CENTRAL UNIVERSITY of SOUTH BIHAR

LAW and GOVERNANCE

PROPERTY LAW
TOPIC-
“Imposition, Acquisition and Transfer of Easement”

Under the supervision of:

Dr. Pallavi Singh
Assistant Professor,
School of Law and Governance

Submitted By:
VISHAL CHOUDHARY
BA.LL.B. (Hons.)
Section- ‘B’
6th Semester (2021-20126)
Enrollment Number – CUSB2113125128

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 ACKNOWLEDGMENT

I would like to thank my faculty Dr. Pallavi Singh whose assignment on such a relevant topic
“Imposition, Acquisition and Transfer of Easement” made me work towards knowing the
subject with greater interest and enthusiasm and moreover respected professor guided me
throughout the project.

I owe the present accomplishment of my project to my faculty and colleagues, who helped me
throughout the project in regard to the sources of the material needed for this assignment. I am
much obliged to them.

THANK YOU

VISHAL CHOUDHARY

CUSB2113125128

6th semester

B.A.LL.B.(Hons.)

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 Content

Contents

Introduction ......................................................................................... Error! Bookmark not defined.

Imposition of Easement ................................................................... 5-Error! Bookmark not defined.

Acquisi on of Easement……………………………………………………………………………………………………….……….6-8

Transfer of Easement…………………………………………………………………………………………………………………….8-9

Conclusion……………………………………………………………………………………………………………………………………9

Bibliography…………………………………………………………………………………………………………………………………….10

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 INTRODUCTION

An easement is such a right in which the owner of land for the beneficial enjoyment of land on
any land or in relation to any land which is not his, asks to do something and continues to so
do.1

Salmond- “Easement is that legal servient which can be exercised on some other piece of land
for the benefit of a piece of land.”

Peacock – “Easement is such a privilege without profit which an owner of dominant heritage
receives from the owner of the land due to which owner of that property cannot exercise his
complete rights or does nothing for the advantage of earlier occupier.”

Section 4 of The Indian Easements Act, 1882 defines “Easement” as:

“An easement is a right which the owner or occupier of certain land to do and continue to do
something or to prevent and continue to prevent something being done in or upon in respect of
certain another land not of his own.”2 Land includes those things that are permanently attached
to the earth. Beneficial enjoyment includes any convenience or advantage or any amenity. The
owner or occupier is the dominant owner and his land is the dominant heritage. The land on
which the liability is imposed is called a servient heritage or tenement and the owner of that, is
the servient owner. For instance, a has the property at the roadside and B is his neighbour who
has the property beside the property of A. B has to go between the A’s property if he wants to
go for his work. So, here it is the right (easement) of B to go by A’s property. Whenever
immovable property is involved, there are certain rights linked to the enjoyment of such
property, without these rights, such properties might not be simply and absolutely held and
enjoyed. Such rights are referred to as Easements. Easementary rights are crucial in maintaining
balance and harmony between neighbouring properties. They ensure that certain individuals or
entities have a legally recognized right to use or enjoy the benefits of another person’s property,
even though they may not be the actual owners. However, it’s important to note that these rights
are subject to various restrictions and conditions as defined by the law.3

1
Vibha V, “An Analysis On The Doctrine of Easement”, 6 IJLDAI 22 (2020)
2
The Indian Easement Act, 1882, Available at: https://www.indiacode.nic.in, visited on (March 05, 2024)
3
Overview of law of Easement, available at: https://lawpage.in/property_law/easement/overview, (visited on
March 05, 2024)

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 IMPOSITION of EASEMENT

According to section 8 of The Indian Easements Act, 1882, An easement may be imposed by
anyone in the circumstances, and to the extent, in and to which he may transfer his interest in
the heritage on which the liability is to be imposed.

Servient Owner

Section 9 of The Indian Easements Act, 1882 lays down that, subject to the provisions of
Section 8, a servient owner may impose on the servient heritage any easement that does not
lessen the utility of the exiting easement. But he cannot, without the consent of the dominant
owner, impose an easement on the servient heritage which would lessen such utility.

Lessor and Mortgagor

Section 10 of the Act provides that, subject to the provisions of section 8, a lessor may impose
on the property leased, any easement that does not derogate from the rights of the lessee, and a
mortgagor may impose, on the property mortgaged, an easement that does not render the
security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or
mortgage, impose any other easement on such property, unless it be taken effect on the
termination of the lease of the redemption of the mortgage.4

Lessee

Section 11 provides that no lessee or other person having a derivate interest may impose on the
property held by him as such an easement to take effect after the expiration of his interest, or
in derogation of the right of the lessor or the superior proprietor. 5

Illustrtions:

 A is a tenant of B’s land under a lease for an unexpired term of twenty tears, and has
power to transfer his interest under the lease. A may impose an easement on the land to
continue during the time that the lease exists or for any shorter period.

4
An Overview: Law of Easements in India, available at: https://blog.ipleaders.in/ by Pooja Kapur, published on
June 11, 2019.
5
Imposition, Acquisition and Transfer of Easement, available at: https://www.studocu.com/in, (visited on
March 10,2024)

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  A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless
with B’s consent, impose an easement thereon which will continue after the
determination of his life interest.

ACQUISITION of EASEMENT

Section 12 of The Indian Easements Act, 1882, An easement may be acquired by the owner of
the immovable property for the beneficial enjoyment of which the right is created or on his
behalf, by any person in possession of the same.

One of two or more co-owners of immovable property may, as such, with or without the consent
of the other or others, acquire an easement for the beneficial enjoyment of such property.

No lessee of immovable property acquires, for the beneficial enjoyment of other immovable
property of his own, an easement in or over the property comprised in his lease.

Ingredients:

(1) The owner of the immovable property may acquire an easement.

(2) Such easement must be for the beneficial enjoyment of which the right is created.
(3) The owner or other person on his behalf in possession of the land may acquire an
easement.
(4) In the case of a joint property, one of the two or more co-owners may acquire an
easement, for the beneficial enjoyment of such property, with or without the consent of
the other or others (co-owners).
(5) A tenant cannot by prescription acquire an easement over land belonging to the landlord
because for the existence of an easement two tenants owned by two different persons
are necessary. However, one tenant can claim right of easement against another tenant,
for which the basis may be an express or implied grant.6

Modes of acquisition of easement:

6
Imposition, Acquisition and Transfer of Easement, available at: https://www.studocu.com/in, (visited on
March 11,2024)

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There are several methods by which easements may be acquired. They are:

Express Grant: This is the most straightforward method. The owner of the servient tenement
creates a written document (deed, contract) that explicitly grants easement rights to the
dominant tenement. The document should clearly define the nature of the easement, its
duration, and any limitations on its use.

Implied Grant: Even when no document or agreement has created an express easement, an
easement right may still be understood (or "implied") by a situation or circumstances. This
arises when the separation creates a situation where one piece of land (dominant tenement)
relies on another (servient tenement) for essential access or use.

Here, the law infers an easement exists to ensure reasonable use of both properties.

Prescription: In some jurisdictions, an easement can be acquired through prolonged use. If

someone openly, continuously, and without permission uses another's property for a defined
period (often several years), they may gain an easement by prescription. Section 15 of the act
talk about this and their period for use or enjoyment without any sort of interruption is given
as 20 years.

Necessity: This arises when a property is inaccessible or unusable without an easement over
adjoining land. It is absolute and essential for any reasonable use of the dominant tenement. In
Prahallad Singh vs. Reoti Devi7, the Supreme Court of India recognized the concept of
easement of necessity and held that landlocked property owners have the right to such an
easement, even if it is not explicitly provided for in the property documents or previous
agreements.

This case clarified and affirmed the rights of landlocked property owners and set an important
precedent for the recognition and protection of easementary rights in India.

Custom: These types of easements can be acquired by virtue of local custom or longstanding
traditions. This could involve rights of way, access to water sources, or use of common areas.

Other modes of acquisition:

Transfer of dominant heritage: Dominant heritage transferred by the act of the parties or by the
operation of law carries the incidental easement rights with it under sec.19. A has certain land

7
Prahallad Singh vs. Reo Devi (2002)

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to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests
in B and his legal representative so long as the lease continues.

Imputed grant: Easements are established by proof of immemorial enjoyment and created by
the operation of doctrine of acquiescence when the servient owner actively encourages the
dominant owner to exercise a right.8

Statute: By legislation easements may be created. Indeed even the rights which do not have
the characteristics of the easement may be statutorily declared to be easement.

TRANSFER of EASEMENT

Transfer Easements may be acquired by transfer Section 19 of the Indian Easements Act, 1882
provides as to transfer of dominant heritage passes easement It lays down that where the
dominant heritage is transferred or devolves, by act of parties or by operation of law, the
transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement
to the person in whose favour the transfer or devolution takes place.9

Illustrations:

 A has certain land to which a right of way is annexed A lets the land to B for twenty
years The right of way vests in B and his legal representative so long as the lease
continues.

The object of the rule is that an easement exists for the beneficial enjoyment of a certain house
or land, it cannot be separated from it Section 19 covers all cases of transfer or devolution of
property

As the benefit of an easement passes with the dominant tenement into the hands of every
subsequent owner of that tenement, similarly the burden of it passes with the servient tenement

8
Modes of Acquisi on of Easement, Available at: h ps://www.lawyersclubindia.com, published on December
30, 2016
9
Easement: Definition, Types, and Examples, available at: https://www.investopedia.com/ by James Chen,
updated May 20, 2022

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to every person into whose occupation the servient tenement comes and in the latter case even
though a contrary intention appears.10

CONCLUSION

The Indian Easements Act, provides for the whole concept of right of easements and its
regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the
owner of the dominant heritage over the heritage of servient owner for the beneficial enjoyment
of his own land. It not only defines what actually easements consist of but also provides with
its classification. Easements can be prescriptive, customary, quasi and of necessity.

Thereafter, modes of acquiring easements has been provided under Section 7 of the said Act
according to which it can acquired through an express grant or is in certain circumstances
considered to be an implied right. If an easement is to be acquired through the express grant
then such a clause has to be specifically mentioned in the deed of sale, mortgage or any other
deed in accordance with the mode of transfer. An easement is a right in rem, that is, it is
available against the whole world. It can be subject to limitations as well and can be restrictive
too. Easements can be both positive and negative.

The study of easement is important even in layman’s context, so as to have his common rights
established with respect to a person’s property. Apart from the legislation, it is in the hands of
the judiciary to prevent such abuses. The reliance on English law also adds to our strength.

10
Imposition, Acquisition and Transfer of Easement. by Bilal Khan, Available at: https://www.scribd.com,
published on 21 December, 2021

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 Bibliography

 https://www.studocu.com/in

 https://www.scribd.com

 https://www.lawyersclubindia.com

 https://www.investopedia.com

 https://blog.ipleaders.in/

 https://lawpage.in

 https://www.indiacode.nic.in

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