What are easementary rights
Author: Mr. Harshal Sreen, Institute of Law, Nirma University.
Easement is defined under section 4 of the Indian Easement Act, 1882. An easement is a right which the owner or occupier of a certain land possess, as such for the beneficial enjoyment of that land to do something or to prevent and continue to prevent something being done, in or upon or in respect of certain another land not his own. For example – the right of way, right to light, right to air, etc. The Indian Easement Act says that if a person has enjoyed these over a period of time, they have a valid right without any restriction, almost as though it were a privilege.
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:
- Dominant and survient tenement.
- Easement should accommodate the dominant tenement
- Easementary rights must be possessed for the beneficial enjoyment of the dominant tenement.
- Dominant and survient owners must be different persons.
- 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
- The something must be of a certain or well-defined character and be capable of forming the subject matter of a grant
Right To Use Passage Granted In The Sale Deed Will Not Extinguish In Terms Of Section 41 Indian Easements Act
The supreme court in the case of Dr. S. Kumar v. Ramalingam has held that the right to use passage granted in the sale deed will not extinguish in the terms of section 41 of the Indian easement act, 1882.
Section 41 of the Indian easements act, 1882
This section deals with the extinction of easement rights on termination of necessity. This section states that an easement of necessity is extinguished when the necessity comes to an end. It can be understood properly by an illustration – A grants B a field inaccessible except by passing over A’s adjoining land. B afterward purchases a part of that land over which he can pass to his field. The right of way over A’s land which B had acquired is extinguished
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. Or in other words, it can be said that an easement by necessity is an easement that is granted when two parcels are situated such that the nonowners parcel of land is landlocked. In that regard, the easement allows the non-owner to pass over the owner’s land in order to gain access to a public road. It’s important to note that an easement by necessity does not give the user title to the land. Instead, it is simply a right to use the property.
An easement by necessity can be terminated when the necessity for crossing an owner’s land no longer exists. For example, if a new road is created that reaches the previously landlocked parcel of land, the easement by necessity can be terminated.
Section 48 of the Transfer of Property Act
When there are two or more competing equitable interests, the equitable maxim qui prior est tempore potior est jure (he who is earlier in time is stronger in law) applies. Section 48 of the Transfer of Property Act embodies this principle in legislation. It deals with Priority of rights created by transfer and states that Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.
The Section is founded upon the important principle that no man can convey a title than what he has. It is a principle of natural justice that if rights are created in favour of two persons at different times, the one who has the advantage in time should also have the advantage in law. This rule, however, applies only to cases where the conflicting equities are otherwise equal. If a person has already effected a transfer, he cannot derogate from his grant and deal with the property free from the rights created under the earlier transaction. Section 48 is absolute in its terms and does not contain any protection or reservation in favour of a subsequent transferee who has no knowledge of the prior transfer.
 S. Arunachalam v. Sivan Perumal Asari, A.I.R. 1970 Mad. 226.