OVERVIEW

OF
INDIAN
EASEMENT
ACT
SUBMITED TO:- SUBMITED BY:-
MOHIT SIR PRITI PRIYADARSHI
20_ILB_095
Law of consumer protection,
motor vehicle and easement act
Introduction
The right of easement is a right as old as the day when human race first
emerging from barbarism, adopted the custom of living as other’s
neighbors, or respecting each other’s rights. It found it indispensable for
common good to adopt the general principle that an individual should
enjoy his property, though fully and exclusively, yet so as not to interfere
with neighbor’s legitimate enjoyment of his own property rights. This
salutary principle appears to be the original foundation on which
easements are based. In this I Introductory lesson we will discuss various
aspects of easement such as definition and meaning of Easement,
Easement and Public right contrasted, Easement distinguished from
customary rights and Difference between easement under the English and
Indian Laws. We will also discuss continuous and discontinuous,
apparent and non-apparent easements. In order to check your level
comprehension, the students are advised to answer questions as asked at
the end of each sub-section and also at the end of the lesson.
EASEMENT DEFINED

The term “easement” has been variously defined. An easement

has been said to be a privilege which the owner of one
tenement has over the tenement of another. It has also been
defined as a right which one person has to use the land of
another for a specific purpose or a servitude imposed as a
burden on the land. In some cases it has been stated that an
easement is a right
which one proprietor has to some profit, benefit, or lawful use
out of or over the estate of another proprietor.
Section 4 of the Indian Easements Act defines
easement as:
An easement is aright 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.
Dominant and servient heritage and owners.-
The land for the beneficial enjoyment of which the
right exists is called the dominant heritage, and the
owner or occupier thereof the dominant owner; the
land on which the liability is imposed is called the
servient heritage, and the owner or occupier thereof
the servient owner.
Explanation.- In the first and second clauses of this
section the, expression “land” includes also things
permanently attached to the earth; the expression
“beneficial enjoyment” includes also possible
convenience, remote advantage, and even a mere
amenity; and the expression “to do something”
includes removal and appropriation by the dominant
owner, for the beneficial enjoyment of the dominant
heritage, of any part of the soil of the serviant
heritage, or anything growing or subsisting thereon.
Essentials of Easements
1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary

existence of two properties i.e dominant and servient
heritage is a must. This is because as per the definition, it
is the right exercised by the owner or occupier of one land
for enjoying the benefit of his/her land, over the land of
some other person. Dominant and servient heritage cannot
be one. Thus, the existence of two properties and that to be
separate from each other is essential
2. Separate owners
For exercising the right of easements, owners of the two properties shall be different and not a
single person.

3. Beneficial Enjoyment
The object of easements is that the dominant owner enjoys it in a way which includes express
and implied benefits.

4. Positive or Negative
Easements can be both positive or negative. Former refers to a right through which the dominant
owner does some act to exercise the right over the land of the servient owner. Whereas, the latter
denotes an act of prevention. In a negative easement the dominant owner prevents or restricts the
servient owner from doing certain act or acts.

In a right of easement an owner of dominant heritage can do an act or prevent the servient owner
from doing something but he cannot bind the servient owner to do something for him.
The easementary right exists only when two heritages are adjacent to each other. It is a right in
rem, which means a right available against the whole world. Easement as a right is always annexed
to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement
and no on one’s own land.
Classification of Easements:-

Section 5 of the The Indian Easements Act, 1882 classifies the

easements as follows–

Continuous or Discontinuous
Continuous easements are the one whose enjoyment may be continued
without the intervention of any human conduct or act of a man. There is
no interference by a man and it adds special quality to the property.
While, on the other hand, right of easement for the enjoyment which an
interference of a man is required is known as discontinuous. In this kind
of easement, it is necessary that a human act is done on the servient
heritage.
Apparent or Non- Apparent
An apparent easement is one the existence of which can be seen
through a permanent sign. It can be visible by a careful examination and
on reasonable foresightedness. It is also known as express easement. An
inspection is required to check the existence of a right. For example-
There is a drain from A’s land to B’s land and from there it led to an
open yard. This can be visible through a clear inspection and is an
apparent easement.

Whereas, a non-apparent easement is just opposite of what apparent

easement is. This kind of easement is not visible through an inspection.
There is no permanent sign as such. The right is in use but is not visible
and thus, is known as an invisible easement. For example, A’s right
annexed to A’s land to prevent B from building on his own house.

Another example to explain non-apparent easement is that the right to

stop construction over a certain height.
Limitations or Conditions of Easements
An easementary right may be permanent or for a period of years or for a limited term. It
can also be subjected to periodical interruption or may be exercisable at a particular
place, between certain hours and for a certain or particular purpose. This right can also be
granted on a condition that such a right shall become void or voidable on happening of
some event or non performing of some act. These limitations or conditions which regard
to the right of easement has been specified under Section 6 of the Act.

Restrictive Easements
Section 7 specifies that the easements are restrictive of certain rights which are as
follows-

Exclusive right to enjoy

Right to advantages arising out of the situation

Profit of prendre:-
A profit of prendre is a nonpossessory right that entitles one to go on the
land of another and remove the soil or product of soil from it. For
example , you may own property next to the stream. Your property may
have a profit of prendre to fish the stream. If you sell the property , then
you lose the right and new owner gets it because the right is transferred
with the land.
According to the Indian easement act,1882,profit of a prender is a part
of the definitions of easement . The act provides to do something on
the servient heritage . The act provides to do something on the sevient
heritage which includes the right of removing and appropriating for
his own use , any part of the soil ot the sevient heritage. This
priviledge of taking away something from the land of another is
known as profit-a-prendre. Example-a right to take earth from the
land of the other person for making an earthenware is a profit a
prendre . This is basically a profit made out of the land of the other
Other example of profit prendre are :

The right of fishing from another pond ;

The right to take fruits of the trees in the season from anothers yard;

The right to take stones from another presons land to mend his own road

The right to planting rice on another land for the purpose of

transplantation .

The right to a person to take water or timber from anothres land.

The right of a person to take leaves failling his neighbours land for use as manure of his
own land

The owner of a dominent heritage exercise this right on the property of

the servient owner . Profit a prendre is a right to do something on the
land of servient tenement for the more beneficial enjoyment of the
dominent heritage.
Modes of Acquisition of Easements
Express Grant

The easement can be acquired through express grant made by inserting the clause of granting
such a right in the deed of sale, mortgage or through any other form of transfer. This involves
expressing by the grantor of his clear intention. If the value of the immovable property is Rs.100
or above then it compulsory for it to be in writing and duly registered.

Implied Circumstances

Easementary right can be acquired in implied circumstances in the following ways-

Easement of Necessity

Section 13 of the act deals with this. This consists of the circumstances where the owner or
occupier cannot use his property without exercising the right of easement over the servient
heritage. Thus, absolute necessity is the test and the convenience.

For example– X sells his land to Y for agricultural purpose. Here, Y cannot access his land
without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.
Quasi Easements
In the case of a person transferring his property to another person then-

If an easement is continuous, apparent and necessary to enjoy, then in such a case the transferee
shall be entitled to it,

If such an easement is continuous, apparent and necessary to enjoy the said property, the
transferor has a right to such easement over property transferred by him

In case of partition of the property of the joint family, if an easement is continuous, apparent and
necessary to enjoy the share of one coparcener over the other coparcener, then he is entitled to
such a right of easement.

Easements are quasi as those are arising out of circumstances,i.e. When common properties are
converted into tenements by way of sale, mortgage, partition or through any other form of
transfer. In such a case, there is an implied grant of right of easement.

For example– P’s right attached to Q’s house to receive air and light through a window without
any obstruction by his neighbour. This is a continuous.
Prescriptive Easements
Section 15 provides for this type. Following are the requisites-

Right must be definite and certain,

Right must have been independently enjoyed without any agreement with the servient owner,

Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous
period of 20 years and in respect of any government land the period of non-interruption shall be
30 years.

Customary Easements
An easement right can be acquired by virtue of a local custom. This is known as customary
easements. Section 18 of the Act provides for it. For example- people living in a particular city or
town having a right to bury the dead in a particular area or riparian right to use water.

Extinction of Easements

Section 37 to 47 of the The Indian Easements Act, 1882, provides for the mode of extinction of
easements.
Dissolution of Servient Owner’s right
In the situation where the grantor ceases to have any right in the servient tenement because
of some reason, then the right of easements ceases to exist as well. This has been specified
under Section 37 of the Act. For eg- X grants a piece of land to Y for a period of 20 years in
the year 1970. In the year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest
came to an end. Thus, easementary right granted to Z ceases to end as well.

Expiry of time or happening of an event

When an easement is acquired on certain conditions or for certain purpose or for certain
period of time. On the fulfilment of such condition or purpose or expiry of the time, the
right of easement extinguishes as well as in accordance with Section 6 of the Act.
Extinction by destruction of either of heritages

When either of heritages gets destroyed, the easement ends as it is essential for two properties to
exist for exercising the right.

Unity by ownership
By unity of ownership it is indicated that when one person becomes the owner of both the
dominant and servient heritage then the right of easement terminates. For instance, A has right of
easement over B’s property. Later on, A purchases B’s property and becomes the owner of B’s
property. In such a case, easement extinguishes.

Another example which can be stated her to explain the concept is that A has a right of easement
over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus,
easement terminates.
Suspension of Easements
Section 49 of the Act provides that easement can be suspended under the following
circumstances-

An easement is or can be suspended when the dominant owner becomes entitled to the
possession of servient heritage for a limited interest. An example which can be stated here to
explain the concept is that A has a right of easement over B’s land. In future A takes B’s land on
rent, here A becomes the occupier of B’s land. Thus, easement suspends.

When the servient owner becomes entitled to the possession of dominant heritage for a limited
interest, the easement is suspended.

Thus, where both the dominant and servient owner becomes one, easement is suspended.

Revival of Easements

Section 51 of the Act provides for the situations wherein easement suspended or extinguished can
be revived, which are as follows-

When an easement is extinguished by destruction of either of the heritages then it can be revived-

If the heritage is restored in 20 years.

Revival of Easements
Section 51 of the Act provides for the situations wherein easement suspended or extinguished can
be revived, which are as follows-

When an easement is extinguished by destruction of either of the heritages then it can be revived-

If the heritage is restored in 20 years.

If the heritage is rebuilt in 20 years

2. In case of unity of ownership, if the unity breaks due to some reason, then easementary right
can be revived and also through an order of a competent court.

Licenses
Section 52 of the Act deals with the concept of licenses. Where one person grants to another
person a right to do or continue to do something in or upon the immovable property of the
grantor, something which if he does will be unlawful without the prior permission or the
availability of the grant. Such a right shall not amount to an easmentary right or creation of
interest in the property.
Essentials of licenses
It is a permission granted, i.e a right arising out of permission.

Legalises an act.

Is revocable on the act of the grantor.

It is always in respect of immovable property.

It is a right in personam.

Revocation of licenses

License can be revoked in following ways-

If from the cause of preceding the grant, the grantor himself ceases to have any interest in the
property, the license gets revoked. Grantor’s interest comes to an end.

By express and implied release of the license by licensee.

There are certain cases wherein a license is issued under certain conditions or limitations. This
includes a license issued on a condition that if a certain act is doe or is not performed then the
license may become void.
Transferable Licenses
According to Section 56 of the Act, a license can be transferable under the following conditions-

A license to attend a place of public entertainment may be transferred by the licensee. This may
be gathered from the grant or contract, or from surrounding circumstances or local usage. For
instance, P grants Q, a right to walk over P’s field whenever he pleases. The right is not annexed
to any immovable property of Q. The right cannot be transferred.

Transfer by licensee- The general rule is that the licensee cannot transfer his license. If he
transfers then the transferee becomes a trespasser and can be or may be ejected.

Irrevocable Licenses
Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer
of property and the transfer is in force, it cannot be revoked. This is subject to the agreement.
Hence, the power can be reserved. The rule is that a bare license may be revoked but if coupled
with a transfer of the property, then it is irrevocable.

A license coupled with an interest in a land is binding. A license coupled with profit a prendre is
irrevocable, for example, Right to excavate earth and carry it to make earthen wares, right to cut
and carry timber on payment of royalty.
Easement and Public right contrasted
An easement is a
private proprietary privilege appurtenant to a dominant tenement. Apart
from statute, it must be founded against common right on a grant express
or implied in a transaction or presumed from long user by prescription.
By contrast a public right is enjoyed by the public at large, irrespective
of any interest they may have in the tenement. An indeterminate and
fluctuating body of persons, such as the public, or the community, or a
section of the public, or section of the community, cannot have any right
of easement. For instance, public rights of way which every citizen is
entitled to use at his pleasure are not dependant on the ownership of any
estate; and even a public road or highway is taken to be a dedication to
the public of the occupation of the surface of the land for the purpose of
passing and repassing. So far as the ordinary easement is concerned, the
occupation remains with the owner of the servient heritage, subject to the
easement.
Easement distinguished from customary rights
Easements are
distinguished from that class of rights which exist in particular localities
under special local customs whereby a wholly undefined and fluctuating
body of persons is entitled to utilize the land of another person in a
particular manner and for a particular purpose. Such rights founded on
custom appertain to many persons as a class, and not as grantees, nor do
such rights require the existence of a dominant tenement. They are
analogous to easements, but are not really easements, since some
necessary elements of easements are wanting. A customary right is a
right in gross while an easement is always appurtenant to a tenement.
Customary rights are claimed for a large or fluctuating body of persons
in respect of a locality and it is unnecessary to look out for their origin
from grant or otherwise. Private easements, on the other hand, are
claimed by defined persons and arise from a grant, which is either
express or implied or by prescription.
Difference between easement under the English and Indian Laws
1. In India easementary rights can be claimed
only in respect of corporeal property such as land and not in respect of incorporeal
rights. But under the English Law an easement can be claimed in respect of an
incorporeal right also. 2.
An easement right under the English Law is a privilege without profit. It permits
enjoyment of certain rights in respect of the dominant tenement without allowing the
owner of the dominant tenement to share in the profits which arise out of the soil of the
servient heritage. Thus easement excludes what is called profits a prendere. Under
Indian Law an easement also includes profits a prendere. It includes a right to enjoy the
profits arising out of the soil of another owner. This is made clear by the Explanation to
section 4 which lays down that the expression “to do something” includes removal and
appropriation by the dominant owner, for the beneficial enjoyment of the dominant
heritage of any part of the soil of the servient heritage, or anything growing or
subsisting thereon.
3. Under the Indian Law two tenements need not be adjacent to
each other because used in the section are that the servient heritage must be “certain
other land” not belonging to the dominant owner. But under the English Law the
heritages must be adjacent ones.
. Extent of easements

With respect to the extent of easements and the mode of their enjoyment, the
following provisions shall take effect: Easement of necessity- An easement of necessity is co-
extensive with the necessity, as it existed when the easement was imposed. Other easements- The
extent of any other easement and the mode of its enjoyment must be fixed with reference to the
probable intention of the parties, and the purpose for which the right was imposed or acquired. In
the absence of evidence as to such intention and purpose-
(a) Right of way- A right of way of any one kind
does not include a right of way of any other kind;
(b) Right of light or air acquired by
grant.– The extent of a right to the passage of light or air to a certain window, door on other
opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air
that entered the opening at the time the testator died or the non-testamentary instrument was
made; (c) Prescriptive right
(d)
to Prescriptive
light or air- right to pollute air or water- The extent of a prescriptive right to
The extent of a prescriptive right to the passage of light or air to a certain
pollute air or water is the extent of the pollution at the commencement of the period of user on
window, door or other opening is that quantity of light or air which has been accustomed to enter
completion of which the right arose; and (e) Other prescriptive rights- The extent of every other
that opening during the whole of the prescriptive period irrespective of the purposes for which it
prescriptive right and the mode of its enjoyment must be determined by the accustomed user of
has been used;
the right.
Easements of necessity.- In the case of an easement of necessity the rule
broadly stated is that the user of the right must be limited by the actual necessity of the
case. In relation to the use to which the dominant tenement may be put, the question
arises as to the point of time to which the actual necessity is to be referred. The state of
circumstances existing at the time of the grant must determine the necessity of the case.
Otherwise the necessity which is the foundation of the right, might be converted into a
mere question of convenience, changing its character according as the dominant owner
choose to alter the mode of his enjoyment of the dominant tenement. It is well settled
law both in India and England that an easement of necessity cannot be converted into
an easement of convenience, which might change its character frequently according to
the whims and needs of the dominant owner.
Right of Way.- When an easement of way is created
by deed of grant or by will the extent and mode of its enjoyment must, in conformity
with the general rule, be ascertained from the terms of the instrument itself, which are
to be construed, if necessary, with reference to the circumstances existing at the date of
the instrument. However, where there is a right of way proved by user, the extent of the
right must be measured by the extent of the user.
Right to light and air.- In suit for damages for obstruction of
easement of light and air the dominant owner (plaintiff) must prove that there has been
diminution in the quantity of light and air which used to enter his house during the
whole of the prescriptive period and that such diminution has made the occupation of
the house uncomfortable or unsuitable for carrying on his business as beneficially as he
was doing before. Mere diminution in the quantity of light and air does not give rise to
the cause of action. Section 28 which confers the right of easement has to be read with
Section33 of the Act which indicates the extent and the limitation under which the right
of easement is enjoyed. Indeed if Section 28 is completely divorced from the scope of
Sections 33 and 35 then the two sections would run contradictory to each other and this
will be against the rule of harmonious interpretation of statutes. Section 28 merely
indicates in what measure aright of easement of light or air can be acquired but how
that right is to be actually enforced when disturbed is laid down in Sections 33 and 35
of the Act.
Extent of right to light or air acquired by grant: If the plaintiff has been receiving light
and air through his two ventilators for over the statutory period and has thus acquired
easementary right, he is entitled to get light and air through the said ventilators though
he might be getting enough light and air by other means (Santhannagiri Rammaya
v.Narsinhapuram Narayana Chetty, AIR 1968 AP 151).
If there is something in the instrument itself, as to the extent and
mode of enjoyment, the terms of the deed, and not this rule, will be
proper guide fixing such extent and mode of enjoyment, as the rule
applies only when there is no evidence as to the intention of the
parties and the purpose for which the right was created (Ganga
Charan Dhar v. Satkrit Lal Dey, 133 I.C. 214: AIR 1932 Cal. 118: 53
C.L.J. 604).
Extent of prescriptive right to light and air.- The owner of the
dominant tenement has a right to claim that he must receive his
prescriptive share of light or air through the defined passage
(Shanker v Dattaraya, 131 I.C. 429: AIR 1931 Nag. 80). The use of
the words “window, door or other opening” shows that the Indian
law, unlike the English law expressly regards a door as an opening
for the passage of light. Therefore, according to the Indian law, the
prescriptive right to light and air can be acquired even through a
door (Veerappa Mallappa v. Nagappa Jakirappa, AIR 1965 Mys. 292).
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 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. Easements 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. Whereas, on the other hand licenses can only be positive in nature.

Further, the Act talks about the provisions regulating the suspension, extinction and revival of the
easements. Also, how easements is different from licenses has been discussed. The article also
explains the concept of licenses along with its essentials. License can be revocable as mentioned
in the Act and irrevocable as mentioned under Section 60 of the Act. They can also be transferred
according to Section 56 of the Act. It is a right in personam which is not available against the
whole world but is granted personally.