Easement Right is Permanent for Next Generation's Legal Heirs

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(2012) 8 MLJ 379 J. Chandraekaran and Ors Vs V.D. Kesavan

(A)        Common usage – Right to use common passage – Whether plaintiff was entitled to common usage of the suit land – Held, document has to be read as a whole and it’s spirit should be taken note of – In recitals of partition deed, defendant and plaintiff’s father admitted that suit land should be available for both of them – Plaintiff derived his title only under his father even though not by inheritance, at least by compromise as envisaged under compromised deed – Plaintiff had right of common passage in schedule lane.

(B)         Indian Easements Act (5 of 1882), Section 15 – Prescription – Acquiescence – Electric metres of defendants fixed on wall of plaintiff – Whether defendants have right to continue such metres fixed on plaintiff’s wall as latter acquiescence to it – Held, once as per partition deed, specific right is found conferred on plaitniff’s father, cannot exclude his heir from using suit lance by just pleading prescription – Simply because plaintiff tolerated defendants, does not mean that ad nauseam and ad infinitum he should tolerate the same – Plea of acquiescence or prescription pleaded by defendants is untenable – Second appeal and cross-appeal dismissed.

What Law/Act says?

Section 13(e) and (f) provide as follows:

Where a partition is made of the joint property of several persons (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

Section 15 of the Easement Act inter alia provides:

where a right of way or any other easement has been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as of right, without interruption and for twenty years.... Explanation II. Nothing is an interruption within the meaning of this section unless there is an actual cessation of the enjoyment by reason of an obstruction, by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

Conclusion:

An easement cannot be extinguished by virtue of creation of any agreement as to no alternative remedy available to enjoy the same and it it was common usage for all. When the right has been accrued from the ancestral or previous owner by creating an agreement that benefit goes to all apparent legal heir eternally or perpetually. Hence, any one of the next legal heirs or owners or possessor cannot impose any restriction over next generation’s beneficial enjoyment.