Introduction

On July 1st, 1882, the Indian Easement Act, 1882, went into effect. The Act’s goal is to clarify and modify the laws pertaining to licenses and easements. The right to enjoy one’s own land by exercising certain rights over other, non-belonging land is known as an easement, and it is enjoyed by the landowner or occupier. An easement may be gained by prescription, emerge by implication, or be formally granted. One essential outcome of the ownership of immovable property is the right of easement.

In India, before the British rule, there was no uniform, well defined body of law relating to easement, the British therefore, sought to apply the English Common Law of Easement to cases arising in India. Finally, this Act was passed. Originally, this Act is not given retrospective effect. It is not an exhaustive law.

Definition of Easement

An easement is a right that the owner or occupier of a piece of property owns for the purpose of enjoying it to its fullest potential. This right allows them to do or not do anything on their own land as well as to prevent others from doing the same on theirs.

For the sake of enjoying his own property, it encompasses the right to do, to continue doing, and to prevent, to continue preventing, certain acts related to or concerning other land that is not his own.

Everything that is affixed to the earth permanently is referred to as “land,” and anything that is advantageous, convenient, or a need is referred to as “beneficial enjoyment.” The land for which the easementary right exists is known as Dominant Heritage, and the owner or occupier mentioned in the provision is referred to as the Dominant Owner. On the other hand, the land where a liability is placed in order to accomplish or avoid anything is referred to as the Servient Heritage, and the owner whose land it is placed upon is known as the Servient Owner.

The right of the owner of immovable property to enjoy, act upon, or continue to act upon the immovable property is a specific right; as such, the enjoyment is for the advantageous use of the owner’s own property.

Illustration

1. X, as the owner of a certain house, has the right to collect water from Y’s stream to supply the fountains in the garden attached to his house. This is an easement.
2. P voluntary dedication of right by ‘Z’ to the public for passing or re-passing over a surface of certain land is not a right of easement.
3. Q, as the owner of certain house, has a right of way thither over his neighbor R’s land for the purpose connected with the beneficial enjoyment of the house. This is an easement.

The eminent jurist Salmond defined easement as a legal servient that can be used on another parcel of land expressly for the purpose of enjoying one’s own land to the benefit of others. The ability to undertake an act on another person’s land or to prohibit certain acts on other people’s land in order to enjoy one’s own land is essentially what an easement is.

Essentials of Easement

The Following are the essentials of easement as defined in the Indian Easement Act-

1. There must be an owner or occupier of certain land i.e dominant heritage.
2. Right vested towards owner or occupier of the land.
3. The right must be to do and continue to do something, or to prevent and continue to prevent something done in, or upon, or in respect of, some other land i.e servient heritage
4. Servient owner
5. The purpose of easements is to provide the dominant owner with benefits, both explicit and implicit.

Rights of owner or the occupier in The Indian easement Act,1882

An easement is a right that an owner or occupier of land owns for the good enjoyment of that land, which includes the ability to do and continue doing something on that land or to do and continue not to do something on or upon other non-owner land.

Section 7: Easement to do acts which enhance the utility of the dominant heritage – This section provides for the creation of easements that allow the owner of the dominant heritage to do acts that enhance its utility, such as the right to construct or maintain a passage or drain.

Section 8: 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.

Person who may impose easements:- 

1. Servient owner- Any easement that does not reduce the usefulness of the current easement may be imposed on the servient legacy by the servient owner, subject to the rules of Section 8. However, he cannot reduce such utility by imposing an easement on the servient legacy without the approval of the dominant owner.
2. Lessor and mortgagor- A lessor may impose any easement on the leased property that does not infringe upon the lessee’s rights in the same way, subject to the limitations of Section 8, and a mortgagor may impose any easement on the property mortgage that does not render the security inadequate. However, unless it is to take effect upon the lease’s termination or the mortgage’s redemption, a lessor or mortgagor is not permitted to impose any additional easement on such property without the lessee’s or mortgagee’s approval.
3. Lessee-  No lessee or other person with a derivative interest may, in derogation of the lessor’s or superior proprietor’s rights, impose an easement on the property he owns that will take effect after his own interest expires.

Section 9: Easement to do acts which are necessary for the preservation of the servient heritage – This section provides for the creation of easements that are necessary for the preservation of the servient heritage, such as the right to enter the servient heritage to repair or maintain it.

Case Law

In Ayyaswami Gounder and Ors. vs. Munnuswamy Gounder and Ors. (25.09.1984 – SC): MANU/SC/0226/1984

Facts: The parties are descendants from a common ancestor and they owned joint properties. A partition took place between the parties where under survey Nos. 95 and 96 fell to the share of the plaintiffs and 15 cents of land in plot where the common well is situated and the channel running from that common well were, however, kept joint for the common enjoyment of the parties. The defendants objected to the use of the common land and the common channel for taking water from their exclusive well. Hence the plaintiffs filed the suit. The trial court by its judgment found that the plaintiffs being co-owners of the common property were entitled to use the property in the way most advantageous to them and the defendants having not pleaded or proved any damage or loss to the common property cannot obstruct the plaintiffs from taking water to their lands from their exclusive well through the common channel. On the first appeal by the defendants , with the little modification the first Appellate Court confirmed the decree of the trial court. The defendants feeling aggrieved took up the matter in second appeal and the High Court reversed the judgments and decrees of the two courts below and dismissed the suit holding that the plaintiffs did not acquire any right either by grant or by prescription by way of easement. The plaintiffs-appellants have now approached this Court.

Held: Appellants-plaintiffs have full right to use common land and common channel without making any particular claims about harm to respondents-defendants. The appellants asserted their entitlement based on acknowledged co-ownership rights, encompassing unrestricted usage and unlimited point of disposition. The High Court’s ruling that the appellants’ right to obtain water was not obtained through a grant from the respondents or any other sale deed was unwarranted. Co-ownership rights are predicated on a number of rights that the High Court has overlooked. The appellants’ primary basis for their claim is the right of co-ownership; they only assert easement rights as a backup. Given the current state of scarcity and the concerted efforts being made at all levels to boost agricultural productivity for the nation’s millions of hungry farmers, it would not be ideal to let respondents to obstruct appellants’ plots’ irrigation through a shared channel from their unique well. Therefore, the respondents’ desired conclusion is not warranted by law or expediency.

In K. Kalianna Gounderand another v. Sundararaj and another (2019) 

wherein it was decided that the parties themselves could not create an easement right by reading a recital or any document; rather, the easement right had to be established in accordance with the legal procedures outlined in the Indian Easement Act.

Conclusion

In conclusion, legislative rights of property owners or occupiers are essential for protecting property rights and ensuring a fair and balanced legal framework for property ownership. These rights include exclusive possession and control, the right to transfer or lease property, the right to exclude others, and the right to use property within legal limits. Understanding these rights is crucial for property owners and occupiers to assert and protect their interests in the face of potential infringements.

References

 

indiankanoon. (n.d.). Retrieved from indiankanoon: https://indiankanoon.org/doc/82950642/#:~:text=%2DThe%20owner%20or%20occupier%20of,in%20his%20right%20of%20way.

kapur, P. (n.d.). ipleaders. Retrieved from https://blog.ipleaders.in/an-overview-law-of-easements-in-india/

Submitted By

Janvi Bajpai is a Law Undergrad at Yashwantrao Chavan Law College, PuneSavitribai Phule Pune University.

and co-authored by Shubham Singh is a Law Undergrad at Yashwantrao Chavan Law College, Pune

Savitribai Phule Pune University.