odes of Acquisition of Easement
Indian Easements Act, 1882
injustice to him. So the law, in order to safeguard the interests of persons claiming title by long and immemorial user, invested them with a title on the natural presumption that such user had a legal origin, which the person questioning could not legally dispute at an earlier datewhen the evidence of such right might be forthcoming for no man could be presumed to allow his own property to be used by any other man forsuch a long time without title.
Acquisition of Easement
ights by p
Ascrutiny of Section 15 reveals that the following conditions should exist before an easement can become absolute by prescription : (1)
heremust be a pre-existing easement which must have been enjoyed by the dominant owner, (2) the enjoyment must have been peaceable, (3) theenjoyment must have been as of right, (4) the enjoyment must have been as an easement, (5) the right must be enjoyed openly, (6) theenjoyment must have been for a period of twenty years, (7) the enjoyment for 20 years must have been without interruption.All the above 7 ingredients of an easement right must be proved to have been present during the whole of the prescriptive period of20 years.
he statutory period of 20 years must be proved to have been completed within two years next before the institution of the suitwherein the claim to such easement right is contested.In
Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.
he Supreme Court has laid down that to establish the clause under Section 15, continuous user of 20 years as of right to do the actcomplained of in assertion of a title, peaceably and openly must be made out.
he enjoyment must not be permissive. What is permissive is thatwhich depends not on right, but on the will of another person.In substance it means that the enjoyment should be without violence, without stealth and without permission.
Enjoyment of right
he first condition toacquire an easement by prescription is that the claimant of the right must have actually enjoyed the right over the servient tenement. Actualuser does not mean continuous enjoyment for the whole period of twenty years.
here may be breaks in enjoyment but the break must be suchas may be found consistent with a presumption of continued enjoyment of the right.For example, a person may be said to be in enjoyment of a right of way during a period of time, though he does not actually use the way everymoment. Mere non-user for a time of an easement, which the owner might if he pleased to enjoy during every hour of that time, but which forsome good reason he does not care to enjoy is not necessarily discontinuance of the enjoyment of the right.
In order that an easement may be termed as peaceful, it is necessary that the claimant·s enjoyment of his right during the prescriptiveperiod must be free from all kinds of violence or physical force on his own part or on the part of the servient owner.
1969 SCD 1105.