An Easement is a legal right which an owner or occupier of a parcel of land has over another’s land for the beneficial enjoyment of his own land. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a watercourse, etc. Easements can be acquired by different ways and are of different kinds, that is, by an express grant in a deed of sale, mortgage or through any other form of transfer or under implied circumstances easement by grant, easement of necessity, easement by prescription, etc. 

Easements can be both positive or negative. Former refers to a right through which the dominant owner (owner of land) does some act to exercise the right over the land of the servient owner (owner of land on which liability is imposed). 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. 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 always annexed to the dominant tenement. It is a right of re-aliena, which means a right over a servient tenement and not on one's own land. The Madras High Court in A. Manivannan vs. Thariq (S.A. No. 212 of 2021 and C.M.P. No. 4234 of 2021) drew the above observation in connection with the concept of easement that has been defined under Section 4 of The Indian Easements Act, 1882 (Act). 

One of the most common forms of easementary right disputes are the ones in relation to rights by way of prescription. In a proceeding before the Apex Court in Justiniano Antao and Ors. v. Bernadette B. Pereira (AIR 2005 SC 236), the plaintiffs had filed a suit seeking a declaration that she had motorable access to her house through the property of the defendant by way of easementary right through prescription. The trial court held that the plaintiff had right of motorable access to her house through the property of the respondent-defendants by way of easementary right through prescription, which was reversed by the District Court on two grounds, one that right of way was not claimed as relief and second that the property of the plaintiff was bounded on two sides by road. The plaintiff filed a second appeal before the High Court of Bombay, Panaji Bench, Goa and the High Court reversed the finding of the first appellate court. 

On appeal, the Apex Court allowed the same, and set aside the order of the High Court and trial court, opining that “it is clear that it is not the case that the plaintiff has been using the access as of right through the property of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property we see no reason why the property of other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years.” .

In a similar manner, in Singaram Vs. Ramanathan (2023 (10) SC ALE 667), Ramanathan had instituted a suit to declare an easementary right to reach his land by walking on the A, B, C, and D ridges, which were stated to be situated in the centre of Singaram’s land, as well as to establish a right to ride a cart on the lands during the non-cultivation period. The Trial Court found that firstly Ramanathan had failed to establish his right as claimed and secondly found there was an alternate way to reach his land. This view was affirmed by the Appellate Court. However, the High Court reversed the findings, concluding that the pathway/varapu (already in existence) is to be kept open for reaching the agricultural land of Ramanathan but cannot be used as a cart track or road. The Apex Court set aside the order of the High Court and observed that the two Courts below had appreciated the evidence before them and Ramanathan had failed to establish his claim that he had the right of way to make use of the property of Singaram. The Apex Court also observed that, the High Court had erred in coming to findings and had not borne in mind any substantial question of law.

Interestingly once again the Apex Court in a recent decision before the Division Bench Justice Pankaj Mithal and Justice Prashant Kumar Mishra, in the matter of Manisha Mahendra Gala and Ors. Vs. Shalini Bhagwan Avatramani and Ors (AIR 2024 SC 1947), dealt with appeals from two suits, that is, one Suit No.14 of 1994 (Gala’s Suit) filed by predecessors of the Appellants (Gala’s) for declaration of easementary rights over the 20ft. wide road situate in the property of the Respondents (Ramani’s) and for permanent injunction in respect thereof and secondly Suit No.7 of 1996 (Ramani’s Suit) filed by the Ramani’s for declaring that the Gala’s or their predecessor-in-interest have no right, title and interest in the property and they do not have any right of way through the Ramani’s land. Several issues were framed by the Trial Court but the primary issue was whether the Gala’s have any easementary right of way over the land of the Ramani's, i.e., the disputed rasta. The Trial Court decreed the Gala’s suit, but the same was set aside by the appellate Court which was upheld by the High Court. On the other hand, the Ramani’s suit was initially dismissed by the court of first instance; however, on appeal, the order was set aside and the suit was decreed, holding that the Gala’s have no right of way either by easement of prescription or of necessity on the suit land/road. The Gala’s were restrained from disturbing the possession of Ramani’s over the suit land and from doing any overt act over it. Aggrieved by the dismissal of the Gala’s suit and the decreeing of the Ramani’s suit, the Gala’s preferred appeals before the Apex Court. 

The learned senior counsel for the Gala’s argued that the Gala’s were the owners of their land and other than the disputed rasta, they had no other alternative to enter upon their land. The Gala’s had acquired easementary rights by prescription and necessity, as well as the sale deed. This was stoutly opposed on behalf of the Ramani’s by their counsel. The Apex Court observed that for an easementary right by prescription, the peaceful enjoyment must be without interruption for over 20 years and merely by stating “last many years” in the pleadings is not sufficient to establish the easementary right. 

The Apex Court also observed that the evidence produced, simply proved that the road existed, which was not sufficient proof that the Gala’s acquired any easementary right over the same. Further, there was no evidence to prove that the Gala’s were in use of the said land for the last over 20 years uninterruptedly, as they entered only after purchasing the land in 1994, after the suit was filed. Any pre-existing right would have to be proved as existing prior to the institution of the suit, which could have been done only by the Gala’s predecessors, whose pleadings were vague and did not specifically state that he had been in use of the disputed rasta for over 20 years or that he had acquired and perfected easementary rights over the said rasta by prescription or necessity. Thus, in the absence of evidence or material to show acquisition of easementary rights, the predecessors could not have transferred such rights in favour of the Gala’s. Furthermore, the easementary right by necessity also failed owing to the existence of alternative ways to access the land. In light thereof, the Apex Court held that “the Gala’s are not entitled to any easementary right by necessity upon the disputed rasta”. 

In relation to the contention that the Gala’s had acquired the easmentary right under Sale Deed, reliance was placed on Dr. S. Kumar & Ors. vs. S. Ramalingam (2020) 16 SCC 553, which dealt with the right of easement expressly claimed under a sale deed to a buyer cannot be defeated or extinguished merely for the reason that easement of necessity had come to an end. The Apex Court, however, distinguished the above from Gala’s case as there was no evidence to show that the predecessors had acquired or perfected the easementary right. Therefore, the right that was not possessed by them could not have been transferred to the Gala’s under the Sale Deed, and particularly that the sale deed would not bind the third parties who are not signatories or parties to the said sale deed. 

The Apex Court, after considering the contentions of both parties, held that “We do not find any basis to record that the Gala’s have acquired easementary right over the disputed rasta in any manner, much less by prescription, necessity or under an agreement. Therefore, the appellate courts and the High Court have not committed any error of law in dismissing Suit No. 14 of 1994 of the plaintiffs/appellants and in decreeing Suit No.7 of 1996 of the defendants/respondents.”

An easement is a right that a person claiming as a right has to establish and is not a natural right to make use of the property of another. Not only should the nature of the easement be defined along with its manner of acquisition but also detail the disturbance or obstruction to such easementary rights. When dealing with an easement of prescription, proof that such right was enjoyed in a peaceful, open, and uninterrupted manner for a continuous period of twenty years, ending no more than two years before the suit is filed, is essential, along with the fact that no agreement to this effect was entered into with the owner; otherwise, the same would be construed as a license. The court cannot simply infer or assume the existence of an easementary right based on fragmented references within the pleadings or evidence. A comprehensive and precise articulation of all relevant facts is imperative for the court to consider any claim related to easementary rights.

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