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ACQUISITION OF EASEMENTS BY PRESCRIPTION
QUESTION BANK
1. How can an easement be acquired under the Limitation Act?
SHORT NOTES
1. Acquisition of easement.
SYNOPSIS
c. Result:
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Section 25 of the Limitation Act, 1963, provides a substantive mechanism for the acquisition of easementary rights through long, continuous, and uninterrupted enjoyment. It lays down distinct criteria for different categories of easements.
Where the access and use of light or air to and for any building have been:
i. Peaceably enjoyed therewith,
ii. As an easement,
iii. As of right,
iv. Without interruption, and
v. For twenty years,
The right to such access and use of light or air shall become absolute and indefeasible.
Where any way, watercourse, use of water, or any other easement (whether affirmative or negative) has been:
i. Peaceably and openly enjoyed,
ii. By any person claiming title thereto,
iii. As an easement,
iv. As of right,
v. Without interruption, and
vi. For twenty years,
The right to such easement shall become absolute and indefeasible.
Where the property over which the easement is claimed belongs to the Government, the statutory period of enjoyment required to make the right absolute and indefeasible is thirty years instead of twenty years.
(ii) In a similar suit, the plaintiff demonstrates that the right of way was peaceably and openly enjoyed by him for 20 years. However, the defendant proves that the plaintiff, on one occasion during those 20 years, asked for the defendant’s explicit leave (permission) to enjoy the right. The suit shall be dismissed, as the enjoyment was not "as of right".
Section 25(2) dictates how the 20-year (or 30-year) statutory period must be calculated in relation to legal proceedings. It states that each period of twenty years must be taken as a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
An easementary right by prescription does not become absolute merely by the passage of 20 years. The right remains inchoate until it is brought into question in a court of law. To successfully secure an indefeasible title, the plaintiff must satisfy two conditions:
i. Enjoyment of the right for a continuous period of 20 years (or 30 years against the Government).
ii. Institution of a suit within two years from the date of the actual cessation or interruption of that right. If a party acquiesces to an interruption and fails to file a suit within two years, the right is legally lost.
In 2005, A brings a suit against B for obstructing his prescriptive right of way. A proves that he enjoyed the right peaceably and openly from 1982 to 2002 (a period of 20 years). However, B proves that A has not used the path since 2002 due to the obstruction (meaning an interruption of 3 years prior to the filing of the suit).
c. Result: A’s suit must fail. To claim the benefit of Section 25, A was legally mandated to file the suit within 2 years of the initial interruption (i.e., on or before 2004). By waiting 3 years, A has forgone his right, and it cannot be declared absolute.
This connotes that the claimant must have exercised the right under a claim of independent title, treating it as if they were the legitimate owner of the right, without seeking permission, license, or favor from the owner of the land.
This requires that the enjoyment of the easement must be tranquil and free from challenge. It must be maintained without recourse to physical violence, force (vi), or amidst hostile or litigious disturbances by the owner of the servient tenement.
The enjoyment must be patent, manifest, and visible (nec clam), not clandestine or secretive. The use must be conducted in such a manner that the owner of the servient tenement has actual or constructive knowledge of the user.
This requires that the user must not have been physically obstructed or prevented from using the easement by an adverse act of the servient owner.
Nothing is deemed to be an "interruption" under this section unless:
i. There is an actual discontinuance of the possession or enjoyment.
ii. The obstruction is caused by the act of some person other than the claimant.
iii. The obstruction is submitted to or acquiesced in for one year after the claimant has received notice both of the obstruction and of the person causing it.
Note: A brief, temporary non-user due to seasonal factors or lack of necessity does not amount to a legal "interruption" unless it meets the one-year acquiescence test above.
The claimant must have enjoyed the right strictly in the character of an easement over another person's property. This implies the existence of two distinct elements: a dominant tenement (the land benefiting from the right) and a servient tenement (the land burdened by the right), belonging to two different owners. A person cannot claim an easement over their own land.
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