He has an exclusive right to build on his land any structure which is permissible under the local regulations • He has the right to receive fresh air which is not polluted by other persons. • He has a right to live in his house in physical comfort which is not unduly affected by noise or vibration caused by his neighbours. • He has a right to receive light and air which is received vertically from his own land. • He shall enjoy natural support for his land, trees and buildings which is provided by subjacent(lower) soil of another person. 060133 & 060143

17. RIGHT TO COMMIT NUISANCE Nuisance means an act or source of annoyance or an obnoxious act due to which a person’s physical comfort or well being is affected materially. • Under certain conditions, right to release smoke in the atmosphere or to carry out quarrying operations to run a factory or workshop which generates noise or vibrations has been accepted as easement by prescription. • However there are other remedies such as environmental pollution control laws which are available for mitigating such nuisance. • RESTRICTIVE NATURE OF EASEMENTS: • The law of easements stipulates that easements are of restrictive nature. • it means that there are certain restrictions imposed on the servient heritage; but that doesn’t mean that the servient owner cannot develop his property at all. • He is required to do so by honouring the legal restrictions created by the easements. • The effect of an easement doesn’t exclude the ordinary user of servient heritage. In other words, the servient owner can build a build a building on his plot by allowing sufficient open space for enjoyment of life and air by the dominant owner. 060133 & 060143

18. The right of support of soil by adjacent soil and natural flow of water is natural right. • It cannot be disturbed by the neighboring owner. • The right to support is not disturbed as long as the neighboring land is not excavate. • If the neighboring land is to be excavated for building a basement, is the responsibility of the owner excavating the land to provide shoring or providing a strong retaining wall within his own land, at his own cost in Illustration E-4. • if the owner of adjoining land suffers any loss, it must be compensated by owner who disturbs the natural support of neighbor's land. Retaining wall Excavation for Basement Natural earth Illustration E-4. Easement of Support 060133 & 060143

19. How easements are created: • Easement are created in four ways namely by • express grant, • prescription, • implied grant and by • custom • An express grant is either in the form of a will or it can be written in a coveyance or partition deed. • In the other words, before the owner of a properties dies, he can grant certain rights and privileges to the neighbourers or other persons over his immovable property. • A convenant such as leaving a certain open space between buildings ( which is more than required by local regulations) is also an express grant. • In the case of express grant, a certain amount of “give and take” may be involved. It could also be on the basis of financial consideration paid or received. It can be as a result of natural love or as a reward of loyal services. • A lessee of leased land cannot create an easement by express grant without the knowledge and written permission of the lessor. 060133 & 060143

20. How easements are created: • An easement by prescription is created if the person has enjoyed certain rights and privilege for continuous period of 20 years. • These easement include easement of light and air, right of way, fishing rights, right to draw water from wall, etc • If a person has been making payments for some use of land, he cannot claim it as an easement by prescription. • A customary easement is created by a religious or social custom of a community. Right to perform certain religions ceremonies, or to hold melas on certain occasions are some of the customary easements which are enjoyed by the community for the generations. • A tenant cannot claim easement over the landlord’s property. • For example if a tenant has been enjoying light and air from two sides and the owner wants to create an extension on one of the sides blocking window on one side, the tenant cannot prevent landlord from making such an extension. • Similarly if the tenant has developed a portion of land as a garden, he cannot prevent from occupying the land for such use. 060133 & 060143

21. Easement of necessity • An easement of necessity is an easement without which the property in question cannot be enjoyed at all. • For example, A sells a portion of his land to B which does not have another independent access. • In such a case, there is an implied grant of a right of way. • No owner can sell a portion of his land which becomes “Land-locked” or without an access. • An easement of lateral support in the case of semi detached houses is also an easement of necessity. • However, the easement of necessity is decided on the basis of absolute necessity. • it means that the person has no other means except the one claimed as necessary to enjoy his property. • In the case of an easement of right of way, the dominant owner cannot say that zig zag road should be turned into a straight road to facilitate movement of his vehicle or to reduce his walking distance. 060133 & 060143

22. Essential requirements for creation of an easement For any easement of any kind to be created there are some essential requirements. Firstly, there should not be any obstruction, physical violence or quarrel between the person claiming easement and the owner of the property of any time during the period of 20 years. Secondly, the property should be open. In other words it should not have been acquired by stealth or by deliberate concealment. It should be under normal circumstances so that any vigilant owner would have a track. Thirdly, it should be without the implied or express permission of the owner. • A discontinuous easement like the right of way is never exercised every moment . • It is enough if it is exercised on proper occasions. • The mere fact that a time interval elapse between successive act of user do not cause a break in the period of enjoyment. • This equally applies to easements like drawing water from well, passing of drainage and fishing rights. • It also applies to easement of light and air because at times the window shutters may have been closed to prevent rain, sunrays and excessive breeze. 060133 & 060143

23. An easement must not be used for any purpose not connected with enjoyment of dominant heritage. The dominant owner must exercise his right in the right manner in which it is atleast inconvenient to the servient owner. • When the servient owner owner requests that the use by the dominant owner be confined to a particular area or portion of servient heritage the dominant owner will agree to it if its not detrimental to his enjoyment of easement. • A dominant owner can claim compensation or file a suit for obtaining an injunction if his easement right is disturbed in any way. • For example, if B plants trees which obstructs the light and air enjoyed by A as easement , he can either get the trees cut or demand compensation. 060133 & 060143

24. The rule of 45 degrees: • This rule provides that as long as the dominant owner receives light at cill level of his ancient light at an angle of 45 degree to the horizontal, it is considered to be sufficient light. • This rule is not absolute. In other words it is only used as a prima facie evidence that there is no substantial diminution of the light to the ancient light created at the lowest level of the building. ( see illustration E-3) • It is necessary for the dominant owner to prove that he cannot or would not be in position to carry out his accustomed business in the dominant heritage as beneficially as he had done before the infringement of his easement. • A remedy is available if the physical comfort of the dominant owner is deminished to a great extent. • It may be possible for the dominant owner to create some opening in the same wall and make up the deficiency; but that is not a ground on which a servient owner can obstruct light entering through ancient light. • Even an argument that the dominant owner will receive “reflected light” from the new wall of the servient owner is not acceptable in laws because it is different kind of light. 060133 & 060143

25. Measurement of angle of light : • A dominant owner can demand inspection of drawings of proposed extension which the servient owner intends to carry out to the servient heritage. • If the servient owner declines to cooperate the dominant owner can take search from municipal records to ascertain if his light and air are likely to be affected. • If the servient owner is carrying out illegal construction , the dominant owner will have to take the matter to the court and obtain injunction. He will have to prove to court how and to what extent his light will be affected by taking measurements with the court’s directive. An illustration of such measurements has been shown in illustration E-3. AL AL 45* AL Section Servient heritage A B AL External Chowk for Ancient light Plan E-3 Method of Accommodating Easement of Light 060133 & 060143

26. Remedies for disturbance of easement: • To obtain relief from a court of law either in the form of injunction in the case of a threatened action or as compensation for an act already committed, the dominant owner must file a suit within two years of infringement. • Otherwise it is regarded as acceptance of servient owner’s action and the suit is liable to be dismissed. • The onus of providing that the servient owner is about to disturb his easement rights has already done so , lies with the dominant owner. • He may have to submit a report and supporting drawings prepared by an expert, along with appropriate photographs, to convince the court that his right has been affected. • The court may grant injunction if the action is not complete. The court may award financial compensation if it feels the damage is substantial. Prevention of easement: Every owner must be vigilant enough to ensure that no easements are created on his land by adjoining owners or member of the public. Following are some ways in which various easement can be prevented. • Prevention of easement of light and air • Prevention of easement of right of way • Prevention of easement of services • Protection of easement of support 060133 & 060143

27. Prevention of easement of light and air: • When owner a realizes that neighbour B is building a wall close to his boundry and may provide openings in it to derive light and air from his property, the first step he can take is to talk to neighbour B and get him to sign an agreement stating that he will not claim easement of light and air. • Once there is such a written agreement, the neighbour B can enjoy the light and air as long as owner A build a building on his own land. • If however, B refuses to sign such an agreement, A has no other remedy than to erect a screen temporary or permanent, in his own land, with his own money, to prevent B from enjoying light and air fom his property. Such a screen is erected as close to the boundary of A as possible< as shown in illustration E-5. a must maintain a record of evidence through photograph etc. to establish that B has not enjoyed light and air from un interrupted air period of 20 years. A temporary or permanent screen W W Screen W W W Plot B Plot A Plot B Plot A W SECTION Compound wall PLAN 060133 & 060143

28. Prevention of easement of right way: • If owner A finds that owner B or other members of public are passing through his land; • he must erect a fence around his land to prevent people from using his land as a thoroughfare. • In many cases apart from a fence, a sign is fixed at prominent place to warn people that they may be prosecuted for trespassing. • If despite a fence and warning sign, people persist in passing through his land, he must lodge a police complaint against the trespassers and get them arrested. • As an alternative he must provide security staff who will prevent trespassing. • If the owner A has maintained the record of police complaint and photographs fence etc. a claim of easement cannot succeed. 060133 & 060143

29. Prevention of easement of services: • If the owner B finds that owner A is providing a drain or a water pipe or an electric cable through his land he can physically remove all such things from his land. • If owner B persists in his action , he can lodge police complaints againts owner B. as a last resort he can take matter to the court. • If however the owners has acquired easement he will have to divert B’s drain at his own cost without putting B to any inconvenience , as shown in illustration E-6. • this can be done by first laying the drain in the new position, connecting it with old drain in a convinient position and then disconnecting and removing the old drain. • The same procedure applies to other services such as electric or telephone cables and water pipelines. Dominant heritage Old drain New drain line Serviant heritage illustration E-6 Method of accommodating services Road 060133 & 060143

30. Protection of easement of support: In the case of owner A wanting to provide basement in his own plot, he must construct a retaining wall in small lengths so that the entire stretch of B’s compound wall is not affected. If B’s building is close to the boundary he must provide shoring for B’s building and support trees in B’s compound so that there is no sinking of foundation or plinth or uprooting of trees. In the case of additions and alterations in row houses, the owner carrying out additions must adequately support his neighbor's structure and the party wall. Such support would involve provision of dead shores and flying shores as shown in illustration E-1. it is also advisable to insure against accidental damage to the neighbor building. Extinction of easement: An easement can be extinguished by the dominant owner by releasing it to the servient owner. This can be done through an agreement in writing, preferably on stamp paper. It is not necesssary to register such an agreement. Such a release of any easement can be entirely voluntary or it can be due to some compensation being paid by the servient owner. This kind of release is called express release. There can be an implied release also. 060133 & 060143

31. Some of the way of extinguishing easement are as under: • The dominant owner makes a permanent changes like shifting wall, altering the position of ancient lights; or closing the ancient light permanently. Such acts amount to release of easement by dominant owner. • If the dominant owners gives up the right of way for a period of 20 years, it amounts to extinction of easement. • If the dominant owner changes the over-hang of his roof and the rain water stops falling in the servient heritage, it leads to extinction of easement. • If the domaint owner constructs a new drain in his own property or lays cables in his own land and stops taking advantage of the old drain or cable, it amounts to extinction of easement. • If as a result of availabitlity of piped municipal supply or a bore well sunk by the dominant owner , he stops using well water from the servient owner’s land, the easement is extinguished. • An easement of necessity is extinguished when the need for such an easement comes to an end. For example, if A’s alnd is inaccessible at the time of scale of a portion of land but a new road is built which gives direct access too A, the right of way through B’s land is extinguished. • An easement is extinguished as soon as the dominant owner is incapable of enjoying it. 060133 & 060143

32. 8)An easement is extinguished when either the dominant heritage or the servient heritage is completely destroyed. Such destruction can take place due to forces of nature such as floods, earthquakes or fire. However, the easement is revived if the property is restored within a period of 20 years from the date of destruction. 9) An easement is extinguished when the dominant owner acquires ownership of the servient heritage. 10) An easement is temporarily suspended when either the dominant owner or the servient owner occupy each others heritage’s for a limited period. 11) All easements are extinguished when the government acquire any land after paying compensation to the owner and all the interested persons who claim easements on it. Adverse possession : When A occupies B’s land or a portion of it and creates some kind of visible sign of physical occupation in the form of a compound wall or a permanent or semi permanent structure for a period of 12 years, he can claim the ownership of such land by law. This meant that A has become owners of B’s land by adverse possesion. There is an essential difference between adverse possession and easement. In the case of easement the ownership of land continues to remain with the servient owner. The property merely becomes an encumbered property owing to easement. 060133 & 060143

33. Adverse possession: When A occupies B’s land or a portion of it and creates some kind of visible sign of physical occupation in the form of a compound wall or a permanent or semi-permanent structure, for a period of 12 years, he can claim ownership of such land by law. This means that A has become owner of B’s land by adverse possession. There is an essential difference between adverse possession and easement. Incase of easement the ownership of land continues to remain with the servient owner. The property merely becomes an encumbered property owing to easement Out House PLOT A PLOT B B’s boundary B’s compound Wall B’s encroachment E-7 ownership by adverse possession 060133 & 060143

34. Licence: • Licence is a written permission given by the owner of a land to another person or persons for doing a particular act on his land or property for a limited period. • Such acts can be of gathering of fruit, fishing in lake or well, using it as an open stacking place or some such act. • Such licence can be terminated by either party on giving a written notice even before the expiry of period of licence, by making such a provision in the agreement. • A licence is normally given on payment of a licence cannot become a tenant. • Lease : • Lease of land is quite distinct from an easement or a licencee. • In the case of a lease, the owner of the land- the lessor, gives it to a lesse for a period of ten, twenty or ninety nine years on payment of ground rent. • A legal lease deed is entered into between the lessor and the lessee, stipulating various conditions of lease. • Depending upon the period of lease, the lesse can build either a temporary or pucca building on the leased land. • A lessee pays a certain amount as ground rent to the lessor during the lease period. A lessor is required to disclose existence of any easement at the time of giving lease. In conclusion, even though matters related to easements are largely handeled by experts a project architect must know how to make adjustment or compromises in his design in order to safeguard easements. When face with a complex easement problem, he can advice the owner to seek expert advice. 060133 & 060143

35. CASE Case Note: The question before the court was whether lessee can acquire easement of way or flow of water over the land of the lessor, i.e. land which has not been leased to him. The court held that this cannot be the case, as the lessee derives his right of occupation of property through the lessor and hence cannot have easement over other the land of the lessor. This document is available at www.ielrc.org/content/e7803.pdf 1980Supp(1)SCC777 IN THE SUPREME COURT OF INDIA Decided On: 13.03.1978 Madan Gopal Bhatnagar v. Smt. Jogya Devi and Ors. Hon'ble Judges: Jaswant Singh and V.R. Krishna Iyer, JJ. JUDGMENT Jaswant Singh, J. 1. This appeal by special leave which is directed against the judgment and older dated November 17, 1976 of the High Court of judicature at Allahabad in S.A. No. 886 of 1975 raises a very Interesting question of law via. whether a lessee of land taken by him for building a house can for his own benefit acquire an easement of way or of flow of water over other land of his lessor. Though this question seems to have arisen a number of times in different High Court of India, it is a question of first impression so far as this Court is concerned as it was left open in Chapsibhai Dhamjibhai Damed Purusbottam (1971) Supp. S.C.R. 335. 060133 & 060143

36. 2. For a proper determination of this question, it is necessary to refer a few provisions of the Indian Easements Act, 1882 (Act V of 1882)(hereinafter called 'the Act'). 3. Section 4 of the Act defines "Easement" as a right which the owner or occupier of 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. 4. Section 12 of the Act specifies the persons who can acquire easements and provides that an easement can be acquired by the owner of an immoveable property or, on his behalf, by any person in occupation of the same. 5. Section 15 of the Act deals with the method of acquiring easements. 6. The words "owner...or on his behalf by any person in occupation of the same" occurring in the aforementioned Section 12 of the Act are very significant. They no doubt indicate that it is the owner of an immoveable property or a person in occupation of such property who can acquire an easement but it is to be noted that the person in possession of immoveable property like a lessee or a montgagee who is not an owner thereof cannot. acquire easement for his own benefit as in that event he would be violating the provisions of Section 12 which clearly interdicts the acquisition of an east men thy a lessee or a montgagee for his own benefit. As in the instant case, the appellant was no an owner but only a lessee of the immoveable property at that time he is altered to have commenced using the adjacent land belonging to his landlord as a passage or as a means for a discharging waste water, he can not tack the period during which he was using the by or discharging the water on the other land of his land of his landlord during the period of the lease to the period smarting from the point when he commenced doing so as an owner. He could, of course, have started prescribing for such easement from February 18, 1970 when he purchased the right of reversion from his lessor be cannot tack on the period of his prior enjoyment as lessee to the period of enjoyment since 1970 when he put chased the right of rversion and became the absolute owner. This conclusion receives support from a number of decisions of the Indian High Court. In Udit Singh and Ors. v. Kashi Ram (I.L.R. 14 (1892) All. 185), a Full Bench of five Judges of Allahabad High Court held that a tenant cannot as against his landlord acquire by prescription an casement of way in favour of the land occupied by him as a tenant over the of the land belonging to his landlord. 060133 & 060143

37. The following observations made by Edge. G.J. in that decision are worth quoting : I should point out that the tenant does not allege that his holding had at the time it was let to him the right of way in question as appurtenant to it, nor does be allege that the landlords granted any such right of way as appurtenant to the hoiding, nor again does he allege that the way claimed was what is known in law as a way of necessity he merely alleges that he as the tenant in the occupation of his hoiding had by user obtained a light of way against his landlords, over their adjoining land. In my opinion it is contrary to common sense that any such right as is here alleged could possibly have been acquired. Such light could only have been acquired, if at all, in respect of the holding occupied by the plaintiff. That holding is the landlords' holding, and they, the lardlords, are in possession of it through their tenant the plaintiff. The plainiff is not an owner claiming a right in respect of dominant tenement ever another, servient, tenament; he is not claiming this right far or on behalf of his landlords; but he is claiming it adversely to them, although for and on behalf of their own property. The law, as conceive it to be, was very concisely put and fllustrated by Lord Cairns in his judgment in Gayford v. Moffatt (L.R. 47 Cn A 133) Tim was a case in which a tenant was claiming a right of easementm over his landlord's property as a right acquired by the tenants not granted by the landlord Lord Cairns said But it is not necessary to examine the user, for this reason, that if there is a person to whom the owner of two closes has demised one of them, and if in order to gut at that one there is a necessity to cross the other close which was not demised, and if, in the course of years, from the circumstance that the landlord had no particular occasion to the close for any other purposes, of that be was not strict in obliging his tenant to adhere strictly to the way, he had allowed the tenant for his convenience occasionally to make deposits of this kind on other parts of the close, still it is utterly Impossible that by such a course of proceeding the truant as against his landlord could acquire any enactment whatever. 060133 & 060143

38. 7. In Jevnath Ali v. Allabudin (1 Cal. W.N. 151) it held that a tenant is always a tenant and never an owner of the land he always derives his rights from the lessen; and as the latter cannot have the right of enjoyment of an easement as against himself, so neither can his tenant against him. To the similar effect is the decision of the Madras High Court in Basawangudi Narayan Kamthy v. Lmgappa Shettn (38 Mad L.J. 28) where it was painted out that an easement by prescrption, as seated in Section 12 of the Act, could only be acquired by persons who have been owners of immovable property and not mere lessees; and that if a lessee by his what acquires any easement over another's land, he acquires it for the benefit of the tenements he is holding; and as that holding belongs to his landlord, the benefit will go to the latter. 8. In Abdul Bashd and Ors. v. B. Baham Saran (A.I.R 1988 All 293), relying on the observations of Lord Cairns in Gayford v. Mofiott (1869) 4 Ch. A. 133, to the effect that it would be inequitable for a lessee to prescribe against the landlord as regards the acquisition of a right of way or any other caserne it, u was held by a Full Bench of the Allahabad High Court that a lessee of the land which he has taken for building purposes is not in the position of an owner of immoveable property under Section 12 of the Act for the purpose of a right of way and hence such person cannot acquire the right of way by easement over other land owner by his lessor. 9. In Doma v. Ragho (I.L.R 1917 Nag. 254). it was held that no easement by prescription can be acquired by a tenant against his landlord 10. Again in Girdhar Singh v. Gokul (1975 Raj. L.W. 299), it was held that a tenant cannot acquire a prescriptive right of easement in land or well belonging to the landlord. 060133 & 060143

39. 7. In Jevnath Ali v. Allabudin (1 Cal. W.N. 151) it held that a tenant is always a tenant and never an owner of the land he always derives his rights from the lessen; and as the latter cannot have the right of enjoyment of an easement as against himself, so neither can his tenant against him. To the similar effect is the decision of the Madras High Court in Basawangudi Narayan Kamthy v. Lmgappa Shettn (38 Mad L.J. 28) where it was painted out that an easement by prescrption, as seated in Section 12 of the Act, could only be acquired by persons who have been owners of immovable property and not mere lessees; and that if a lessee by his what acquires any easement over another's land, he acquires it for the benefit of the tenements he is holding; and as that holding belongs to his landlord, the benefit will go to the latter. 8. In Abdul Bashd and Ors. v. B. Baham Saran (A.I.R 1988 All 293), relying on the observations of Lord Cairns in Gayford v. Mofiott (1869) 4 Ch. A. 133, to the effect that it would be inequitable for a lessee to prescribe against the landlord as regards the acquisition of a right of way or any other caserne it, u was held by a Full Bench of the Allahabad High Court that a lessee of the land which he has taken for building purposes is not in the position of an owner of immoveable property under Section 12 of the Act for the purpose of a right of way and hence such person cannot acquire the right of way by easement over other land owner by his lessor. 9. In Doma v. Ragho (I.L.R 1917 Nag. 254). it was held that no easement by prescription can be acquired by a tenant against his landlord 11. In view of the foregoing, we have no hesitation in holding that the High Court was right in disallowing the claims of the appellant and restoring the decision of the trial court in reversal of the decision of he lower appellate court. We must, however, make it plain that we say nothing in respect of a tenant's right of acquisition of easement of light and air or support for the building erected by him on the leasehold, as we his not concerned with the same in the present case. We would also like to add that it quite often happens that in many States, land reforms measure confer the substantial part of the ownership on tenants leaving only the husk of landlordism in the landlord himself. In such a situation the question may well arise whether the principle of acquisition of easements by the tenant who is the substantial owner, is permissible or not over landlord's other lands. This question need not engage us here because the appellant is cot any such tenant. In the result, the appeal fails and is hereby dismissed but without any order as to costs. 060133 & 060143