LIMITATION ACT

PART 6
QUESTIONS
 1. State the period of limitation and when does
the time begin to run in any two of the following:
 a suit for arrears of rent
 suit by a mortgagee for foreclosure
 application for execution of decree

 2. Define easement.
 3. Easement (SN)
 4. Prescription (SN-2)

 5. Dilatory plea (CPC)

THE SCHEDULE (PERIODS OF
LIMITATION)
 FIRST DIVISION—SUITS (Art. 1 to 113)
 PART I—Suits relating to accounts
 PART II—Suits relating to contracts
 PART III—Suits relating to declarations
 PART IV—Suits relating to decrees and instruments
 PART V—Suits relating to immovable property
 PART VI—Suits relating to movable property
 PART VII—Suits relating to tort
 PART VIII—Suits relating to trusts and trust property
 PART IX—Suits relating to miscellaneous matters
 PART X—Suits for which there is no prescribed period
 SECOND DIVISION—APPEALS (Art. 114 to 117)

 THIRD DIVISION—APPLICATIONS
 PART I—Applications in specified cases (Art.
118-136)
 PART II— Other application (Art. 137)
FIRST DIVISION
 Description of suit
 Period of limitation
 Time from which period begins to run
ARTICLE 52
 Description of suit - A suit for arrears of rent
 Period of limitation - Three years
 Time from which period begins to run -
When the arrears become due.
ARTICLE 63
 Description of suit - suit by a mortgagee for
foreclosure
 Period of limitation - Thirty years
 Time from which period begins to run -
When the money secured by the mortgage
becomes due.
ARTICLE 135
 Description of application - For the
enforcement of a decree granting a
mandatory injunction.
 Period of limitation - Three years
 Time from which period begins to run - The
date of the decree or where a date is fixed
for performance, such date.
ARTICLE 136
 Description of application - For the execution of any
decree (other than a decree granting a mandatory
injunction) or order of any civil court.
 Period of limitation - Twelve years.
 Time from which period begins to run –
 When the decree or order becomes enforceable or
 where the decree or any subsequent order directs any
payment of money or the delivery of any property to be
made at a certain date or at recurring periods,
 when default in making the payment or delivery in respect
of which execution is sought, takes place:
 Provided that an application for the enforcement or
execution of a decree granting a perpetual injunction
shall not be subject to any period of limitation.
ACQUISITION OF
EASEMENT BY
PRESCRIPTION
(Section 25)
ACQUISITION OF EASEMENT BY
PRESCRIPTION (SECTION 25)
 (1) Where the access and use of light or air to and for any
building have been peaceably enjoyed therewith as an
easement, and as of right, without interruption, and for
twenty years, and where any way or watercourse or the use
of any water or any other easement (whether affirmative
or negative) has been peaceably and openly enjoyed by any
person claiming title thereto as an easement and as of right
without interruption and for twenty years, the right to such
access and use of light or air, way, watercourse, use of
water, or other easement shall be absolute and indefeasible.

 (2) Each of the said periods of twenty years shall be taken to

be a period ending within two years next before the
institution of the suit wherein the claim to which such period
relates is contested.
CONTD..
 (3) Where the property over which a right is claimed
under sub-section (1) belongs to the Government that
sub-section shall be read as if for the words “twenty
years” the words “thirty years” were substituted.

 Explanation — Nothing is an interruption within the

meaning of this section, unless where there is an
actual discontinuance of the possession or 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. 
EASEMENT – MEANING AND
DEFINITION
 According to section 2(f) of the Limitation Act, 1963
"easement" includes a right not arising from contract,
by which one person is entitled to remove and
appropriate for his own profit any part of the soil
belonging to another or anything grown in, or attached
to, or subsisting upon, the land of another.

 According to section 4 of the Easement Act, 1882

‘easement’ is a right which the owner or occupier of
certain land possesses, as such, for the beneficial
enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent
something being done, in or upon, or in respect of,
certain other land not his own."
 Easement includes the right to do or continue to
do something or to prevent or to continue to
prevent something in connection with or in
respect of some other land, which is not his
own, for the enjoyment of his own land.

 The owner or occupier referred to in the provision

is known as the Dominant Owner and the land for
the benefit of which the easementary right exists
is called Dominant Heritage.

 Whereas the owner upon whose land the liability is

imposed is known as the Serviant Owner and the
land on which such a liability is imposed to do or
prevent something, is known as the Servient
Heritage.
ILLUSTRATIONS
 ‘P’ being the owner of certain land or house
has a right of way over Q’s house, adjacent to
his house, to move  out of the street. This is
known as right of easement.

 X’s right to go on his neighbour Y’s household

for fetching water from the well for the
purpose of his own household  is a right of
easement. Here, the way to the well is
through Y’s land only. Hence, X has an
easementary right to pass through Y’s
household.
EASEMENT IS ACQUIRED BY
PRESCRIPTION.
 Prescription is the effect of the lapse of time in
creating and destroying rights.

 Prescription is the acquisition of title to land or to an

easement or an interest in land, by long user or
enjoyment against the will of the former owner, or in
disregard of any other claim of title.

 Title by prescription arises from a long continued and

uninterrupted possession of property but,
 neither by violence,
 nor by stealth,
 nor by leave asked from time to time.
EXAMPLES
 Where the roof of one person overhangs the land of
another for more than 30 years such enjoyment will vest
in the former a proprietary right in the space covered by
the overhanging roof. (Mohanlal v. Amratlal, 3 Bom.
174).

 A right to discharge rain-water flowing from the roof of

the plaintiffs house upon the roof of the defendant’s
house can be acquired by prescription. (Mohanlal v.
Amratlal, 3 Bom. 174).

 An easement of the supply of water from a natural

stream may be acquired by 20 years’ user under Section
25. (Abdul Rahman v. Muhammad Alam, 57 PR 1918).
SCOPE OF SECTION 25
 Section 25 of the Limitation Act, 1963 deals
with the law regarding mode of acquisition
of easmentary right by prescription as well
as the procedure of the computation of the
period prescribed under which the right
could be matured.

 But before we can go into understanding sec

25, we need to understand the meaning of
certain terms used in the section.
MEANING OF CERTAIN
EXPRESSIONS USED IN SECTION 25
 "peaceably": in order to establish a right of
easement, it is enough for the plaintiff to prove
that he has been exercising the right peaceably
and without any interruption, without express or
implied permission of the owner of the servient
tenement and without secrecy or stealth.

 The word "peaceably" means that the dominant

owner has neither been obliged to resort to
physical force himself at any time during the
period of enjoyment nor had he been prevented
by the use of physical force by the defendant in
his enjoyment of such right.
 The word ‘openly’ means that the
enjoyment has, from the very beginning,
been visible and manifest, not furtive or
secret.
 It must at least be shown that the servient
owner might be expected to have known of
the assertion of the right of easement on
the part of the dominant owner. 
 An ‘interruption’ within the meaning of the
Act is an actual discontinuance or cessation of
enjoyment of user by reason of an obstruction
submitted to or acquiesced in for a year, not
by the mere voluntary act of the claimant of
the right but in consequence of an obstructive
act done by a person other than the claimant.

 But if a cessation of user takes place due to

an accident or a voluntary act or omission of
the claimant himself, then it does not amount
to an interruption.
 The term ‘interruption’ in Section 25 is altogether
inapplicable to any voluntary discontinuance of the
user by the claimant himself. An interruption to be
effective must result in actual discontinuance of the
enjoyment of the right of the claimant.

 In Raghunath v. Madan Mohan, [(1973) 39 Cut.LT

1179], it has been held that there can be interruption
only if in execution the decree-holder takes possession
of the property thereby physically preventing the other
party from continuing in enjoyment of the right. Mere
protests do not amount to interruption. A right of
easement is not interrupted by mere verbal quarrels
or contentions.
 ‘as an easement’: the claimant must have enjoyed the
right as an easement.

 The term ‘as of right’ signifies enjoyment by a person in

the assertion of a right. The words ‘as of right’ connote
that the person claiming the right must have exercised it as
if he had been the true owner without permission or
licence from anyone.

 In Gangaram v. Tribeni Rai, (AIR 1973 All. 462), it has

been held that if the enjoyment has not been made
secretly or stealthily or by tacit sufficiency or by leave or
favour or licence, but has been made openly or notoriously
it would be an enjoyment as of right. The words “as of
right” denote that it is not enough that the right is merely
exercised but that it should be exercised consciously as
assertion of the right claimed. The phrase ‘as of right’
does not imply a right obtained by grant from the owner of
the servient tenement.
INGREDIENTS OF SECTION 25
 Sec 25(1) provides that where the access and
use of light or air to and for any building
have been—
 (1) peaceably enjoyed
 (2) as an easement,
 (3) and as of right,
 (4) without interruption, and
 (5) for 20 years (30 years in the case of
property belonging to the government), then
such right to such access and use of light or
air becomes absolute and indefeasible.
 Jotindra v. Probodh Kumar Dutta, (AIR
1932 Cal. 249), it has been held that if for
20 years light and air has come to the
plaintiffs building in a defined channel by
the same access, the conditions of the
section are fulfilled.
 Section 25(1) further provides that where any way or
watercourse or the use of any water or any other easement
(whether affirmative or negative), has been—
 (1) peaceably and openly enjoyed,
 (2) by any person claiming title thereto
 (3) as an easement,
 (4) and as of right,
 (5) without interruption,
 (6) for 20 years (30 years in the case of property belonging to
the government), then the right to use such way, water-
course, use of water or other easement becomes absolute and
indefeasible.
 In order to make such a right absolute and indefeasible, it is
necessary to establish that the access and use of
light/air/water had been enjoyed also as of right.
 Section 25(2)
 Each of the said periods of twenty years shall be taken
to be a period ending within two years next before the
institution of the suit wherein the claim to which such
period relates is contested.
 The limitation is two years from the date of obstruction.
 A right to easement is not indefeasibly established by
an enjoyment for less than 20 years. A title to
easement is not complete merely upon the effluxion
of 20 years and however long the period of enjoyment
may be, no indefeasible right can be acquired until
the right is brought in question in some suit, and until
so brought, the right is inchoate (unclear) only; and in
order to establish it when brought into question, the
enjoyment relied on must be an enjoyment for 20
years upto within two years of the institution of the
suit.
 In A. Sundar v. S.N. Jaiswal, (AIR 1988 Pat.
216), it has been held that in a suit for
removal of obstruction of the easement right,
the limitation is two years from the date of
obstruction otherwise the suit will be barred
by limitation. A claim for prescriptive right
would be defeated if the period of user had
terminated more than two years before the
filing of the suit. The period of 20 years or
more of enjoyment must end within two
years before the institution of the suit
otherwise the claimant cannot succeed.
 According to section 25(3)
 Where the property over which a right is
claimed under sub-section (1) belongs to the
Government that sub-section shall be read as
if for the words “twenty years” the words
“thirty years” were substituted.

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DILATORY PLEA – SHORT NOTE
 ‘Dilatory’ means tending to cause delay in judicial
proceedings.

 ‘Dilatory tactics’ are methods by which the rules of procedure

are used by a party to a lawsuit in an abusive manner to delay
the progress of the proceedings.

 For example
 When numerous pleas brought before a court for
postponement are baseless, time is wasted because the court
must stop the course of the ongoing proceedings to examine
whether there is any merit in the pleas made.
The party in whose interest the plea is made uses this tactic to
gain time to enhance his or her position or to postpone action
by the court as long as possible to minimise the impact of the
decree against him or her.
MEANING
 If the defendant's plea required the court to
decide some threshold question not related to the
merits of the plaintiff's case, it was called a
dilatory plea.

 It is any of the several types of defenses that could

be asserted against a plaintiff's cause of action,
delaying the time when the court would begin
consideration of the actual facts in the case. 

 It does not challenge the merits of a case but

seeks to delay or defeat the action on procedural
grounds.
 EXAMPLES
 A plea that the court has no jurisdiction to hear
the matter.
 A fatal flaw in the pleading.
 An issue as to standing of the other side.

 The purpose of a dilatory plea is not to force the

plaintiffs to preview their case on the merits but
to establish a reason why the merits should never
be reached.

**************