Who May Obtain Specific Performance – Section 15 of Specific Relief Act

What is a Contract?

As per section 2(h) of the Indian Contract Act, 1872, a contract is a legally binding
agreement. A contract can be both written and oral agreement. Certain elements are required
to convert an agreement into a contract.

Section 10 of the Indian Contract Act, 1872 lays down certain essentials which are required
to form a valid contract, such as free consent, competency, lawful consideration, and a lawful
object.

What is Specific Performance of a Contract?

Halsbury said that specific performance is an equitable remedy given by the court in case of
breach of contract in the form of a judgment that the dependent perform the contract
following its terms and conditions. The accused party has the option to file a suit for specific
performance against the one who has not performed the contractual obligations.

Example: A has a piece of land that can be used for commercial purposes. A and B had a
contract, and B paid the half amount for purchasing his land and decided that rest of the
amount will be paid when A will transfer his land to B. But later on, A refused to sell his
land. B sued A and is entitled to recovery of the losses incurred by him.

In Beemaneni Maha Lakshmi vs Gandumalla Appa Rao, Honourable Supreme Court held
that in the case of a specific contract, the defendant is required to mention the losses in the
written statement which he might have suffered if he would have performed the specific
contract.

Who May Obtain Specific Performance?

According to section 15 of the Specific Relief Act, 1963, specific performance of a contract
may be obtained by:

1. Any party: Illustration: In a contract, there are two parties, A and B. Therefore, either of
the parties can obtain specific performance of the contract.

2. The principle or the representative in interest, of any party.

Representative in Interest: It is a broader term that includes an agent, assignee, or legal

representative.

Illustration: A has an interest in B’s property. Then A or his principal (if A is an agent) will
be considered as a representative in interest.
Conditions in which a representative in interest or his principal cannot obtain specific
performance of the contract are-

i. If the knowledge, ability, solvency, or any personal trait of such party is a material factor in
the contract.
ii. If the contract provides that his interest shall not be assigned.

Illustration: A made a contract with B for painting (skill). Hence A cannot obtain the specific
performance of this contract as it is made on an individual’s skills.

3. Any beneficiary is entitled to specific performance if the contract involves a marital

settlement or a compromise of disputed rights between members of the same family.

Illustration 1: A made a contract with B to marry C for a specified amount, and if B denied
paying then, A can obtain specific performance of the contract.

Illustration 2: A, B, C, D are brothers and have a joint property in the village. A, B, C made a
contract to give whole property to D. D is the beneficiary entitled here and can claim specific
performance of such contract.

4. If a tenant for life has entered into a contract in the due exercise of a power, the
remainderman;

Tenant for life: A person who is beneficially entitled under a settlement to possession of
settled land to use a property for the rest of his life. He is entitled to hold the legal estate but
only for the duration of his life.

Illustration: A gave his house to B for his life but had a contract that after his death, the
property will accelerate to C.

Remainderman: A person who inherits or is entitled to inherit property upon the termination
of the estate of the former owner. A remainderman is a person who has an interest in the
remaining property and will eventually own it at some time in the future.

Illustration: A gave his house to B for lifetime. B is a tenant for life but had a contract that
after B’s death, the property will accelerate to C. C is remainderman.

5. A reversioner in possession, if an agreement is a covenant entered into with his

predecessor in title and the reversioner is entitled to the benefit of such covenant;

Reversioner in possession: Any person to whom the property is reversed back, and he is in
possession of that particular property. When a property owner effectively transfers property
to another yet retains some future rights in the property, it is known as a reversioner in
possession.

Covenant: It is a legal promise or an agreement between two people, or companies, or even

countries.

Illustration: A (grandfather), B (father), and C (son). A does not want to give his property to
B. Instead, he wanted to give his property to C. A entered into a contract with Z (tenant for
life) to enjoy his property till his life and pay the rent to C, and after Z’s death, the property
will be accelerated to C (reversioner in possession).

Here, the reversioner in possession also has the right to obtain the specific performance of the
contract entered by another person.

6. If an agreement is a covenant and the reversioner suffers material injury in case of

breach of contract, then reversioner in remainder will be entitled to the benefit.

The reversioner will be responsible for the injury caused by the non-performance of the
contract by the remainder.

Illustration: A gave his house to B and asked to pay the rent to C. If B does not pay the rent,
then C has to bear the injury caused.

6A. when a limited liability partnership has entered into a contract and subsequently
becomes amalgamated with another limited liability partnership, the new limited
liability partnership arises out of the amalgamation.

This clause has been inserted by the Specific Relief Amendment Act, 2018.

Illustration: A (LLP) merged into B (LLP) and formed C (LLP). Therefore a contract entered
by A can be specifically performed by C as it emerged as a result of an amalgamation of A
and B.

7. If a company merges with another company under the terms of a contract, the new
company will form as a result of the merger (amalgamation).

8. If the promoters of a company entered into a contract before for the company’s
purposes before its incorporation and such contract is warranted by the terms of the
incorporation, the company has to accepted that contract and communicated such
acceptance to the other party of the contract.
 Rectification of Instruments

Introduction

Rectification of an instrument is the process of making changes to an instrument.

This prevents the parties from fraud or mutual mistakes of either party to the
contract. Section 26 of the Specific Relief Act, 1963 states about rectification.
However, it is at the discretion of the court to grant rectification. The only two
grounds on which rectification can be claimed are fraud and mutual mistake of
parties and only the parties or their representative can file a suit for the same.

If any written contract does not convey the real intention or the specific agreement
made by the parties, the court can order rectification. Modification to a contract can
be made under the directions of the court and the changes made resume the parties
to a place where they would have been if the error hasn’t been made. It must be
proved that the parties had a consensus of mind to the contract but was entered
incorrectly when reduced to writing

Specific Relief Act, 1963

SRA was enacted to provide remedies against contractual and civil rights breaches.
This comes into play when the compensation or damages provided are not
adequate.
A legal instrument is a legal document that is in written form and is legally
enforceable. It may confer certain rights, duties, promises, and obligations to the
parties of the document. Rights and liabilities may be created, transferred, restricted,
or extended. “Rectification of an instrument” means correcting the instrument’s
errors. Under the Specific Relief Act, rectification is seen as an impartial remedy of a
grant by the court when facts do not align with the intention of the parties. In a
contract, rectification means corrections or changes made to the contract.

Chapter III and Chapter V of the Specific Relief Act, 1963 deal with the rectification of
instruments and cancellation of instruments respectively. Relief of rectification can be
sought for contracts or any written instruments.

Section 26 of the Specific Relief Act, 1963

deals with rectification.

It reads as follows: “When instrument may be rectified.—

(1) When, through fraud or a mutual mistake of the parties, a contract or other
instrument in writing [not being the articles of association of a company to which the
Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then
—
(a) either party or his representative in interest may institute a suit to have the
instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in
issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause
(b), may, in addition to any other defence open to him, ask for rectification of the
instrument.

(2) If in any suit in which a contract or other instrument is sought to be rectified

under sub-section (1), the court finds that the instrument, through fraud or mistake,
does not express the real intention of the parties, the court may, in its discretion,
direct rectification of the instrument to express that intention, so far as this can be
done without prejudice to rights acquired by third persons in good faith and for
value.

(3) A contract in writing may first be rectified, and then if the party claiming
rectification has so prayed in his pleading and the court thinks fit, may be specifically
enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under
this section unless it has been specifically claimed: Provided that where a party has
not claimed any such relief in his pleading, the court shall, at any stage of the
proceeding, allow him to amend the pleading on such terms as may be just for
including such claim.”

There are certain circumstances when the rectification shall be made to a contract:

A) When there is a commitment of fraud or a mutual mistake by both parties

then either the party or his representatives can file for rectification of the
instrument. No other person has the right to file a suit for rectification. The
plaintiff can file a suit to rectify the instrument if any of his rights are in issue
and the defendant can file under sub-clause (b) of the section.

B) If rectification is made under clause (1) and the court eventually discovers that
there is the involvement of fraud or mutual mistake of parties, then the
discretionary powers lie with the court for rectification.
 C) If a claim for rectification is made, then it is at the discretion of the court to
grant and enforce it.

D) No relief shall be granted until the parties specifically claim for rectification of
the instrument.

Section 26 explicitly provides modes of rectification such as during fraud, mutual

mistake of parties, and real intention of parties.

1. Fraud
Any act to deceive a person amounts to fraud. Fraud is said to have been
committed when there is the presence of untrue facts, voluntary concealing of
fact, or failure to fulfill a promise which was committed with the same intent.
So when someone intentionally suggests or falsifies a fact with the motive to
misrepresent them, there lies a way to rectify the instruments.

2. Mutual mistake of parties

In a case that involves the mistake of both parties to the contract, the person
claiming for rectification is to prove the agreement that the agreement was
formed with the consent of the parties because the mistake when reduced to
writing failed to reveal the real intention of the parties.Mutual mistakes shall
be established by either party. Had the mistake not been from the side of
either party but from the written document, no rectification can be made. A
unilateral contract not amounting to fraud shall not be subject to rectification.

3. Intention of parties
The real intention of the parties is important to decide rectification. Court
decides the authentic intention of the parties in framing the contract. The
objective of Section 26 is to ensure that the defects do not prevail over the
intention of the parties.Pre-requisites for Section 26 include the existence of
fraud and mutual or common mistakes. The burden of proof rests with the
person claiming for rectification of the instrument.

Effect of rectification of the instrument

An instrument shall be rectified by the court only.The confirmation of the court vests
for the authenticity of the deed as to the real intention of the parties. This ensures
the affirmation of the true intention of the parties to the contract while executing it.
After the execution of the rectified instruments, it is to be read and construed as if
the original one had been drafted incorporating the changes in the rectified
 instrument. A deed of the transfer becomes a conveyance when rectified by the
court. The court’s order should declare that the deed is rectified and specify the
manner of rectification along with the direction of endorsement on the order of
conveyance. If rectification is allowed then the changes shall have a retrospective
effect.

Section 31 of the Specific Relief Act, 1963 deals with the cancellation of the
instrument which occurs when there is a potential cause of damage to the parties
rendering the document void or voidable. It is at the discretion of the court to cancel
it.

Case Laws
InNatarajan Asari Vs Pichamuthu Asari AIR 1972 Mad 192, it was held that a suit for
rectification can be claimed for a sale deed on grounds of mutual mistake concerning
the description or cost of the property.

In the case of Gerela Kalita Vs Dharmeshwar Saika (2961), the suit can be filed for
rectification on grounds of fraud or mutual mistake at whatever time they may be
discovered.

Bar of Limitation under Limitation Act

Introduction
 The law of limitation finds its roots in the maxim Interest Reipublicae Ut Sit
Finis Litium which means that in the interest of the state as a whole there should be a
limit to litigation and vigilantibus non dormientibus Jura subveniunt which means the law
will assist only those who are vigilant with their rights and not those who sleep upon it.
 The Limitation Act, 1963 (Act hereafter) prescribes different periods of limitation for
filing of suits, appeals or applications.
 The statute of limitation are statutes of repose because they extinguish stale demands
and quiet titles.
 They secure peace by ensuring the security of rights and justice as by lapse of time, evidence
may get destroyed.

Object of the Act

 The Law of limitation prescribes a time period within which a right can be enforced in a
Court of Law.
o The time period for various suits has been provided under the schedule of the Act.
 The main purpose of this Act is to prevent litigation from being dragged for a long time
and to quickly dispose of cases which leads to effective and easy litigation and disposal
of cases.

Period of Limitation
 Section 2(j) of the Act defines the period of limitation and prescribed period.
o Period of limitation refers to the time period which is prescribed for any suit, appeal or
application by the Schedule of the Limitation Act, 1963.
o The prescribed period is the period of limitation computed in accordance with the provisions
of this Act.
 Section 3 of the Act describes the Bar of limitation as subject to the provisions contained
in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made
after the prescribed period shall be dismissed although limitation has not been set up as
defense.

When Period of Limitation Starts

 The time from which the period of limitation begins depends on the case's subject matter,
and a specific starting point of such period is provided extensively by the Schedule in the
Act.
 It generally starts from the date when the summons or notice is served, or the date on
which the decree or judgment is passed, or the date on which the event that forms the
basis of the suit takes place.

Bar of Limitation Under Section 3

Section 3 of the Act provides that any suit, appeal, or application must be made within
the limitation period specified in the Limitation Act.
 If any suit, appeal or application is made beyond the prescribed period of limitation, it is
the duty of the Court not to proceed with such suits irrespective of the fact whether the
plea of limitation has been set up as a defence or not.
 The provisions of Section 3 are mandatory, and the Court can suo motu take note of
question of limitation.
 The question whether a suit is barred by limitation should be decided on the facts as they
stood on the date of presentation of the plaint. It is a vital section upon which the whole
Limitation Act depends for its efficacy.
 The effect of Section 3 is not to deprive the Court of its jurisdiction. Therefore, decision
of a Court allowing a suit which had been instituted after the period prescribed is not vitiated
for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

Limitation Bars Remedy but doesn't Extinguish Right

 The law of limitation only bars the remedy by way of the suit i.e., if the period of
limitation expires, the party entitled to file a suit for the enforcement of a right is
debarred from doing so.
o However, the original right on which the suit was to base is not barred. Thus, limitation only
bars the judicial remedy, but it does not extinguish the right.
 For example, where the recovery of a debt has become time barred by the lapse of the
prescribed period, the right to the debt is not extinguished.
o If the debtor, without being aware of the bar of time, pays the debt, he cannot sue the creditor
to refund the money to him on the grounds that his claims for the recovery of the debt had
become time barred.
 There is one exception to the aforesaid rule contained in Section 27 of the Limitation Act,
1963.
o It provides that where a person’s right to institute the suit for the possession of any property
has become barred by limitation his right to the property itself shall be extinguished.

Extinguishment of Right
 General Rule that the law of limitation only bars the remedy but does not bar the right
itself.
 Section 27 is an exception to this rule. It talks about adverse possession. Adverse
possession means someone who has possession over another’s land for a long time can
claim a legal title over it.
o In other words, the title of the property will vest with the person who resides in or is in
possession of the land or property for a long period.
 If the rightful owner sleeps over his rights, then the rights of the owner will be
extinguished, and the possessor of the property will confer a good title over it.
 Section 27 is not limited to physical possession but also includes de jure possession. As
per the wordings of this Section, it applies and is limited only to suits for possession of the
property.

Doctrine of Sufficient Cause

 Sufficient cause means there should be adequate reasons or reasonable ground for the
court to believe the applicant was prevented from proceeding with the application in a
Court of Law.
 Section 5 allows the extension of prescribed period in certain cases on sufficient cause
being shown for the delay.
o This is known as doctrine of “sufficient cause” for condonation of delay which is
embodied in this section.
o Condonation of delay means that extension of time given in certain cases provided there
is sufficient cause for such delay.
 Section 5 of the Act talks about the extension of the prescribed period in certain cases. It
provides that if the appellant or the applicant satisfies the court that he had sufficient
cause to not prefer the appeal or application within that period, such appeal or
application can be admitted after the prescribed time.
 In State of West Bengal v. Administrator (1972), the Supreme Court held that
the extension of time is a matter of concession and can not be claimed by the party as a
matter of right.
o It is difficult and undesirable to precisely define the meaning of sufficient cause. It must be
determined by the facts and circumstances of each case. However, a sufficient cause should
fulfill the following essentials:
 It must be a cause which was beyond the control of the party invoking it.
 He must not be guilty of negligence.
 His diligence and care must be shown.
 His intention must be bonafide.

Exception
 Section 5 is not applicable to applications made under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908 (states that the decree must be signed by the
judge, and then the decree must be entered in the register of decrees and further states
that the decree should be dated and authenticated by the judge's signature) and to suits.
 The Court has no power to admit a time barred suit even if there is a sufficient cause for
the delay. It applies only to appeals or applications as specified therein.

Plea of limitation: Duty of Court

 The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed
by the Limitation Act. The provisions of Section 3 are mandatory, and the Court will
not proceed with the suit if it is barred by time.

Case Laws
 Craft Centre v. Koncherry Coir Factories (1990):
o It was held by the Kerala High Court that the plaintiff's duty is to convince the Court that
his suit is within time.
o If it is out of time and the plaintiff relies on acknowledgments to save the limitations, he
must plead or prove them, if denied.
o The Court further held that, provision of Section 3 is absolute and mandatory and if a suit
is barred by the time, the court is under a duty to dismiss the suit even at the appellate
stage though the issue of limitation may not have been raised.
 ICICI Bank Ltd v. Trishla Apparels Pvt Ltd (2015):
o It was held by Madras High Court that there is no doubt that the court is duty-bound to
dismiss the suit in a case it is barred by time even though no such plea has been taken
by the opposite party.

Limitation Period When the Court is Closed

Section 4 of the Limitation Act deals with the provision and mentions:
 When a court is closed on a certain day and the period of limitation expires on that day,
then any suit, appeal or application shall be taken up to the Court on the day on which
it reopens.
o This means that a party is prevented not by his own fault but because of the Court being
closed on that day.
 For instance, if a Court reopens on 1st January and the time for filing the appeal expires on
30th December (the day on which the Court remains closed) then the appeal can be preferred
on the 1st of January when the Court reopens.
 Legal Disability

Introduction

 The ‘Law of Limitation’ provides an aggrieved party with the time limit for
different suits within which the party can approach the court for relief.

 The suit is dismissed by the competent court where the time limit provided by the
limitation act expires. A situation may exist where, due to his physical or mental
condition, the person is not able to file a suit or make an application.

 In such cases, the law may not be the same and additional rights and benefits may be
accorded to individuals with disabilities.

 The concept of legal disability is provided under Section 6 of the Limitation

Act,1963 which further extends to Sections 7, 8 and 9.

Section 6 of the Limitation Act,1963

Legal disability —(1) Where a person entitled to institute a suit or make an application
for the execution of a decree is, at the time from which the prescribed period is to
be reckoned, a minor or insane, or an idiot, he may institute the suit or make the
application within the same period after the disability has ceased, as would otherwise have
been allowed from the time specified there for in the third column of the Schedule.

(2) Where such person is, at the time from which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the application within the same
period after both disabilities have ceased, as would otherwise have been allowed from
the time so specified.

(3) Where the disability continues up to the death of that person, his legal
representative may institute the suit or make the application within the same period after
the death, as would otherwise have been allowed from the time so specified.

(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of
the person whom he represents, affected by any such disability, the rules contained sub-
sections (1) and (2) shall apply.

(5) Where a person under disability dies after the disability ceases but within the period
allowed to him under this section, his legal representative may institute the suit or make
the application within the same period after the death, as would otherwise have been
available to that person had he not died.

Explanation —For the purposes of this section, ‘minor’ includes a child in the womb.

The section deals with following types of disabilities:

 Minority

 Insanity

 Idiocy

Minority

 Minor is a person who has not attained the age of 18 years according to Indian
Majority Act, 1875.

 The calculation of the age has to be done according to Section 3(2) of the Majority
Act, 1875 - In computing the age of any person, the day on which he was born is to be
included as a whole day and he shall be deemed to have attained majority at the
beginning of the eighteenth anniversary of that day.

Insanity

 It means unsoundness of mind or lack of the ability to understand that prevents

someone from having the mental capacity required by law to enter into a particular
 relationship, status, or transaction or that releases someone from criminal or civil
responsibility.

 In the case of S.K.Yadav v. State of Maharashtra (2009), the concept of

insanity has been dealt with in detail by the Supreme Court and the court opined
that only legal insanity is recognized by law and not the medical insanity.

 Another case on the point of insanity is that of Hari Singh Gond v. State of Madhya
Pradesh (2008) in which the Supreme Court categorized insanity into further four
categories:

 When one is an idiot;

 When one is made non compos by illness

 When one is a lunatic or a mad man and

 When one is drunk.

Idiocy

A person who acts in an extremely foolish way is said to be an idiot. Idiocy is not an
acquired form of mental instability, rather a person is an idiot since his/her birth.

Computation of Limitation Period in case of Legal Disability

Persons with insanity, minority and idiocy as disabilities are exempted under Section
6 to file a suit or an application for the execution of the order in the time prescribed by the
law. They are allowed to file a suit or an application when their disability has ceased and
counting the period starts from the day their disability comes to an end.

Who is entitled to the benefit of Section 6

It is only a person “entitled to the suit” who can claim benefit of legal disability. Where the
person dies with such disability the ‘Legal Representative’ of such person may sue and all
the rules provided by Section 6 would apply to such legal representative as well.

Accrual of cause of action

 The provision provides that the plaintiff must be suffering from the disability at the
time when the cause of action accrues.

 In the case of Udhavji Anandji Ladha and Ors. v. Bapudas Ramdas Darbar
(1949) Bombay High Court held that Section 6 does not cover in any way
any “intervening” kind of legal disability. When a legal disability is in existence,
only then can Section 6 be successfully applied.

Section 7 of the Limitation Act,1963

Disability of one of several persons.—Where one of several persons jointly entitled
to institute a suit or make an application for the execution of a decree is under any such
disability, and a discharge can be given without the concurrence of such person, time will run
against them all; but, where no such discharge can be given, time will not run as against any
of them until one of them becomes capable of giving such discharge without the concurrence
of the others or until the disability has ceased.

Explanation I —This section applies to a discharge from every kind of liability, including a
liability in respect of any immovable property.

Explanation II —For the purposes of this section, the Manager of a Hindu undivided family
governed by the Mitakshara law shall be deemed to be capable of giving a discharge without
the concurrence of the other members of the family only if he is in management of the joint
family property.

 Section 7 had to be taken as an exception to the general principle set out in Section
6 and provides that if there were several persons who were jointly entitled to file suits
and if one of them were disabled, the time would not run against either of them until
the disability ceased to exist. But if one of the persons entitled to institute a suit was
competent to grant discharge without concurrence from others, then time would begin
to run against both of them.

Section 8 of the Limitation Act,1963:

Special exceptions — Nothing in Section 6 or in Section 7 applies to suits to enforce rights

of pre-emption, or shall be deemed to extend, for more than three years from
the cessation of the disability or the death of the person affected thereby, the period of
limitation for any suit or application.

 This provision provides that if the limitation period is extended under Section 6 or
7 then in no case it should be extended for more than 3 years.

 Also, the extension under Section 6 or 7 will not be applicable to suits for pre-
emption.

Section 9 of the Limitation Act,1963:

Continuous running of time —Where once time has begun to run, no subsequent
disability or inability to institute a suit or make an application stops it: Provided that,
where letters of administration to the estate of a creditor have been granted to his debtor, the
running of the period of limitation for a suit to recover the debt shall be suspended while the
administration continues.
 Acquisition of Ownership by Possession Under the Limitation Act

Introduction

Possession is one of the most important concepts in the entire range of Legal History as
it is the Prima facie incidence of ownership. According to Salmond, Possession is the most
fundamental interaction between man and things. However, Henry Maine defined it
as “interaction with an object that includes the exclusion of other people from enjoying
it.”

Acquisition of Ownership by Possession Under Limitation Act

 Acquisition of Ownership by Possession is provided under the Limitation Act,

1963 (hereinafter Act) by Sections 25, 26 and 27.

 The concept of adverse possession (Possession by someone who has had another’s
land for a long time and can claim a legal title over it) is important to be discussed
 here, adverse possession stems from the idea that land must not be left in
abeyance, instead, be put to judicious use.

 Essentially, adverse possession refers to the hostile possession of property, which

must be “continuous, uninterrupted, and peaceful.”

 The abovementioned provisions refer to:

o Section 25 - Acquisition of easements by prescription.

o Section 26 - Exclusion in favour of reversioner of serivent tenement.

o Section 27 - Extinguishment of right to property.

Section 25

Section 25 - Acquisition of easements by prescription. —

(1) Where the access and use of light or air to and for any building have been peaceably
enjoyed therewith as an easement, and as of right, without interruption, and for twenty years,
and where any way or watercourse or the use of any water or any other easement (whether
affirmative or negative) 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, way, watercourse, use of water, or other easement shall be
absolute and indefeasible.

(2) 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
contested

(3) Where the property over which a right is claimed under sub-section (1) belongs to the
Government that sub-section shall be read as if for the words “twenty years” the words
“thirty years” were substituted.

Explanation.—Nothing is an interruption within the meaning of this section, unless where

there is an actual discontinuance of the possession or 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 authorizing the same to be made.

 It provides for acquisition of easement by prescription.

 Easement by prescription is a type of adverse possession where one acquires an

easement (Easement - Right to use another person’s property in some way).

 Easement by prescription occurs where someone uses another's property for a certain
amount of time without permission in a way in which the owner should be aware
of.
  States set the time limit required for one to achieve a prescriptive easement which can
range from a few years to over twenty years.

 This section is remedial in nature, but it does not exclude or prevent the acquisition
of easement rights in other modes. For acquiring easement under this provision, 20
years of uninterrupted and continuous use is necessary.

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

easement:

o Peaceful Possession: The word peaceably means that the plaintiff who claims
to be the owner, has neither been obliged to resort to physical force himself at
any time to exercise his right within twenty years nor he has been prevented
by the use of physical force by the defendant in his enjoyment of such right.

o Openly: The word openly means that the enjoyment has been from the very
beginning which was visible or manifest and not furtive or secret.

o As of Right: The term as of right signifies enjoyment by a person in the

assertion of a right. In order to fall under this category enjoyment should be as
of right i.e., the person claiming it must have exercised it without leave or
license from anyone.

o Without Interruption: Enjoyment for twenty years must be without

interruption, that is, without any obstruction.

Case Laws

 In Rachhaya Pandey and Ors v. Sheodhari Pandey and Ors (1963), it has been
held that the right to drain off rainwater according to the position of the land in a
natural way does not attract Section 25.

 In Manindra Nath Bose v. Balaram Chandra Patni and Ors, (1973) Calcutta
High Court held that the customary right of way for all the villagers is not a right
which can be acquired by prescription under Section 25.

Section 26

 Section 26 - Exclusion in favour of reversioner of serivent tenement — Where any

land or water upon, over or from, which any easement has been enjoyed or derived
has been held under or by virtue of any interest for life or in terms of years exceeding
three years from the granting thereof, the time of the enjoyment of such easement
during the continuance of such interest or term shall be excluded in the computation
of the period twenty years in case the claim is, within three years next after the
determination of such interest or term, resisted by the person entitled on such
determination to the said land or water.
 Where any easement has been enjoyed or derived by virtue of life interest or in terms
exceeding 3 years, the time of enjoyment of such easement during the continuation of
such interest, such time period is to be excluded in computation of 20 years under
Section 25.