The Indian Easements

Act, 1882

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Meaning
 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.
 Section 4 of the Indian Easements Act defines

easement as:
 An easement is a right 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.

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 DOMINANT HERITAGE AND SERVIENT HERITAGE
 DOMINANT OWNER AND SERVIENT OWNER

 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.

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Examples of Easement
 A, as the owner of a certain house, has a
right of way over his neighbour B’s land for
purposes connected with the beneficial
enjoyment of the house. This is an easement.
 A, as the owner of a certain house, has the

right to go on his neighbour B’s land and to

take water for the purposes of his household,
out of a spring therein. This is an easement.
 A, as the owner of a certain house, has the

right to draw water from B’s stream to supply

the fountain in the garden attached to the
house. This is an easement. 4
Other examples
 Right to collect water from a well or spring
 Right of access and use of light
 Right of air
 Right to bury dead in a particular place

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Essential of an Easement :­

 There must be an owner or occupier of certain land.

 There must be a right vested in such owner or
occupier
 (as such owner or occupier) 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.
 The right must be for the beneficial enjoyment of his
land.
 The other land in or upon which the right to be
exercised, must not be owned or occupied by him,
but by some other person.

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Characteristics of an easement :­

 There must be a dominant and servient tenement.

 The right of easement must be possessed for the

beneficial requirement of the dominant tenements.

 Dominant and servient owners must be different

persons.
 The right should entitle the dominant owner to do

and to continue to do something or to prevent and

continue to prevent something being done, in or
upon or in respect of the servient tenement.
 That something must be of a certain or

well defined character and must be capable of

forming the subject­matter of a grant.
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Nirmala Devi and Ors. v. Ram Sahai
and Ors. AIR 2004
The court laid down that in view of the definition of the
Easement in Section 4 of the Easements Act the
following materials are required to be present in order
to claim an easement right:-
 the right is in the owner or occupier of land as such;

 it is for the beneficial enjoyment of that land;

 it is to do or to continue to do something or to

prevent or continue to prevent something being done;

 that something is in or upon or in respect of certain

other land; and

 the other land is not his own.

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Kinds of Easements
 Section 5 of The Indian Easement Act, defines different
kinds of easements like Continuous and discontinuous,
apparent and non­-apparent easements.
 A continuous easement is one whose enjoyment is or may

be continual without the act of man.

 A discontinuous easement is one that needs the act of

man for its enjoyment.

 An apparent easement is one the existence of which is

shown by some permanent sign, which, upon careful

inspector by a competent person, would be visible to him.
 A non-­apparent easement is one that has no such sign.

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Illustrations

 A right annexed to B’s house to receive

light by the window without obstruction by his
neighbour A. This is a continuous easement.
 A right of way annexed to A’s house over B’s land.
This is a discontinuous easement.
 There is a drain from A’s land to B’s land and from
there it is led to open yard. This is apparent only
by inspection. These are apparent easements.
 A right annexed to A’s house to prevent B from
building on his own land. This is a non­-apparent
easement.

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Modes of Creation of Easement
 Grant
 Prescription
 Necessity
 Quasi Easement
 Customary

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EASEMENTS BY PRESCRIPTION(section
15)
 Prescription means getting a right by continuous
assertion of the right, which has been in use for a
long period of time. Thus, to establish in a Court of
law, a right of easement by way of prescription,
the following criteria are to be satisfied:
 There must be a pre-existing easement which

must have been enjoyed by the dominant owner;

 The enjoyment must have been peaceable
 The enjoyment must have been as an easement
 The enjoyment must have been as of right;
 The right must have been enjoyed openly
 The enjoyment must have been for a period of

twenty years
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 The enjoyment for 20 years must have been
without interruption; and
 The period of twenty years must have ended within

a period of two years immediately preceding the

date of suit claiming such easement.
 In case of easement against Government the
 statutory period is 30 years.

 The first seven points were specifically pointed out

by the honourable High Court of Kerala in Krishnan
v. Nanukuttan (1986)

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By Grant

 An easement is acquired by an express grant

made in the deed of sale, mortgage or other
transfers. The grantor uses express terms to
convey his intention. If the value of the
immovable property is above Rs.100/- it
should be in writing and duly registered.

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EASEMENT OF NECESSITY, Sec. 13
 An easement of necessity is implied only
where the right is essential for the use of the
land granted or retained. The question is not
whether it is necessary for the reasonable
enjoyment of the land but whether the land
can be used at all without the implied grant
or reservation. A claim will only be successful
where the land is “absolutely inaccessible or
useless” without the easement.

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EASEMENT OF NECESSITY-Example
 A sells a land B to be used for agricultural purposes. The
land is sold to C. The land is accessible only by passing
through A’s land. G is entitled to the right of way by
necessity for agricultural purposes.

 In partition, A becomes the owner of an upper room on the I

floor. B becomes the owner of the room immediately beneath
it. A is entitled to the support from B's room as it is
absolutely necessary for his safety.

 Muhammad Ramzan v. Naseer Beg-

“Plaintiff must not only prove existence of right of easement at the time
of transfer of property to him but also such right being necessary for
enjoying transferred property.”

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QUASI EASEMENTS, Sec. 13
 Those arising from circumstances.
 No express grant.
 The principle of quasi easement is that where

the one portion of the property has been

dependant on another portion for necessary
advantages and the former portion is
alienated, the denial to the grantee of the
enjoyment of similar advantages would be to
deprive his new acquired property of utility
and benefit of his bargain.

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R
O
A
A
D

B A

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 Easements are called 'quasi', as those arising
out of circumstances i .e., when the common
properties are converted into tenements by
sale, mortgage, partition etc. In such a case,
there is an 'implied grant'. There is no
express grant or transfer. Hence, in a sale or
partition, even if there is no grant of such an
easement, the courts construe that there is an
implied transfer of an easement. (The leading
case is Pyer V Carter).

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 When a person transfers immovable property to
another then:
 i) If an easement is apparent and continuous and
necessary the transferee is entitled to such easement.
 ii) If such an easement is apparent continuous and
necessary to enjoy the said property the transferor
has a right to such easement over the property
transferred by him.
 iii) In a partition if such an easement is apparent and
continuous and necessary for enjoyment the share of
one co-parcener over the other, he is entitled to such
easement.

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By customs (section 18)
 A customary easement arises in favour of a class of
persons such as residents of a locality or members of a
certain community, and though not necessarily
annexed to the ownership of land, it is enforceable as
a right to do and continue to do something upon
land or as a right prevent and continue to prevent
something done upon land.
 Sanction for its enforceability being in custom, the
right must satisfy all the tests which a local custom
for recognition by courts must satisfy.

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DUTIES AND LIABILITIES OF DOMINANT
OWNER AND SERVIENT
OWNER
 As per section 25 of the Act, the expenses
incurred in constructing works, or making
repairs, or doing any other act necessary for the
use or preservation of an easement, must be
made by the dominant owner.
 As per section 26 of the Act, where an easement
is enjoyed by means of an artificial work, the
dominant owner is liable to make compensation
for any damage to the servient heritage
arising from the want of repair of such work.

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 As per section 27 of the Act, the servient owner is
not bound to do anything for the benefit of the
dominant heritage, and he is entitled, as against the
dominant owner, to use the servient heritage in any
way consistent with the enjoyment of the easement;
but he must not do any act tending to restrict the
easement or to render its exercise less convenient.
 As per section 29 of the Act, the dominant owner
cannot, by merely altering or adding to the
dominant heritage, substantially increase an
easement.

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Disturbance to the right of
enjoyment of easement and
remedies thereon
 Sec. 32. The owner or occupier of the dominant heritage is
to enjoy the easement without disturbance by any other
person
 Interference with the right of easement may be graded into

three degrees.
 1) Interference which does not result into substantial

damage and which gives no cause of action.

 2)Interference which may cause damage but where

injunction can not give relief but only damages would be

sufficient.
 3) Interference where injunction is the proper remedy.

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Remedies on disturbance of
Easementary Rights
Sec. 33 to 36 of the Easement Act
1. Suit for compensation- substantial damage to the
plaintiff/ materially diminishing the value of the
dominant heritage.
2. Suit for declaration and Injunction to restrain
disturbance
Ram Kanya Bai & Anr vs Jagdish (2011) When a
person (dominant owner) has an easementary right,
and the servient owner disturbs, obstructs or
interferes with his easementary right, or denies his
easementary right, the remedy of the dominant
owner is to approach the civil court for the relief of
declaration and/or injunction.
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