TAMIL NADU NATIONAL LAW UNIVERSITY, TIRUCIHRAPALLI

Submitted for the internal assessment for the course of

B.A., LL.B (Hons.) – Third Semester
Academic Year: 2020-2021

Subject: Property Law

EASEMENTARY RIGHTS AND POSSIBLE VIOLATIONS

Course Faculty: Ms.Shanthi Samandha, Submitted By:

Professor (Law), Mr. Edgar.k,
TNNLU (BA0190020)

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 DECLARATION

I Edgar, Register Number BA0190020, hereby declare that this Research Paper / Research
Project work entitled “EASEMENTARY RIGHTS AND POSSIBLE VIOLATIONS” has
been originally carried out by me under the guidance and supervision of Prof. Shanthi
Samantha, professor of law, Tamil Nadu National Law University, Tiruchirappalli - 620 027.
This work has not been submitted either in whole or in part of any Degree / Diploma at any
University.
Place : Tiruchirappalli

Date : 31.3.2021

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 TABLE OF CONTENTS

1. Introduction……………………………………………………………..4
2. Rights of easementry and it’s elements……….……………….…4-7
3. Breach of easementry right…..………………………………….…7-9
4 Judiciary approach in easementry………………………..….9-10
5 Conclusion……………………………………………………….…11
6 Bibiliography………………………………………………………12

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Introduction:

The principle of easementary rights, which literally requires an owner of one property to share or
enjoy that is to grant or receive some kind of right from or to the owner of another property, is
very widespread in property-related functions. Easementary rights are sometimes referred to as a
privilege-deprivation arrangement since the owner of one property who grants the right must
suffer or refrain in order to favour the owner of another property. The existence of property-
related disputes is a far fetched concept since the origin of private property or ownership or the
very concept of property around the 17th and 18th century in England. Especially, when it comes to
property issues, it has much significance with the law guiding the same. Every time one thinks
about a property, one single idea that comes to mind is ‘rights’. As we live in civil society by way
of mutual co-existence, it is inevitable that the rights of one shall be shared with others at some
point of time as per convenience. In this case, whether the person who receives the right from
someone modifies the right or uses it in a manner that is contradictory to what the giver of the
right intended, it is essentially referred to as a breach of the easementary right that was granted to
him. There will be several arguments for considering the privilege to be abused, as well as several
excuses and solutions for doing so. In this study, the researchers will look at the underlying
elements of easementary rights, how they are broken in today’s land conflicts, and what legal
solutions are available.

Rights of easementry and it’s elements:

The need of the right of easement in a more immediate sense, Indian law defines an
easementary right as “a right which the owner or occupier of certain property owns, as such, for
the advantageous enjoyment of that land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or over, or in respect of, certain other land not his
own” in section 4 of the Indian Easement Act, 1882. Masters and heirs of dominant and servile
dynasties .The right of easement, according to Jurist John Salmond, is a lawful servient that may
be exerted on another piece of land for the gain of another piece of land. “Easement is such a non-
profit privilege that an occupant of ruling heritage enjoys from the owner of the land owing to
which the owner of that property cannot exercise his full rights or does little for the benefit of the
earlier occupiers,” is the idea of peacock. The dominant heritage is the property for the
advantageous enjoyment on which the privilege resides, and the dominant owner is the dominant

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owner; the servient heritage is the land on which the responsibility is levied, and the owner or
occupier is the servient owner.” Since the focus of this research paper is on abuses of easementary
rights, it is necessary to provide a clear understanding of how this philosophy originated, the need
for such procedure, and the basic elements of the easement theory in order to comprehend it. This
idea is thought to have originated as humanity began to form families, clans, settlements, and
other forms of social organisation (i.e., from the dawn of human civilization). When private land
ownership became popular, the idea developed that everyone should use their property in a way
that does not interfere with the rights of others. This concept developed into a system in which
one person’s right to his property does not intersect or interfere with another person’s right to his
property, such as not going through or spilling water on another person’s grounds. The definition
of easement or easementary rights is defined as the limitation of a right and the giving of that right
to another. Since the Limitation Act of 1871, which was later superseded by the Indian Easement
Act of 1882, India has had laws relating to easementary rights.

There are several factors that a right must fulfil in order to be called a right of easement (i.e. the
basic elements of easementary rights). The presence of at least two separate parties enjoying
possession over two main properties is the first and most important requirement for an easement.
These two properties are classified as dominant heritage and servient heritage, with the former
being the property that grants the right and the latter being the property that enjoys the right and is
liable for it. “In the case of Swamiyar Devsthanam vs Kanak Laxmi, the importance of two
distinct owners of two properties was upheld, and it was decided that an individual cannot have a
right of easement over his own land. [Andhra L.T. 483, Swamiyar Devsthanam vs Kanak Laxmi,
1975] This aspect is also referred to as “certain other land and not his own” in section 4 of the
Easement Act. The same theory was upheld in the case of Radhika Narayan vs. Chandra Devi
before the Delhi High Court.” One constant in the philosophy of easement is that the owner of the
dominant heritage would benefit from it, and by exercising it, he prevents or enables the owner of
another property to have control over his own. The court held in C. Mohammed vs Ananthachari
that for an easement to be legitimate, it must create beneficial enjoyment for the dominant
servient and the dominant owner’s entitlement to perform and continue to perform or prohibit and
continue to prohibit anything relating to the servient tenement. This is also known as the doctrine
of benefit e pendre, but it differs from easementary privileges in a few ways. In the case of
Chundee Churn Roy v. Shib Chunder Mundul, the court held that benefit- a- prendre refers to the
right to extract and use any fragment of soil that belongs to another individual, or any other item
that is attached to the soil or that is rising on the soil, with the aim of obtaining all income from

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the ground. [ILR 5 Cal 945, Chundee Churn Roy v. Shib Chunder Mundul, 1880]. The next
significant aspect of easementary rights is that an easement is simply a “right,” and the right’s
source material must be very precise, definite, and unambiguous. Furthermore, ownership is not
included in this right. The Allahabad High Court claimed in Mumtaj Ali v. Mohd. Sarif that the
plaintiff’s use of land for any reason, such as staying for a while, sleeping, or sitting there, would
equate to a right of easement entitled to be covered by law. These are the fundamental essential
elements for easement, as stated by the Kerala High Court in the case of Mohammed vs
Anantehari, who stated that the essential elements of easement include dominant and servitude
land, which is required.

 Separate personalities of the owner of the dominant and servitude owner.

 Right of the owner of the dominant property to do or not to do any act.
 Clarity and definite of easement.
 Accommodation of easement with the dominant property.

There are various forms of easements, such as positive, negative, public, private, easement of
necessity, continuous and non-continuous easement, and so on. To begin with, a positive
easement requires the dominant heritage owner to perform a specific act as part of his easementary
privilege, while a negative easement restricts or limits the right given to the servient owner to
perform a specific act. When it is continuous, it can be exercised only on the conduct of an act
done to exercise this right, such as the right to light. When it is discontinuous, this can only be
practiced on the conduct of an act done to exercise this right, like the right to way. The right of
easement out of necessity is one of the most essential aspects of the easementary. The judiciary
has interpreted this particular area of easement of need in many cases, several of which we will
look at now. This necessity easement is something without which touching or accessing one's own
property is difficult. For example, if a property adjacent to his won property is situated in such a
way that he cannot enjoy his own property without also enjoying an easementary right over other
segregated property, then an easement of necessity is granted. Section 13 of the Indian Easements
Act states that if an easement in the transferor's or testator's other immovable property is required
for the transferee or legatee to enjoy the subject of the transferor's bequest, the transferee or
legatee shall be entitled to such easement. In the same section, there are many other requirements
that satisfy the easement of necessity. In The State Of Gujarat vs Hiralal Motilal Luhar, the
Gujarat High Court held that "for easement of necessity, it is necessary that it first, fall within the
definition of "easement" under Section 4 of the Act." It would not be proper to consider whether it
is an easement of necessity or not unless it falls under this category and meets the conditions of
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easements, and when it falls within the definition of easement only, it would be good to consider
what kind of easement it is and if it is an easement of necessity or not.” In this case, the court's
view has gone to the basic issue of whether or not it is an easement before looking at the form of
easement involved (in this case, the easement of necessity). When it comes to making the burden
of necessity easier to bear, the Indian judiciary has established very strict and simple criteria for
necessity or essentiality through many judicial interpretations and landmark judgments. In the case
of Sukhdev vs Kedarnath, the Allahabad High Court held that "easement of necessity is such an
easement without which land cannot be used at all." As a result, it is an easement that is only
needed for the use of the property.” In Govind Bhatt v. Marumala Rama Bhatt, the court held that
"the conditions of easement of necessity are "highly essentialand it can be claimed only when it is
highly essential. Although whether an easement is a requirement easement or not is a matter of
fact.” Aside from that, Indian courts have developed a test for easement of necessity, which
quantifies the necessity's importance. The test is that an easement cannot be granted based on a
mere convenience or inconvenience in the property; rather, it must result from the cessation of
mutual possession that the dominant and the servient previously shared. The test here is that if the
easement is not granted, the property owner will be unable to enjoy his property in a reasonable
manner, and it will become an absolute necessity. Also, if there is an alternative way for the
reasonable enjoyment of the property, then too the right of easement of necessity loses its value .

Prescription, as mentioned in section 15 of the Indian Easement Act, is another method of obtaining
an easement. If a person enjoys some right unencumbered for a long time and then some building or
modification to the property interrupts that right, the person can get his right of easement for that
particular right by prescription. Section 15 mentions a significant period of time of 20 years. This
theory of easement by prescription arose out of a desire to give legal recognition to people's rights
and titles that they had enjoyed for a long time. The doctrine is clarified through judicial
interpretations at various levels and in various cases. In the case of Smt. Manikkam vs. Smt. Kamala,
the Kerala High Court held that if tree branches overhang neighboring land, no right can accrue over
the land over which they hand. Since the tree's branches extended over the neighbouring soil for an
extended period of time, the owner of such a tree acquires no rights over the property of the
neighborBy prescription, there is no right to maintain a nuisance. In the case of Puri Municipality vs
Sradhamani Devi, the Orissa High Court held that the municipality cannot assert an easement by
prescription over the suit land even if the land is used for sweepers passage by the municipality to
clean public latrines and there is no express order or consent from the owner of the private property.

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Thus, this definition has arisen in different judicial interpretations, and this is the essence and forms
of easementary rights
Breach of easementry rights:

All the right that the law is granted is only if it is violated as fundamental rights and the violation of
human rights.Similarly,the right of easement is also violated by multiple means.The right to the road
is the most common.The right can be of 2 ways,one is the public path that are the public roads that all
benefit and the other is the private form that varies in an individual or an owner of a tenement or
land.Availability can be granted,prescribed,need or private dedication .In the case of violation of
relief rights,sections 32 to 36 of the easementary act are;section 32 says that the residents of the
dominant assets have the right to enjoy their constant right without interference, and section 33 says
that a suit can be started on the violation of law.In general,the right to ways,the disturbances made on
the road or any type of obstacle are violated,which is also a nuisance. However,a right of way never
gives the right to experience or the dominant owner,or those who use the path under the grant to
exploit the country exclusively on which the path exists.Then,if the exclusive use of this country
gives,then not all obstacles when the path is an illegal interference, and there will be no measure,
unless there is no significant interference with relief.In this case,the effect of right of grant of way is
completely different from the eight of grant of soil of the way,and if it is the latter one,i.e;in case of
right of grant of soil of the way,the interference can only be considered a encroachment in a very
small way.However,this relationship between encroachment and interference cannot be generalized
because it differs in case to case.The legal question, regardless of whether a certain interruption of
the infringement of the aid law is subjected to the nature of law granted and also in the circumstances
of the particular case.The interference or disturbance of the right on the road alone is in such a way
that it makes it difficult for the course of the purpose for which it is granted, and only then is
considered to violate the person who is the right to relief or violation of the easementation rights. For
example, if the way it is so strongly blocked that it cannot forward or build a vehicle to hinder the
use,or the land is so that it cannot be used,like it’s being ploughed, then it leads to violation of
easementary right.The judicial interpretations were specific enough to each and every case and were
not based on general teachings.In the case of M.P.RAMACHANDRAN va Madathil Radha,the
respondent had not used the legal dispute,he bought a nearby property. The court wanted him to use
the road for a period of 20 years.He received the first appeals court and declared that the respondents
have established that they and their predecessors use the plaint B schedule continuously and
peacefully without interruption and as relief after more than 20 years.If the period of 20 years has to
be calculated from 1985,the period of 20 years would not have completed the day of institution of

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suit.There was no interruption of using the use of the appellant. If the respondents needed the way it
ran to their west of the house,which reaches the western road,continues,peaceful and without
interruption according to the right of easement, respondents are entitled to the right of law.Although
respondents are entitled to the easementary rights, they must exercise the right thing in the way it is
least in the plaintiff,the servient owner.The Court appoints a commission to the costs of the plaintiffs
to repair the aforementioned form of a certain part of servient heritage,which is least in the
plaintiff,and without combating the defendant.

Another significant aspect of easement is the right to light. It literally refers to the unhindered flow of
light, and this right forbids the owner of the adjoining property from erecting a structure or placing
something in his own group that would block the dominant heritage’s light. The right to light is an
example of a negative easement since it forbids the property owner from performing a certain action.

The defendants in the Madras High Court case of Moidin Kunhi Beavy And Anr. Vs K.
Gopalakrishna Mallya constructed a building to serve as a coffee hotel. This structure interfered with
the plaintiff’s wall and even obstructs the plaintiff’s access to light and fresh air. The defendant
claimed that the plaintiff had not obtained any right of easement over the light and air. As a result, the
court’s main legal argument was whether the plaintiff had a right of easement over light and air. The
court considered Peacock’s distinction between natural rights and prescriptive rights. Furthermore,
the court believed that the defendant had built on Porambokke Land and had no claim to the ground,
obstructing light and air. As a result, the court upheld the lower court’s decision to grant the plaintiff
an injunction for the breach of easementary rights. The law of light, as proposed by R. G. Nicholson
Combe, clearly distinguishes between easement to air and light. Combe’s idea demonstrates nothing
more than that, between two owners, a landowner has no natural right to the uninterrupted flow of air
unobstructed by his neighbor’s building, and that he cannot acquire a general right, but only a right to
the uninterrupted passage of air through a strictly defined channel, since otherwise a legal easement
would be too burdensome or indefinite to allow its revocation. When considering only the right to air,
a violation of the right to air cannot be considered actionable unless the intrusion is materially such
that the purity of the air is harmed, posing a hazard or danger to health. The Calcutta High Court has
ruled that obstructions not covered by the Easement Act must cause a disturbance to the building, or
make it unfit for ordinary purposes of habitation or industry. An industry that pollutes the air near a
home, for example, could be subject to an injunction

Judiciary approach in easementry:

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 When a right is abused, the law of the land provides a legal framework
for remedy. In this way, the Indian Easement Act contains the required legal provisions for
redress in cases of easement rights violations. Section 33 of the Indian Easements Act of 1883
allows the owner of a dominant heritage interest to file a suit to obtain an injunction if his right of
easement is materially disturbed in such a way that it prevents him from enjoying the
Easementary right given to him. Section 35 of the Easements Act states that an injunction can be
issued to restrain the disturbance of an easement with respect to sections 52 to 57 of the Specific
Relief Act as a general redressal procedure for the infringement of Easementary rights. Let's take
a look at this remedy approach using Ashdale Land and Property Company Limited v Maioriello,
an English case law. In this case, the defendant originally granted a right of way over a portion of
his entire property, which he later sold to someone else. However, what is particularly noteworthy
in this case is that the right of way was granted solely for agricultural purposes So, This act was in
violation of the easement right granted, and as a result, the defendant sought numerous
injunctions, including one banning vehicle movement, but they were all denied. The complainant
was so offended that he constructed a massive concrete wall to block the passage. This was a
violation of the easement since the right given was to drive through the road rather than to stand
on it. The applicant wanted a declaration that it had the right to block all road access to the
field..It claimed that the traditional remedy of injunctive relief had been sought and found to be
severely lacking because the court's orders had been consistently disobeyed, and that enforcing
the orders by criminal proceedings was impractical.

The gipsies argued that allowing the claimant to block all access to their property would be
completely disproportionate. This would make it impossible for them to use the field for
agriculture, and its value would plummet. The meaning of the easement is very significant here,
according to the court, because it is for the right of way for agricultural purposes, which is the
opposite of what the gipsies did. The gipsies had purchased the land for caravan purposes only,
and they had no intention of using it for agricultural purposes. As a result, the court ruled in the
claimant's favor and issued the requested declaration. The key takeaway from this case law is that
there is a distinct difference between proper and unreasonable use of the right of easement. When
the right of way is used for agricultural purposes, as the complainant suggests, it is reasonable to
consider it a proper use; but, when it is used for anything else, as it is in this case, it is excessive.
When unreasonable use is made, the court's first option is to issue an injunction; however, if an
injunction is not appropriate in the circumstances, the court can allow or grant a declaration
sanctioning measures to prevent any further use of the right.The appellant had a window from

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which light and air were coming into his house for years, according to the Gujarat High Court
case of Vaghela Vakhatsinh Agarsinh vs Parmar Lalji Khodidas. The plaintiff claimed in court
that the defendant's construction of a wall interfered with his right to air and light. The defendant
appealed to the Gujarat High Court after the lower court granted a mandatory injunction. The
main issue before the High Court was whether the property had suffered significant harm under
section 33 of the Easements Act's interpretation 1. As a result, the court ordered the lower court to
reconsider it. The court also overturned the mandatory injunction but upheld the plaintiffs' right to
compensation for the disruption of their right to air and light. As a result, the major amount, as
though there was serious harm in this situation. When judicial interpretations are followed, the
relief procedure for the deprivation of easementary rights and the injunction granted to the injury
bearer may be topic specific and based on the circumstances of the case. The rights to way, light,
and air are the most popular examples, which can be found in any home, industry, and other
settlement. However, since they are subjective and unique to the circumstances of each case, there
cannot be a single redressal hard and fast law of blatant relief for all cases; however, the judiciary
can offer justice to them by valid interpretation.

Conclusion:

As mentioned in the beginning, the researcher’s view implies that the concept of
easement in itself is very much entrenched in the mutual coexistence mechanism where one’s
rights interfere with others and where one share his right for the benefit and convenience of
others. Right to way can be very commonly seen in every family property if they interact and
study it from their parents from its implication in the properties they own. Easement by the
necessity which says that a person must grant the right to way to someone if there is no other way
to enjoy the right over his land is one of the best part of Easementary Rights I felt because this is
the essence of human co-existence where one shares his convenience with others for the benefit of
the other person’s convenience and this is mandated by section 13 of the Indian Easements Act,
1882. When it comes to relief, the researcher feels that the court should look whether the claim is
out of the urge to use merely the legal principle and get injunction or if there is a real and tangible
damage(as mentioned in section 33(a)) to the right enjoyed that the order of the court will be
really needful in the case. This can be found with much relevance under the context of right to air
in the contemporary times as pollution from vehicles and Industries exploit the human habitat and
the threat of climate change in recent times. The right to clean air is not just an easementary right
but also a constitutional mandate. The Supreme Court held that the right to life under Article 21 of
the Constitution is a fundamental right and includes the rights to free water and free air from

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pollution for the full enjoyment of life in the case of Subhash Kumar v. State of Bihar.1 So, the
researcher feels that the judiciary should keep in mind this constitutional mandate while dealing
cases related to right to air and be very vigorous in granting injunctions to the same times where
laws like the Environmental Impact Assessment, 2020 are being made. Finally, the researcher
would conclude by a point of fact that it is the collective duty of the lawmakers, judiciary and the
people of the country to make sure that easementary rights are not being violated, neither misused
but used in an appropriate manner in which the legislation in itself was intended to.

Bibiliography:

● Shubisahu, Easement by Prescription, Medium.com (2021),

https://medium.com/@shubhisahu1996/detail-of-easement-ec4c0fae84bd
(last visited Mar 22, 2021).
● Swamiyar Devsthanam vs Kanak Laxmi, 1975 Andhra L.T. 483
● Radhika Narayan VS. Chandra Devi, AIR 1981 Delhi 118
● C. Mohammed vs Ananthachari, AIR 1988 Ker 298
● Chundee Churn Roy v. Shib Chunder Mundul, (1880) ILR 5 Cal 945
● Mumtaj Ali v.  Mohd. Sarif, AIR 1973 All 98
● The State Of Gujarat vs Hiralal Motilal Luhar, (1980) 0 GLR 728
● Dhruvi Dharia, Easement by Prescription - Law Times Journal Law Times
Journal (2021), http://lawtimesjournal.in/easement-by-prescription/ (last
visited Mar 22, 2021).
● Smt. Manikkam vs Smt. Kamala, AIR 1987 Ker 72
● Ronilgoger, Violation of Easementary Rights, Legalservicesindia.com
(2021), http://www.legalservicesindia.com/article/1444/Violation-of-
Easementary-Rights.html (last visited Mar 22, 2021). Violation of
Easementary Rights, Legalservicesindia.com (2021),
http://www.legalservicesindia.com/article/1444/Violation-of-
Easementary-Rights.html (last visited Mar 22, 2021).
● M.P.Ramachandran vs Madathil Radha ,R.P.(C) No. 2487/2019
● Moidin Kunhi Beavy And Anr. vs K. Gopalakrishna Mallya, AIR 1953
Mad 849

1 Subhash Kumar v. State of Bihar 1991 AIR 420, 1991 SCR (1) 5. 

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● 2, R G Nicholson Combe, The Law of Light, 2nd edition, 1913

● Bansidhar And Anr. vs Matru Mal And Ors. , AIR 1959 Pat 517
● Ashdale Land and Property Company Limited v Maioriello, [2011]
EWCA Civ 1618
● Sarah Dawe, Easements - what remedies are available if an easement is
abused? | Lexology Lexology.com (2021),
https://www.lexology.com/library/detail.aspx?g=3bf8e2bb-2a6c-4e26-
8749-9ec4a95f3abe (last visited Mar 22, 2021).
● Subhash Kumar v. State of Bihar  1991 AIR 420, 1991 SCR (1) 5. 

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