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ACQUISITION OF OWNERSHIP BY POSSESSION[1]
QUESTION BANK
- How can easement be acquired under the Limitation Act?
SHORT NOTES
- Acquisition of easement.
SYNOPSIS
Acquisition of easement by prescription (S. 25)-
Filing suit within two years from interruption-
Some important terms used in S. 25-
(i) ‘As of right’-
(ii) ‘Peaceably’-
(iii) ‘Openly enjoyed’-
(iv) ‘Without interruption’-
(v) ‘As an easement’-
Acquisition of easement by prescription[2] (S. 25[3]):-
(a) where– (i) the access and use of light or air
(ii) to and for any building
(iii) have been peaceably enjoyed therewith
(iv) as an easement and as of right
(v) without interruption and for twenty years, and
(vi) (such right or easement) shall be absolute and indefensible
(b) where- (i) any way or watercourse, or
(ii) the use of any water or any other easement (whether affirmative or negative),
(iii) has been peaceably and openly enjoyed by any person (claiming title thereto)
(iv) as an easement and as of right
(v) without interruption and for twenty years
(vi) shall be absolute and indefensible.
In the case of Government property, the period extends to 30 years instead of 20 years in private cases (S. 25 (3).
In other words, S. 25 provides a substantive right of an easement to the easement holder. It lays down that the right to access and use of light or air, way or water course, use of water or their easement if peacefully enjoyed without interruption and for twenty years, it becomes absolute and indefeasible easement.
Illustrations
(i) A suit was brought in 1911 for obstruction of a right of way. The defendant admits the obstruction but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption from 1st January 1890 to 1st January 1910. The plaintiff is entitled to judgment.
(ii) In a like suit, the plaintiff shows that the right was peaceably and openly enjoyed by him for 20 years. The defendant proves that the plaintiff, on one occasion during the 20 years, has asked his (defendant’s) leave to enjoy the right. The suit shall be dismissed.
Filing suit within two years from interruption-
Sub-section (2) of S. 25 states that each of the periods of twenty years shall be taken to be a period ending within two years before the institution of the suit wherein the claim to which such period relates is contested.
In other words, sub-section (2) explains how the period of 20 years (mentioned in sub-section (1) of S. 25) is to be computed. According to it, the exercise of an easement right must be within a period of two years of the suit. If it was not exercised (i.e., the suit is not filed) within that period of two years (from interruption of easement right), the suit will be time-barred.
Thus, the title to the easement is not complete merely upon effluxion of the statutory period of 20 years or more until the right is brought into question.
Thus, the requirements of Sub-section (2) are-
(i) enjoyment of right or easement for 20 or more years.
(ii) filing of the suit within two ears from interruption of such right (dispossession, etc.) by the defendant.
For example, A brought suit in 2005 for obstruction of a right of way by B. A proved that he enjoyed the right peaceably and openly since 1982 for 20 years. The defendant admitted that A had enjoyed the right for 20 years but proved that A had not enjoyed the right since 2002 (i.e. since 3 years prior to filing the suit). A’s suit must fail because A should have filed suit within 2 years from the interruption of his right, i.e. till 2004. A has forgiven the right for more than 2 years; therefore, A’s right has not become absolute.
Some important terms used in S. 25-
(i) ‘As of right’[4]–
The word ‘as of right’ connotes that the person claiming the right must have exercised it as if he had been the true owner without permission or license from anybody else.
In other words, the term ‘as of right’ means ‘without permission or favour of anybody else’.
(ii) ‘Peaceably’[5]–
The term ‘peaceably’ connotes that the enjoyment of the right should be neither by violence nor by force nor by hostile disturbances on the other party.
(iii) ‘Openly enjoyed[6]’-
The term ‘openly enjoyed’ connotes that the enjoyment of rights must be open, peaceful, and manifest but not clandestine and invisible.
In other words, to create right, the servient tenement should have knowledge of such enjoyment by others.
(iv) ‘Without interruption[7]’-
The term ‘without interruption’ connotes that the enjoyment of right must be without any obstruction or prevention to the user of easement by some person acting adversely.
Explanation to S.25 provides that- nothing to be considered as an interruption-
(a) unless there is an actual discontinuance of the possession or enjoyment;
(b) by reason of obstruction by the act of some person other than the claimant and
(c) unless such an obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making it.
In other words, for the time being, a mere non-user of an easement is not an interruption.
(v) ‘As an easement[8]’-
The claimant must have enjoyed the right as an easement in another’s property. In other words, the right must have been enjoyed by the claimant as a dominant owner on the land of another (i.e. servient tenement).
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[1] कब्जाने / वहीवाटीने मालकीहक्क मिळविणे [कब्जा/हस्तांतरण द्वारा स्वामित्व प्राप्त करना]
[2] सततच्या उपयोगाद्वारे सुविधाधिकार मिळणे [निरंतर उपयोग द्वारा सुखाचार का अधिग्रहण]
[3] Of the Limitation Act, 1963.
[4] हक्क म्हणून/अधिकार म्हणून [अधिकार के रूप में/अधिकार के रूप में,]
[5] शांततामयरित्या [शांति से,]
[6] मुक्तपणे उपयोग,] [स्वतंत्र रूप से उपयोग करें,]
[7] मुळ मालकाच्या कोणत्याही अडथळयाशिवाय [मूल स्वामी के किसी भी बाधा के शिवाय]
[8] सुविधाधिकार म्हणून [सुविधा के मामले में]