UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

BA.LL.B. (HONS.)

SEMESTER-V

ACADEMIC YEAR: 2021

SESSION: AUGUST-DECEMBER, 2021

SUBJECT OF: TRANSFER OF PROPERTY ACT, 1882

BATCH: 3

TOPIC: CRITICAL ANALYSIS OF EASEMENT LAW IN INDIA

SUBMITTED BY: ADARSH SINGH (120)

VISHISHTA MISHRA (114)

RAGHUVANSH MISHRA (124)

VISHESH SINGH RAIKWAR (113)

Critical Analysis of Law relating to Easement in India

Introduction and Meaning:

An easement is a property owner's right to compel the owner of another property to allow
something to be done, or to stop doing something on the remaining part for the benefit of the
rental property. Example - right of way, right of light, right in the air etc.

The right to live in one place is almost the same as the right, which deprives the owner of one
property the right to enjoy the property of another person or more than another person's
residence, as a result of which the latter is obliged to suffer or avoid doing something to him.
Your accommodation for the benefit of the former. The right of access must have the following:

 Dominant and survient tenement.

 Accomodation of the dominant tenement.
 Beneficial to Dominant tenement.
 The ruling and surviving owners must be separate persons.
 The easementary rights should give the principal owners the right to do and continue to
do something or to prevent and continue to prevent the doing of something, or in relation
to, the living space; and
 The item must be in a specific or well-defined condition and be able to form the title of
the grant.

Essentials Of Easement:

1. Dominant and Servient Heritage:

In order to enjoy the right to a comfortable stay, the necessary presence of two properties namely
outstanding values and service is required. This is because by definition, it is a right exercised by
the owner or occupier of one land for the benefit of his or her land, over another person's land. A
ruling and active asset cannot be one. Therefore, the presence of two structures and their
separation from each other is important.

2. Separate owners:

In order to exercise the right of easements, the owners of two buildings will be different and not
one person.

3. Beneficial Enjoyment:

The purpose of the easements is that the outstanding owner enjoys it in a way that combines
clear and stated benefits.

4. Positive or Negative:

Eases can be both good or bad. The former refers to a right in which a prominent owner performs
a certain act in order to exercise a right over the land of an employee owner. However, the latter
refers to the act of prevention. By misinterpretation the owner in charge prevents or restricts the
service owner from performing certain actions or actions. On the right of liberty the owner of a
large estate may act or restrict the owner of the property from doing something but will not hold
the employee owner to do something for him or her.

Illustrations-

1. ‘A’ being the owner of certain land or house has a right of way over B’s house, adjacent to his
house, to move out of the street. This is known as right of easement.

2. A voluntary dedication of right by ‘A’ to the public for passing or re-passing over a surface of
certain land is not a right of easement.

3. A’s right to go on his neighbour B’s household for fetching water from the well for the
purpose of his own household is a right of easement. Here, the way to the well is through B’s
land only. Hence, A has an easementary right to pass through B’s household.
Indian Easements Act, 1882

The Indian Easements Act, 1882, defines the term "easement." According to Section 4, an
easementary right is a right held by the owner or occupier of land on land that is not his own,
with the goal of providing beneficial enjoyment of the land. This privilege is conferred since an
occupier or owner cannot fully enjoy his own property without it.

It comprises the right to do or continue to do something, as well as the right to prevent or

continue to prevent something, in connection with or in respect of any other land that is not his
own, for the enjoyment of his own land.

The term 'land' refers to everything that is permanently tied to the earth, whereas 'beneficial
pleasure' refers to any convenience, advantage, amenity, or requirement. The land for which the
easementary right exists is known as Dominant Heritage, and the owner or occupier referred to
under the provision is known as the Dominant Owner. The Servient Owner is the owner of the
property on which the liability is imposed, and the Servient Heritage is the land on which the
liability is placed to perform or prevent something.

 Classification of Easements

The easements are classified as follows in Section 5 of the Indian Easements Act of 1882:

 Continuous or discontinuous- Continuous easements are those that can be enjoyed

indefinitely without the intrusion of any human action or behaviour. There is no human
intervention, which gives the property a unique appeal. On the other hand, a
discontinuous right of easement is one in which a man's intervention is required for
enjoyment. It is important to do a human act on the servient heritage in this type of
easement.
 Apparent or Non- Apparent- An apparent easement is one whose presence may be
confirmed by a permanent sign. A diligent analysis and adequate forethought can reveal
it. Express easement is another name for it. To determine if a right exists, an examination
 is necessary. For instance, there is a drain that runs from A's land to B's land and then
into an open yard. This is an obvious easement that can be seen with a clear inspection.
Non-apparent easement, on the other hand, is the total opposite of apparent easement. An
inspection does not reveal this type of easement. As far as I know, there is no such thing
as a permanent sign. As the right is in use but not apparent, it is referred to as an invisible
easement.

Conditions of Easements

An easementary right might be permanent, for a set number of years, or for a specific length of
time. It can also be subjected to periodic interruptions or be exercisable only at a certain location,
during specific hours, and for a specific or specific purpose. This right can also be granted on the
condition that it will become invalid or voidable if some event occurs or if some act is not
performed. Section 6 of the Act specifies certain limits or criteria in relation to the right of
easement.

 Restrictive Easements- Section 7 provides that easements limit some rights, including
the following:
 The privilege to enjoy exclusivity.
 Right to benefits resulting from the scenario.
 Profit a Prendre- Profit a prendre is included in the definition of easements in The
Indian Easements Act of 1882. A right to remove soil from another person's land for the
purpose of creating pottery is an example of a profit a prendre. This is essentially a profit
gained off someone else's land. Other profit a prendre examples -
 Fishing rights
  collect the fruits of trees throughout the season.
This is a right that can be exercised on land that is part of the dominant heritage. As a
result, there will be two distinct heritages: dominant and servient. This privilege is
exercised by the dominant heritage owner on the servient owner's land.
EASEMENT LAW IN INDIA

An easement, unlike a lease, does not grant the holder "ownership" of the property. As a result,
an easementary right is established for specific redress against violations of common
fundamental rights. Any wrongful interference with the right of way constitutes a nuisance in the
context of the right of way. A right of way, on the other hand, does not grant the grantee or those
lawfully using the way under the grant exclusive use of the land over which the way exists, nor
does every obstruction of the way constitute an unlawful interference, and no action would be
taken unless the easement granted is substantially harmed.

The right to access light does not imply the right to have the same amount of light all of the time.
If the diminution is sufficient to make the occupation of the house uncomfortable and prevent the
owner from carrying on his business as profitably as he did previously, the dominant owner is
required to show that the diminution has interfered with his ordinary occupations of life and has
resulted in a nuisance. If the diminution is sufficient to make the occupation of the house
uncomfortable and prevent the owner from carrying on his business as profitably as he did
previously, the dominant owner is required to show that the diminution has interfered with his
ordinary occupations of life and has resulted in a nuisance.

Courts normally do not intervene by way of injunction in matters of easementary right of light
when the courts judge that the obstruction of light is minor and the injury incurred is minor, save
in rare and exceptional cases. Again, no damage is considerable unless it materially reduces the
worth of the dominant heritage, interferes materially with the plaintiff's bodily comfort, or
prevents him from carrying on his habitual business in the dominant heritage as profitably as he
had done prior to filing the complaint. In India, the court has discretion: it may or may not grant
an injunction based on the facts, such as when the injury is so severe that monetary
compensation would be insufficient. A required injunction may be granted in some instances. A
man who has a right to light and air that is impeded by his neighbour’s building will be granted
an injunction if he brings his claim and seeks for an injunction as soon as he can after the
building begins or it becomes clear that the projected building will interfere with his light and
air. However, the court must be satisfied that a substantial loss of comfort has occurred, rather
than a purely speculative or imaginative loss. A required injunction will not be granted if the
plaintiff has not filed his claim or sought for an injunction as soon as possible, has waited until
the building is complete, and then asks the Court to have it removed.

The Indian Easements Act governs the entire idea of easements in India, as well as its regulation.
Easement, as stated in Section 4 of the Act, is a right that the dominant heritage owner has over
the heritage of the servient owner in order to enjoy his own land in a favourable manner. It not
only defines what easements are, but it also categorises them. Easements might be mandatory,
prescriptive, customary, or quasi-mandatory. Following that, under Section 7 of the same Act,
easements can be acquired either by an express gift or as an implicit right under certain
circumstances. If an easement is to be obtained through an express grant, such a phrase must be
included in the deed of sale, mortgage, or other document in conformity with the manner of
transfer. Easements are a right in rem, which means that they are open to the entire world. It is
susceptible to constraints and can be limiting as well. Easements can be both beneficial and
harmful. Licenses, on the other hand, can only be of a positive nature. The Act also discusses the
regulations that govern the suspension, extinction, and revival of easements. It has also been
argued how easements differ from licences. Revocable licences are allowed under the Act, and
irreversible licences are allowed under Section 60 of the Act. According to Section 56 of the Act,
they can also be transferred. It's a right in personam, which means it's not available to the rest of
the world but only to you.

CONTEMPORARY USAGE OF EASEMENT LAW IN INDIA

The land must be identified at the time the easement is granted; London &
Blenheim Estates v Ladbrooke Retail Parks Ltd, in this case was “should B acquire additional
land?” and the answer was no because;“A right intended as an easement and attached
to a servient tenement before the dominant tenement is identified would in my view
be an incident of a novel kind. The land must be identified at the time the
easement is granted; London & Blenheim Estates v Ladbrooke Retail Parks Ltd, in this case
was “should B acquire additional land?” and the answer was no because; “A right intended
as an easement and attached to a servient tenement before the dominant tenement
is identified would in my view be an incident of a novel. The land must be
identifieed at the time the easement is granted; London & Blenheim Estates v Ladbrooke
Retail Parks Ltd, in this case was “should B acquire additional land?” and the answer was no
because; “A right intended as an easement and attached to a servient tenement
before the dominant tenement is identified would in my view be an incident of a
The land must be identified at the time the easement is granted; London & Blenheim Estates v
Ladbrooke Retail Parks Ltd, in this case was "should B acquire additional land?" and the answer
was no because;" A right intended as an easement and attached to a servient tenement before the
dominant tenement is identified would in my view be an incident of a novel kind".

CHOYIKANDY RAJAN V. VELANDI SREEMATHI

Plaintiff's claim is for the C schedule property, which is part of the defendant's plaint B schedule.
The plaintiff's registered holding is referred to as a schedule. The B schedule is a wide area of
land on the eastern side of the plaint A schedule. The Commissioner who came to inspect the
property was able to locate C schedule way by measuring it. The Commissioner recognised it
due to the fact that it was in continual usage. To meet a prescriptive right of easement of way, the
person who claims ownership of the land or acquires an easement right must demonstrate "usage
of the way as of right" as "an easement without interruption over a period of at least 20 years."
First and Second limb deals with easement of air and light. and lateral support.

However, another item was added to the third limb, which deals with prescriptive right of
easement of way, and the person who claims it must prove an extra condition as of right, which
is glaringly lacking in the first and second limbs of Section 15.

In order to claim an easement of way by prescription, the person claiming the right must prove
and establish user'as of right, in addition to the normal conditions of usage as an easement
without interruption for 20 years terminating within two years. The term "as of right" actually
refers to a user exerting an animus to utilise something as a right in defiance of the original
owner's interests. In this situation, the C schedule actually passes through the middle of the B
schedule property, splitting it into two pieces.

The presence and use of C schedule way were reported by the Commissioner who visited the
property. Between the easter road and the plaintiff's land, the entire B schedule property is
devoid of any fencing or compound wall. A schedule may be the common practise of crossing
over untended property to access a person's registered holding, but it cannot be placed into the
purview of user as of night until the needed animus to do so is proven by satisfactory cogent
proof.

When the land is unfenced and the way passes through the middle, bifurcating it into two halves,
the user can only be considered a permissive user and not a "as of right" user, unless the portion
of the property lying along the way has its own character as a ridge or an elevated portion,
distinct from the rest of the property, so that it can be considered a separate portion with its own
character other than a way. In this situation, the property is situated on an unfenced plot of
ground. Nothing was presented in evidence to show any other identifying character apart from
the remainder of the huge amount of property, in order to give the C schedule a distinct character
and nature other than the characters that show its user as a manner. As a result, there is a failure
to demonstrate an established user ‘as of right, which is one of the ingredients that makes up
Section 15's third limb. As a result, this court should not interfere with the First Appellate Court's
and Second Appellate Court's decrees and judgments. The appeal is devoid of evidence and
merits only dismissal, but at no expense.

An easement must accommodate the dominant tenement. The right must benefit the land,
not the individual owner of the land. The point is that the benefit must be enjoyed
by the owner for the time being of the land, rather than the personal advantage of the particular
owner.

Rectification:
In the case of simple light cases Courts usually do not interfere in a legal way where the courts
find that the light blockade is too small and where the damage is minimal, except for those rare
and rare cases. Here again it is necessary to understand that there is no great damage unless it
significantly reduces the value of the outstanding value, or actually disrupts the plaintiff's
physical well-being, or prevents him from continuing his familiar business as a major asset. who
did it before opening a case.

India Court has a choice: It may or may not issue an order depending on the extent of the injury
so that the compensation of the income will not be able to pay for adequate relief.

In some cases a mandatory order will also be issued. The court will issue such an order when a
man, who has the right to light and air blocked by his neighbor's building, has brought his case
and applied for a restraining order immediately after the commencement of the building, or after
it became clear that the intended building would interfere with his light and air. But the court
must be satisfied that the great loss of luxury was caused not only by a loss of myth or opinion.

If the plaintiff did not file his case or apply for an immediate injunction, and wait until the
building is completed, then ask the Court to remove it, a compulsory order will not usually be
granted.

CONCLUSION

Easement does not talk about the transfer of possesionary right to the Grantee it just an
enjoyment right that is transfereed to the former and that too is not absolute. The easementary
right is granted direct relief from certain infringement of basic rights that may be considered as
fundamental. In the case of the right to have way, any improper interference is a nuisance.
However, the right of way never allows the Grantee, or those who legally use the road under a
grant, to use only the land where the road is located or all roadblocks are similar to illegal
encroachment, and no legal action can be taken. unless there is a significant interference with a
given freedom. In the case of light access, it does not include the right to have the same amount
of light throughout. In the event of a decline, the dominant owner should demonstrate that the
decline has disrupted his normal life activities and results in trouble if it is enough to make the
housework uncomfortable, and prevent the owner from carrying his property. business in a
profitable way as it did before.
Courts have reiterated the fact that an easement is granted to the grantee only in the case where
there is absolute necessity of it and not otherwise. In the case of Hero vinoth Vs Seshammal
(AIR 2006 SC 2234) the Supreme Court held that easementary right it will remain so long as the
full necessity exists and such legal disposal would not apply to the seizure of the property - if the
right of way was granted to a recipient, it could not be canceled because that allocation had an
alternative.