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THE EXTINCTION[1], SUSPENSION[2] AND REVIVAL[3] OF EASEMENT

Table of Contents

(Ss. 37 to 51)

QUESTION BANK

Q.1 Define easement. Discuss the law relating to extinction of easement?

Q.2 Define easement. Explain provisions as to the extinction, suspension and revival of the easement.

Easementary rights are created based on necessity and convenience. Similarly, after the fulfilment of necessity, easementary rights come to an end. However, sometimes, easementary rights may be suspended and revived.

Ss. 37 to 51 provides circumstances in which the right of easement is extinct, suspended or revives, viz-

I. Extinction of Easementary rights:-

1) Extinction by the dissolution of the right of servient owner[4] (S.37):-

The grant of an easement created by persons having limited interest cannot continue after their own interest in the property ceases to exist. In other words, the easement becomes extinct with the end of the servient owner’s limited ownership.

Illustrations

a) A transfers Sultanpur to B on condition that he does not marry C, and B imposes an easement on Sultanpur. Then B marries C, B’s interest in Sultanpur ends, and with it, the easement is extinguished.
b) A, in 1960, let Sultanpur to B for 30 years from the date of the lease. B, in 1961, imposed an easement on the land in favour of C, who enjoyed the easement peaceably and openly as an easement without interruption for twenty-nine years. B’s interest in Sultanpur then ends, and with it, C’s easement[5].

2) Extinction by release (S. 38)[6]:-

An easement is extinguished when the dominant owner releases it, expressly or impliedly. If the person releasing the easement has limited interest in the servient heritage, the release only operates with that much part.

a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and C, releases the easement. The release is effectual only as against A and his legal representative.
b) A grants B an easement over A’s land for the beneficial enjoyment of his house. B assigns the house to C. B then purports to release the easement. The release is ineffectual[7].

3) Extinction by revocation[8] (S. 39):-

An easement is extinguished when the servient owner, in the exercise of a power reserved on this behalf, revokes the easement. In other words, when the dominant owner takes back the easement in the use of his protected right, the easement is extinct.

4) Extinction on the expiration of a period or condition[9] (S. 40):-

An easement created for a specific period or upon a specific condition extinct, on expiration of the period or fulfilment of the condition.

5) Extinction on termination of necessity (S. 41):-

An easement of necessity is extinguished when the necessity comes to an end.

Illustration

A Grant B is filed as inaccessible except by passing over A’s adjoining land. B afterwards purchases a part of that land over which he can pass through his field. That right of way over A’s land, which B had acquired, is extinguished.

6) Extinction of useless easement[10] (S 42):-

An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.

7) Extinction by a permanent change in dominant heritage (S. 43):-

The dominant owner has the right to alter the mode and place of enjoyment of the easement from time to time, with certain limits. However, such alternation should not put an additional burden upon the servient property. Therefore, the section lays down that any change in the mode of enjoyment shall be sufficient to extinguish the easement if it is permanent in character. In Sardar Saheb V. Rallaram[11]

Facts:- Plaintiff has an easement of light and air relating to a window. That window was four feet long and two feet wide. The window was situated at a height of 19 feet.

The plaintiff constructed a new building at the same place. He kept the window at a height of 116 feet, with a width of 25 feet and a length of 45 feet.

Issue:- whether the plaintiff can continue the same easement as before.

Held:- the situation of the window is such that the old easement cannot be used for the benefit of the new window.

8) Extinction on permanent alteration of servient heritage by superior force[12] (S. 44):-

An easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement. However, this principle does not apply to the easement or right of way; the servient owner has to give another way to the dominant owner.

Illustration

a) A grants to B, as the owner of a certain house, the right to fish in a river running A’s land. The river changes its course permanently and runs through C’s land. B’s easement is extinguished.
b) Access to a path over which A has the right of way is permanently cut off by an earthquake, and A’s right is extinguished.

9) Extinction by the destruction of either heritage[13] (S. 45):-

An easement is extinguished when either the dominant or the servient heritage is completely destroyed.

Illustration

A has the 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. A’s easement is extinguished.

10) Extinction by unity of ownership[14] (S. 46):-

An easement is extinguished when the same person becomes entitled to absolute ownership of the whole dominant and servient heritage.

Illustrations

a) A, as the owner of a house, has the right of way over B’s field. A mortgages his house, and B mortgages his file to C. then C forecloses both mortgages and becomes thereby the absolute owner of both houses and files. The right of way is extinguished.
b) the dominant owner acquires only part of the servient heritage; the easement is not extinguished except in the case illustrated in S. 41[15].

11) Extinction by non-enjoyment (S. 47):-

A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.

Illustration

A has rights of way from the high road thither over the heritages X and Z and the intervening heritage Y, as annexed to his house. Before the twenty years expire, A exercises his right of way over X; his rights of way over Y and Z are not extinguished.

12) Extinction of accessory rights[16] (S. 48):-

When an easement is extinguished, the rights (if any) accessory thereto are also extinguished.

Illustration

A has an easement to draw water from B’s well. As an accessory thereto, he has the right of way over B’s land to and from the well. The easement to draw water is extinguished under S. 47. The right of way is also extinguished.

II. Suspension of Easement (S. 49):-

An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein.

III. Revival of easement (S. 51):-

In the following circumstances, easement extinct can be revived viz:-

1) Revival of easement extinct by the destruction of property:-

As we have already discussed under S. 45, the easement extinct by destroying either dominant or servient property; however, it can be revived under the following circumstances, viz.

a) when property destroyed is re-established before the end of 20 years due to accumulation of river soil, i.e. by deposit of alluvion.
b) When property destroyed is a servient heritage and before completion of 20 years that house has been reconstructed at the same place;
c) When heritage is destroyed, it is a dominant house, and before the completion of 20 years, it has been reconstructed in the same place so that it does not impose more burden on servient heritage.

2) Revival of easement by the cancellation of a grant by the court:-

As we have discussed under S. 46, the easement is extinct by unity of ownership; the same can be revived if the court sets aside grant-making unity of property.

3) Revival of easement by continuing use:-

As discussed under S. 47, the easement is extinct by non-enjoyment; the same can be revived by starting enjoyment of it within 20 years of its non-use.

Illustration

A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y. Before the twenty years expire, A exercises his rights of way over. X. his rights of way over Y and Z are not extinguished.

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[1] संपुष्टात येणे [सुखभोग कि समाप्ति]

[2] स्थगित होणे [सुखभोग का निलंबनs]

[3] सुखभोग का पुनरजीवन [पुर्णजिवित होणे]

[4] सर्वियंट वोनरचा अधिकार संपुष्टात येण्याने [सुखभोग कि रिहाई ]

[5] c) A and B, tenants of C, have permanent transferable interest in their respective holdings. A imposes on his holdings irrigating B’s land. B enjoys the easement for twenty years. Then A’s rent falls into arrear and his interest is sold. B’s easement is extinguished.

d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favour of C in accordance with the provisions of S. 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not thereby extinguished.

[6] lksMqu ns.;us

[7] C) A, having the right to discharge his eaves-droppings into B’s yard, expressly authorises B to build over this yard to a height which will interfere with the discharge. B builds accordingly. A’s easement is extinguished to the extent of the interference.

d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon the as permanently. The easement is impliedly released.
e) A, having a projecting roof by means of which he enjoys an easement to discharge eaves droppings on B’s land permanently alters the roof so as to direct the rain-water into a different channel and discharge it on C’s land, the easement is impliedly released.

[8] रदद् केल्याने [निरसन द्वारा विलुप्त होना]

[9] कालावधि व अटीच्या संपुष्टात येण्याने [अवधि की समाप्तिसे]

[10] निरोपयोगी होण्याने [बेकार सुखभोग का विलुप्त होना]

[11] A.I.R 1937 Lah 839

[12] सर्वियंट हेरीटेज मध्ये नैसर्गिक कारनांनी कायमचा बदल झाल्याने

[13] मालमत्ता नष्ट होण्याने [किसी भी विरासत के विनाश से विलुप्त होना]

[14] दोन्ही मिळकती एकाच मालकाकडे आल्याने [दोनों सम्पत्ती के एक मलिक के पास आने से]

[15] c) the servient owner acquires the dominant heritage in connection with a third person; the easement is not extinguished.

d) the separate owns of two separate dominant heritages jointly acquire the heritage which is servient to the two separate heritages; the easements are not extinguished.
e) the joint owners of the dominant heritage jointly acquire the servient heritage; the easement is extinguished.
f) A single right of way exists over two servient heritages for the beneficial enjoyment of a single dominant heritage. The dominant owner acquires only one of the servient heritage the easement is not extinguished.
g) A has a right of way over B’s road. B dedicates the road to the public. A’s right of way is not extinguished.

[16] मुळ अधिकाराबरोबर संबंधित अधिकारसुध्दा संपुष्टात येतात [दोनों सम्पत्ती के एक मलिक के पास आने से]