ASSIGNMENT

SUBJECT : PROPERTY LAW

TOPIC : EASEMENT , PRESCRIPTION AND LICENSE

Submitted by:
Name : Arsalan Khan
Roll no : 20
Department : law (LLB)
5st semester

Submitted to:
Ms. Masrat Rasool Mir
Faculty - Property Law
 EASEMENT

1) Introduction

Easements are a fundamental aspect of property law, providing rights to use another person's
land for specific purposes without owning it. The Indian Easements Act of 1882 codifies
these principles in India, defining the nature, creation, and regulation of easements, including
easements by prescription, and distinguishing them from licenses.

An easement is defined under Section 4 of the Indian Easements Act, 1882, as a right enjoyed
by the owner or occupier of certain land to do, or continue to do, something on the land of
another which, if not for such a right, would be unlawful. This can also include the right to
prevent the other property owner from doing something on their own land. Easements can be
either affirmative (allowing the holder to do something on the servient land) or negative
(restricting the servient landowner from doing something).

Examples of right of easement includes-

Right of way
Right to discharge rainwater
Right to sunlight etc.

2) Categories of Easements
1. Appurtenant Easements: These are attached to and benefit a particular piece of land (the
dominant tenement) and transfer with the property when it is sold. For example, an easement
allowing the owner of a piece of land to use a pathway on a neighbour’s land.

2. Easements in Gross: These are personal rights that benefit an individual or entity and do
not attach to any particular land. For example, the right granted to a utility company to lay
cables under another’s land.
 3) Creation of Easements

Under the Indian Easements Act, easements can be created in several ways:

1. By Grant: This involves a direct grant from one person to another, typically formalized in a
deed.

2. By Necessity: These easements arise when land is sold and the only access to it is through
the seller's remaining land, thereby necessitating an easement.

3. By Prescription: This involves acquiring an easement through long, uninterrupted use over
a statutory period. This is detailed further in Section 15 of the Indian Easements Act, 1882.

4. By Custom: Certain easements can be acquired by long-standing customs in a locality.

5. By Implication: These arise when there is a clear intention by the parties for an easement to
exist, although not explicitly stated.

4) Easement by Prescription

Easement by prescription is a process where a person acquires a right to use another's

property by continuous and uninterrupted use over a specific period, as defined under Section
15 of the Indian Easements Act, 1882. The statutory period required is 20 years for private
property and 30 years if the property belongs to the government.

To establish an easement by prescription, the following conditions must be met:

1. Continuous and Uninterrupted Use: The claimant must use the easement continuously and
without interruption for the statutory period. Temporary interruptions that do not significantly
impact the use do not reset the period.

2. Open and Notorious: The use must be apparent and known to the servient landowner,
giving them the opportunity to object.
3. Adverse to the Owner: The use must be without the permission of the servient landowner.
This adverse nature is crucial as it distinguishes prescriptive easements from those granted by
the owner.

4. Under a Claim of Right: The use must be done under a claim of right, meaning the
claimant believes they have a legitimate right to use the easement.

5) Legal Presumption and Evidence

Once the statutory period is completed, the law presumes that an easement by prescription
has been established, subject to evidence to the contrary. The burden of proof then shifts to
the servient owner to prove that the use was permissive or interrupted.

6) Termination of Easements

Easements can be terminated under various conditions, including:

1. By Release: The dominant owner may release the easement right in writing.

2. By Unity of Ownership: If the dominant and servient tenements come under a single
ownership, the easement is extinguished.
3. By Abandonment: If the easement is not used for a continuous period of 20 years, it may
be presumed abandoned under Section 47 of the Act.

4. By Expiration of Grant: Easements created for a specific period or purpose end when that
period or purpose expires.
5. By Extinction of Necessity: Easements by necessity terminate once the necessity ceases to
exist.

7) Licenses under the Indian Easements Act

A license, as defined in Section 52 of the Indian Easements Act, 1882, is a permission to do

something on another’s property which, without such permission, would be unlawful. Unlike
easements, licenses are revocable and do not create an interest in the property. They are mere
permissions and do not run with the land.

Characteristics of Licenses:

1. Revocable: Licenses can typically be revoked by the grantor at any time, unless coupled
with a grant or interest.

2. Non-Transferable: Licenses are personal to the licensee and cannot be transferred or

assigned.

3. No Interest in Property: Licenses do not confer any property rights to the licensee; they
merely permit an action that would otherwise be trespass.

4. Termination: Licenses terminate upon the death of the licensee or licensor, by expiration of
the term for which they were granted, or by revocation.

8) Essentials of licenses:

 It is a permission granted, i.e. a right arising out of permission.

 Legalises an act.
 Is revocable on the act of the grantor.
 It is always in respect of immovable property.
 It is a right in personam.
 9) Differences between Easements and Licenses

1. Nature of Right: Easements create an interest in the property, whereas licenses are
permissions without creating any property interest.

2. Transferability: Easements can transfer with the property, but licenses cannot be
transferred and are personal to the licensee.

3. Revocability: Licenses are generally revocable at will, whereas easements are not.

4. Permanence: Easements are often permanent and last as long as the dominant and servient
estates exist, while licenses are temporary and can be revoked or expire.

10) Case laws

1) The English Law acknowledged the right to commit annoyance as an easementary right
obtained by prescription in Bai Bhicaji v.Phirozshah, 40 Bom. 401, and the Bombay High
Court once more upheld this interpretation.

2) The Allahabad High Court later ruled in Bankeylal v. Kishanlal, AIR. 1967 ALL.43, that
spreading night soil on someone else's property is an illegal nuisance that cannot be acquired
as a matter of right through prescription.

3) In Hrudananda Biswal v. The Union of India (W.P.(C) NO. 6675 OF 2003), the
petitioner Hrudananda was denied access to a public road from his property by South Eastern
Railways, Kolkata, and as a result, he filed a writ petition in 2003. The court determined that
there was no denial of access to the indicated plot after hearing railways' explanation of a
potential security threat.

11) Conclusion

The Indian Easements Act, 1882, provides a comprehensive framework for understanding
and managing easements, including those acquired by prescription, and licenses. Easements
grant substantial rights and are integral to the practical use and enjoyment of property, while
licenses provide more flexible, revocable permissions. Understanding these concepts and
their distinctions is crucial for property owners, users, and legal professionals navigating
property rights in India. The Act ensures clarity and protection for both servient and
dominant owners, balancing individual property rights with the broader needs of society.
 12) References

Books:

 Lexisnexis's Property Law by Dr. Poonam Pradhan Saxena

 Lectures on Law of Property by Dr. Rega Surya Rao
 Property Law [ Transfer of Property Act ] by P. Jaganathan, J. Usha, et al.

Links:

1. http://theindianlawyer.in/statutesnbareacts/acts/i19.html

2. https://blog.ipleaders.in/an-overview-law-of-easements-in-india/

3. https://indiankanoon.org/doc/82950642/