CHANAKYA NATIONAL LAW UNIVERSITY

Final draft for fulfilment of project of

Property Law
on the topic
“Revival of Easementary Right”

Submitted to: Dr. Vijay Kumar Vimal

(Assistant Professor of Law)
Submitted by: Md. Asif Perwez
Roll number: 2619
3 rd semester (September 2022), B.B.A., LL.B. (Hons.)
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Declaration

I, Md. Asif Perwez, student of Chanakya National Law University, Patna hereby
declare that the project work entitled “Revival of Easementary right” submitted
to the Chanakya National Law University, Patna is a record of an original work
done by me under the guidance of Dr. Vijay Kumar Vimal, teacher in subject,
Chanakya National Law University, Patna

Thank you,
NAME: Md. Asif Perwez
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 2619
SEMESTER: 3rd
SESSION: 2021-2026
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Acknowledgement
I would specially like to thank my guide, mentor, Dr. Vijay Kumar Vimal, without whose
constant support and guidance this project would have been a distant reality.
This work is an outcome of an unparalleled support that I have received from Chanakya
National Law University, Patna.
I owe my deepest gratitude to the library staff of the university.
It would never have been possible to complete this study without an untiring support from my
family, especially my parents.
This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Thank you,
NAME: Md. Asif Perwez
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 2619
SEMESTER: 2nd
SESSION: 2021-2026
 3

Contents

Introduction ................................................................................................................................ 4
Aims and Objectives .............................................................................................................. 5
Hypothesis.............................................................................................................................. 5
Research Methodology .......................................................................................................... 5
Research Questions ................................................................................................................ 5
Mode of Citation .................................................................................................................... 5
Types of Easements ................................................................................................................... 6
Continuous or Discontinuous................................................................................................. 6
Apparent or Non- Apparent ................................................................................................... 6
Easement by Prescription ....................................................................................................... 6
Quasi Easements .................................................................................................................... 7
Easement of Necessity ........................................................................................................... 7
Importance of Easementary rights ............................................................................................. 9
Creation of Easementary rights................................................................................................ 10
Revival ..................................................................................................................................... 11
Suspension of Easement ...................................................................................................... 11
Conclusion ............................................................................................................................... 13
Bibliography ............................................................................................................................ 14
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Introduction
The concept of easement has been defined under Section 4 of The Indian Easements Act,
18821. According to the provisions of Section 4, an Easementary right is a right possessed by
the owner or occupier of the land on some other land, not his own, the purpose of which is to
provide the beneficial enjoyment of the land. This right is granted because without the existence
of this right an occupier or owner cannot fully enjoy his own property. It includes the right to
do or continue to do something or to prevent or to continue to prevent something in connection
with or in respect of some other land, which is not his own, for the enjoyment of his own land.

An easement is a right which the owner of a property has to compel the owner of another
property to allow something to be done, or to refrain from doing something on the survient
element for the benefit of the dominant tenement. For example - right of way, right to light,
right to air etc. An easementary right is almost like a privilege, depriving which the owner of
one tenement has a right to enjoy regarding that tenement in or over the tenement of another
person, by reason of which the latter is obliged to suffer or abstain from doing something on
his own tenement for the advantage of the former.

Easementary right must possess the following essentials:

1. Dominant and survient tenement
2. Easement should accommodate the dominant tenement
3. Easementary rights must be possessed for the beneficial enjoyment of the dominant
tenement.
4. Dominant and survient owners must be different persons.
5. The easementary rights should entitle the dominant owners to do and continue to
do something or to prevent and continue to prevent something being done, or in respect
of, the survient tenement; and
6. The something must be of a certain or well-defined character and be capable of forming
the subject matter of a grant. 2

In the leading case of Hero Vinoth Vs Seshammal3, it is held that an easement would last only
as long as the absolute necessity existed and such a legal extinction could not apply to an
acquisition by grant; if a right of way was provided to a particular sharer, it could not be
extinguished merely because such sharer had other alternative way.

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

1
The Indian Easements Act, 1882, ACT No. 5, Act of Parliament
2
Singh, Shivanand, India, A Glace over the Easementary rights (2913)
https://www.mondaq.com/india/land -law-agriculture/227658/a-glance-over-the-easementary-
rights
3
AIR 2006 SC 2234
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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.

Sections 37 to 51 of the Indian Easements Act, 18824 deal with the extinction, suspension and
revival of easements.

AIMS AND OBJECTIVES

The aims and objectives of the researcher are:
1. To explore the various kinds of Easements under the Indian Easements Act, 1882
2. To discuss the provision relating to the extinction, suspension and revival of easements
3. To discuss the judgements relating to extinction, suspension and revival of easements

HYPOTHESIS
The researcher deems that a more comprehensive piece of legislation should be brought in
order to govern easementary rights in India.

RESEARCH METHODOLOGY
The researcher has adopted the doctrinal method of research to explore the concept of a
Easementary rights and its revival. During the commission of this project, he consulted various
primary & secondary sources such as websites of numerous organizations, books, journals, articles
and research papers to learn about the extinction, suspension and revival of Easementary rights.
This method helped the researcher gain a panoramic view of the concept.

RESEARCH QUESTIONS
1. What are the types of easements mentioned under the Indian Easements Act, 1882?
2. What are the provisions relating to the extinction, suspension and revival of easements?
Explain them in detail.
3. What are the judgements by various High Courts and the Supreme Court relating to
extinction, suspension and revival of easements?

MODE OF CITATION
The researcher has followed the 20th edition of the Bluebook for the purpose of citation.

4
Id. at 1
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Types of Easements
According to Section 6 of the Indian Easements Act, 18825,

“An easement may be permanent, or for a term of years or other limited period, or subject to
periodical interruption, or exercisable solely at an explicit place, or at certain times, or
between certain hours, or for a particular purpose, Or on condition that it shall commerce or
become void or revocable on the happening of a specific event or the performance or non-
performance of a specified Act.”

The nature of easements is described under Section 7 of the Act, 1882 which states that
easements are restrictions of one or the other of the following rights, namely:
a. Exclusive right to enjoy – The prerogative of each owner of immovable Property
(subject to any law for the nowadays in force) to relish and lose identical and every one
merchandise therefrom and accessions thereto.
b. Rights to benefits arising from scenario the right of each owner of stabile property
(subject to any law for the present in force) to relish while not disturbance by the other
natural professionals that arise from its situation.

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.

EASEMENT BY PRESCRIPTION
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:

5
The Indian Easements Act, 1882, ACT No. 5, Act of Parliament
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1. T h e r e m u s t b e a p r e - e x i s t i n g e a s e m e n t w h i c h m u s t h a v e b e e n
e n j o y e d b y t h e d o m i n a n t owner;
2. The enjoyment must have been peaceable;
3. The enjoyment must have been as an easement;
4. The enjoyment must have been as of right;
5. The right must have been enjoyed openly;
6. The enjoyment must have been for a period of twenty years;
7. The enjoyment for 20 years must have been without interruption; and
8. T h e p e r i o d o f t w e n t y y e a r s m u s t h a v e e n d e d w i t h i n a p e r i o d o f t w o
y e a r s i m m e d i a t e l y preceding the date of suit claiming such easement.

The first seven points were specifically pointed out by the honourable High Court of Kerala in
Krishnan v. Nanukuttan6.

However, if such enjoyment is based on an agreement between the parties, which states
expressly or impliedly, that the enjoyment is not as an easement, the principle of Section 15 of
the Easements Act will not apply. Further, in order to constitute an interruption, there should
be a cessation of enjoyment by an obstruction created by a person other than the claimant, and
the claimant should not have acquiesced to the same. Also, if a person enjoys the benefit under
a life interest or an interest fixed at a period of over three years, then that period will be
excluded from the calculation of the twenty years, according to Section 16 of the Easements
Act.

Section 17 of the Indian Easements Act provides that the following easements cannot be
acquired by prescription:
a. An easement that imposes a liability on the property or would lead to the total
destruction of the property;
b. A right to the free passage of light or air to an open space of ground;
c. A right to surface-water not flowing in a stream and not permanently collected in a
pool, tank or otherwise;
d. A right to underground water not passing in a defined channel

QUASI EASEMENTS
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. A quasi easement will not come into
existence if it is expressly excluded by the terms of the grant or are inconsistent with the
intention of the parties.

EASEMENT OF NECESSITY
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. The most obvious example of a situation in which an easement of necessity may be
6
ILR 1986 (1) Kerala 526
 8

implied is where a grantor conveys an entire plot of land except for a piece in the middle, which
is completely surrounded by the part conveyed. Unless the reservation of a right of way over
the land granted is implied, the land in the centre would be completely landlocked.

An easement of necessity will not, however, be implied merely because it makes it more
convenient to use the land. An easement of necessity is coextensive with the necessity, as it
existed when the easement was imposed. These easements arise on the severance of tenements.
They are said to be created by implied grant. To take a concrete example, if the owner of a
certain field, who irrigates his entire field by taking water from a well situated within field,
sells a part of the field not containing the well, but retains the part containing the well, the
question would naturally arise whether the purchaser has right to take water from the vendor’s
well to irrigate his part. If the parties have settled this question by specific mention in the deed
of conveyance, their common intention as so expressed must be given effect to. But if the deed
of conveyance contains no reference to this point, law would grant to the purchaser of the part-
heritage an easement in favour of the said part heritage to take water from the well situated in
the other part-heritage retained by the vendor. According to the case of Muhammad Ramzan
vs. Naseer Beg7, the 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

7
1980 CLC 1555
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Importance of Easementary rights

Easements are certain rights that a person has over another’s land. Rights range from very
widespread forms of rights of way, most rights to use service conduits such as
telecommunications cables, power supply lines, supply pipes and drains, rights to use
communal gardens and rights of light, to more strained and novel forms. All types are subject
to general rules and constraints.

Some classes of easement are heavily constrained, the courts will only uphold these subject to
wide-reaching public policy, chiefly property rights interference, tests they have laid down in
precedent. Similar tests apply to the implication of easements. If they fail on any of these tests
the right claimed may be interpreted as a “mere” licence, typically a right of use revocable at
will. Details of the use, wording and history of certain rights are pivotal. Prime examples of
express purported easements which will only be upheld on particular facts are the use of a
communal garden with a public dimension or the use of parts of another person’s land for
parking.

An easement in its simplest form, allows a person to use a land of another person. Examples
of arrangements that may require an easement are to lay a pipeline, install a tower, wind farm,
or solar panel array. Prior to any construction, the landowner and person seeking the use of
the property need to agree on the use. The use of the property is usually documented in the
form of an easement. The easement agreement will provide for several events such as access,
construction space, damages and restoration, insurance, duration, and lease amount.
Eventually, the easement agreement may also address the removal of the installation once the
need for the use is no longer necessary.

Consider a natural gas pipeline as an example. Most gas leases allow the gas company to run
pipelines across your property when a well or production unit is located within your property
boundaries. A surface right agreement may be required. Even if the surface right agreement
is not required, a damage agreement may be required. Additionally, transporting third-party
or foreign gas across the landowner’ property may require a separate written agreement in the
form of an easement. Figuring out the authority of a pipeline company to install pipelines under
your existing gas lease is often the most important step in establishing leverage when right-of-
way agreements are presented. As a landowner, it is important to understand that you may have
the right to decline any proposed easement agreement that fails to provide compensation,
property protection, or insurance against future liability

The necessity of easements is shown by the Law Commission’s 2008 statistical finding that
express easements exist over or under at least 65% of registered freehold titles. In many cases,
it is impossible for a landowner or tenant to access a public highway without an easement of a
right of way over intervening land. The creation of easements is usually done expressly by
deed, but easements may be implied where they are necessary or would be reasonably expected
to be held by a landowner, an approach which reduces legal fees but is not altogether
uncontroversial, and has been the subject of recent reform proposals.
 10

Creation of Easementary rights

Easements are usually created by conveyance in a deed, or some other written document such
as a will or contract. Creation of an easement demands for the same formalities as the
transferring or creating of other interests in land do, which typically are: a signature, a written
instrument, and proper delivery of the document. In limited circumstances, the court would
create an easement by implying its existence based on the circumstances8.

Two familiar easements created by implication are easements of necessity and easements
implied from quasi-easements. Easements of necessity is typically implied to provide access to
a landlocked fragment of property. Easements implied from quasi-easements are based on a
landowner's prior utilization of part of his property for the benefit of another portion of his
land. Other methods of establishing easements are prescriptive use (the routine, adverse use of
another's land), estoppel, custom, public trust, and condemnation9. For example, A sells his
land to B and by the same deed he may grant a right of way to B for such land for another land
of his. Grant is provided by an agreement executed by the grantor in favour of the grantee for
specific consideration. The grant comes into effect when the grantee has the right to enter upon
the grantor’s land.

Easement by virtue of custom is nothing but a legal right which is acquired by the operation of
law through continuous use of a land over a long period of time. Henceforth the right of way
continues to exist by prescription, grant or by virtue of custom.

Easements, which are the subject matters of agreement between the two parties, are for right
of way, right to air and light. Surrendering an easement right does not refer to transfer of
property. Easement can be made, altered and even released. Easement right cannot be created
or altered orally. It must be in a written format. However, easements by prescription and custom
not necessarily be in writing. A deed of grant must clearly mention the purpose of which
easement is granted. By the deed of grant the subservient owner hands over free and full right
to the dominant owner and also his successors a passage wide enough for movement of people
or vehicles between the dominant owner's premises and the public road against a price
consideration. In the case of Moody v. Steggles10 the grant of a right to put up a signboard to
the adjoining property advertising the public house which constituted the dominant tenement
was held to comprise an easement.

8
Easement basics, Find Law, https://www.findlaw.com/realestate/land -
use%20laws/easementbasics.html .
9
Id.
10
Moody v. Steggles, 12 Ch D261 (EWCA: 1879).
 11

Revival
Usually, mere non- use of property does not end an easement. One or more of the following
factors might also have to be present. Extinction by dissolution of right of servient owner
happens:
• When, due to a cause which preceded the imposition of an easement, the person by
whom it was imposed discontinues to have rights on the servient heritage, the easement
considered to be extinguished. For example, X transfers Sultanpur to Y on condition
that he does not marry Z, Y impress an easement on Sultanpur. Then Y marries Z, Y’s
interest in Sultanpur ends, and with it the easement is extinguished.
• Agreement to terminate by grantor and the grantee of the easement: An easement
is considered to be extinguished when the dominant owner releases it, either expressly
or impliedly, to the servient owner. Such release can only be made in the circumstances
and to the extent in, and to which the dominant owner can alienate the dominant
heritage. An easement may be released only of the servient heritage. Likewise, as per
section 39 of the Indian Easements Act, 1870, an easement is terminated when the
servient owner, in exercise of power reserved in this behalf, revokes the easement.
• Expiration of the time allowed for the easement: An easement is terminated where
it has been imposed for a limited period of time, or acquired on condition that it shall
become void on the performance or non-performance of a specific act, and the period
either expires or the condition is fulfilled.
• Abandonment or expressed intent to discontinue use of the easement: A continuous
easement or a discontinuous easement is extinguished when it completely ceases to be
enjoyed as such for an unbroken period of about twenty years. With respect to a
continuous easement, from the very day of its enjoyment, was obstructed by the servient
owner or rendered not possible by the dominant owner; and, in the case of a
discontinuous easement, from the day on which it was last enjoyed by the person as a
dominant owner.
• Merger where one person buys both dominant and servient tenement: An easement
is extinguished when the same person becomes entitled to the absolute ownership of
the whole of the dominant as well as servient heritages. For example, X, as the owner
of a house, has a right of way over Y’s field. X mortgages his house, and Y mortgages
his field to Z. Then Z forecloses both mortgages and becomes thereby absolute owner
of both house and field. The right of way is extinguished.
• Extinction by end of necessity in case of easement by necessity: An easement of
necessity is extinguished when the necessity ceases. For example, X grant Y a field
inaccessible except by passing over X’s adjoining land, Y afterwards purchases a part
of that land over which he can pass to his field. The right of way over X’s land which
Y has acquired is extinguished.
• Extinction by Destruction of Subject Matter: An easement is extinguished when
either the dominant or the servient heritage is destroyed. For example, P has a right of
way over a road running along the foot of a sea cliff. The road is washed away by a
permanent encroachment of the sea. P’s easement is extinguished.

SUSPENSION OF EASEMENT
 12

An easement is suspended when the dominant owner becomes entitled to possession of the
servient heritage for a limited interest or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest. For example X has a right of way of
Y’s land obtains for lease his land, the easementary right of way is suspended during this
period.

An easement extinguished under Section 45 revives when the destroyed heritage is, before the
completion of twenty years has expired, restored by the deposit of alluvion or, when the
destroyed heritage is a servant building and before twenty years have expired such building is
rebuilt on the same site, and when the destroyed heritage is a dominate building and before the
twenty years have expired such building is rebuilt on the same site and in such a manner as not
to impose burden on the servant heritage. An easement extinguished under Section 46 is
revived when the grant or bequest by which the unity of ownership was produced, is set aside
by the decree of a competent Court of law. A necessary easement extinguished under the same
section is revived when the unity of ownership ceases due to any other cause. A suspended
easement is revived if the cause of Suspension is removed before the right is extinguished under
Section 47.

Unlike a lease, an easement does not give the holder a right of "possession" of the property.
Therefore, an easementary right is provided for specific relief from specific violations of
common basic rights. In the case of the right to way, any wrongful interference with the right
of way constitutes a nuisance. However, a right of way never entitles the grantee, or those
lawfully using the way under the grant, to the exclusive use of the land over which the way
exists nor every obstruction of the way amounts to an unlawful interference, and no action
would lie unless there is a substantial interference with the easement granted. In the case of
right to access of light, it does not consist of a right to have a continuance of the same amount
of light throughout. In case of a diminution, the dominant owner is bound to show that the
diminution has interfered with his ordinary occupations of life and it results in a nuisance if it
is sufficient to render the occupation of the house uncomfortable, and prevent the owner from
carrying his business as beneficially as he formerly did.

In the leading case of Hero Vinoth vs. Seshammal11, it is held that an easement would last only
as long as the absolute necessity existed and such a legal extinction could not apply to an
acquisition by grant. If a right of way was provided to a particular sharer, it could not be
extinguished merely because such sharer had other alternative way.

11
AIR 2006 SC 2234
 13

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 have 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.
 14

Bibliography

1. Gupta, H.P., Indian Easement Act, edition of 2014

2. Jain, J.D., Indian Easement Act, edition of 2018
3. Sinha, R.K., The Transfer of Property Act, 20th ed.
4. Sanjiva Row, T.V., The Indian Easements Act, 1882: (Act V of 1882.), edition of 2015
5. Katiyar, Brinda, Law of Easements & Licences, 12th ed.
6. Saxena, Poonam, Property Law, 11th ed.
7. https://www.scconline.com/
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10. Journals, magazines and newspapers
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10.2. Indian Express
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