SCHOOL OF EXCELLENCE IN LAW

ANALYSIS ON EASMENTRY RIGHTS

NAME : MANIBALAN.S

REG NO : H320068

COURSE :LLB(HONS.)

YEAR : III

SECTION : “B”

SUBJECT : ELECTIVE -II (PROPERTY LAW)

STUDENT’S SIGNATURE FACULTY SIGNATURE

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 TABLE OF CONTENTS

S.NO. CONTENT PAGE NO.

1. ABSTRACT 4

2. INTRODUCTION 4

3. CONCEPT OF EASMENT 5

4. REQUIREMNTS OF A VALID EASEMENT 7

5. TYPES OF EASEMENT 7

6. CREATION OF EASEMENT 8

7. MODES OF AQUISITION OF EASEMENT 10

8. NATURE AND DURATION OF 12

EASEMENT

9. TERMINATION, SUSPENSION AND REVIVAL OF 13

EASEMENTS

10. SECTION 2 OF INDIAN EASEMENTS 16

ACT v. RIGHTS OF
RIPARIAN
11. RIGHT OF THE GOVERNMENT TO REGULATE 17
THE FLOW OF WATER:

12. CONCLUSION 44

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 CASE LAWS:

S.NO TOPIC PAGE

NO

1. Ayyaswami Gounder and Ors. vs. Munnuswamy 19

Gounder and Ors. (25.09.1984 - SC): SC/0226/1984

2.  Ambaram Popat Vankar vs. Budhalal Mahasukram Shah 20

(15.01.1943 - BOMHC): MH/0129/1943

3. Luhar Tulsidas Narsibhai vs. Vrajlal Lalji Vaghela 21

(14.08.2006 - GUJHC): GJ/8357/2006

4. Joy Auto Works and Ors. vs. Sumer Builders (P) Ltd. 22
and Ors. (02.04.2009 - SC): SC/0520/2009

5. Anguri and Ors. vs. Jiwan Dass and Ors. (30.08.1988 - 23

SC): SC/0445/1988

6.  L. Damodaraswami Naidu vs. S.T. Damodaraswami 25

Naidu (24.09.1964 - MADHC): TN/0133/1964

7. Bhim Singh and Ors. vs. Bakhtawar Lal and Ors. 27

(10.03.1993 - RAJHC): RH/0424/1993

8. Yosef David Varulekar vs. Moses Solomon Talkar 29

(18.02.1931 - BOMHC): MH/0063/1931

9.  Chanti China Venkatareddi vs. Kurasani Koti Reddy and 30

Ors. (22.12.1965 - APHC): AP/0103/1967

10. Yosef David Varulekar vs. Moses Solomon Talkar 31

(18.02.1931 - BOMHC): MH/0063/1931

11. T.R. Bhushnam vs. C. Umapathi Mudaliar and Ors. 33

(17.04.1935 - MADHC): TN/0454/1935

12.  Krushna Kishore Bal vs. Sankarsan Samal and Ors. 34

(28.11.1973 - ORIHC): OR/0027/1974

13.  S. Kumar and Ors. vs. S. Ramalingam (16.07.2019 - 35

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 SC): SC/0913/2019

14. Chotey and Ors. vs. Dal Chand and Ors. (05.07.1929 - 36
ALLHC): UP/0513/1929

15.  Lakhmichand Khetsey Punja vs. Ratanbai (11.10.1926 - 37

BOMHC): MANU/MH/0134/1926

16. B.K.N. Narayana Pillai vs. P. Pillai and Ors. (13.12.1999 38

- SC): SC/0775/1999

17. Janardan Mahadeo Bhase vs. Ramchandra Mahadeo 39

Bhase (05.10.1926 - BOMHC): MH/0175/1926

18. Surjit Kaur vs. Balwinder Kaur (07.09.2005 - PHHC): 40

PH/0492/2005

19. B. Balathamburaj and Ors. vs. Commissioner, Madurai 41

Corporation, Madurai and Ors. (09.12.2011 - MADHC):
TN/5220/2011

DECLARATION
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I Manibalan.s (H320068) hereby do declare that the Assignment
Report entitled on "Analysis on easmentry Right" of the Internal process of the
Semester Examination, is a bonafide done by me and to assure that the
same will not be submitted for any other internal process of this
Semester Examination.

Date : 25.06.2023 Signature of manibalan.s(H320068)

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 ABSTRACT:

The evolution of civilization had begun when people started living in groups, in

realization of the each individuals’ private rights with mutual benefits within the society.

Hence, the right of easement dates back to the period of recognition of private property in

a well- established society. Such a right, arises out of certain aspects of morality, which

allows a third person to enjoy certain benefits in relation to the property, on which he has,

neither ownership nor possession. With progress in the society, the legislation has given

deference to the easement rights, which makes it necessary for us to have a line of thinking

on it. This paper revolves around the doctrine of easement and the essential conditions ,

process of acquisition and process of termination, suspension and revival of easement and

attempts to answer the question as to whether the Indian easements act is complete in itself

or not and whether Section 2 of the said act conflicts with doctrine of easement with

reference to rights of a riparian.

INTRODUCTION :

An easement is a right permitted by law to occupy or use another person’s land for a particular purpose. The

use of the land here is limited, and the original owner retains lawful title of the land. A legally binding

easement ought to be in writing, the exact location is stipulated in the property’s deed. Easements

commonly provides utility companies access for the purpose of installing and maintaining power, phone,

and cable lines, as well as for water drainage purposes .i

(i) Easement, Legal dictionary https://legaldictionary.net/easement/.

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 The term easement is derived from the Latin word

‘aisementum’ which means comfort, convenience or privilege, and later on developed into a legal right or

privilege of using something not one's own. The concept of easement can be traced to antiquity and it is said

that is meant is as old as the concept of property itself .the earliest reference of easement could be found in

Halhed Gentoo code which is a compilation of ancient Hindu law which was and force during the period

1773-1775 under the directions of Warren Hastings. The term easement is nowhere defined Hindi English

law. Lord Esher in Metropolitan Railway v.Fowler ii define easement as “some right which a person has

over land which is not his own”.iii In the words of a well renounced jurist Salmond, easement is a legal

servient which can be exercised on some other piece of land specifically for the beneficial enjoyment of

one’s own land. Right of easement is a form of privilege, the integral part of this privilege is to do an act or
prevent certain acts on some other land for enjoyment of one’s own land.iv

CONCEPT OF EASEMENT :

Easement is a right, which the owner or occupier of certain land possesses as such, for the beneficial

enjoyment of that land to perform and continue to perform something, or to avert and continue to avert

something being done, in or upon, or in respect of, certain other land which is not his own. The land for the

beneficial enjoyment of which the right exists is known as the dominant heritage and the owner or occupier

of such land is called the dominant owner. The piece of land on which the liability is trusted upon is called

the servient heritage and the owner or occupier of such land is called the servient owner.

(ii) Metropolitan Railway v. Fowler, 1 Q.B. 165, (EWCA.

(iii) Karthik Shiva, Law of Easements: A Brief Overview of the Indian Easements Act, 1882, Academia
https://www.academia.edu/23567468/Law_of_Easements_A_Brief_Overview_of_the_India _Easements_Act_ 1882.
(iv) Diva Rai, An Overview: Law of Easements in India, Ipleaders

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 The concept of

easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions

of section, an easement right is a right possessed by the owner or occupier of the land on some other land,

not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is granted

because without the existence of this right an occupier or owner cannot fully enjoy his own property. It

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 word ‘land’ refers to everything permanently attached to the earth and the words ‘beneficial enjoyment’

denotes convenience, advantage or any amenity or any necessity. The occupier or the owner 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 Servient Owner and the land on which such a liability is imposed to do or prevent something, is known
as the Servient Heritage.v

Illustrations-

1. ‘A’ being the owner of certain land or house has a right of way over B’s house, adjacent to his house, to

move out of the street. This is known as right of easement.

2. Q’s right to go on his neighbor R’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 R’s land only. Hence, Q has an

easementary right to pass through R’s household.

(v) Rai, supra note 4.

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REQUIREMNTS OF A VALID EASEMENT :

The essential features of an easement, in the strict sense of the doctrine, are as follows: (a) It is an

incorporeal right; a right to the utilize and enjoyment of land not to the land itself; (b) it is trusted upon

corporeal property; (c) it demands for its constitution two distinct tenements the “dominant tenement” which

enjoys the right, and the “servient tenement” which submits to it.

The characteristics that are required for the validity of an easement has been laid down by the court in Re

Ellenborough Parkvi. The Court of Appeal had to decide the status with respect to a right for residents to use

a garden in the middle of a square around which their houses were built.vii

TYPES OF EASEMENT :

There are four different types of easement Section 5 of Indian Easement Act explain the various types of

easement. It provides that the easements are either discontinuous or continuous, apparent or non-apparent.

A) Continuous Easement -A continuous easement is one whose enjoyment is, or may be, continual without

the act of a human being. Illustration -A right annexed to Y’s house to receive light by the windows

without obstruction by his neighbor X. This is a continuous easement. X continuous easement is

extinguished when it is totally cease to be enjoyed as such for an unbroken period of 20 years.

B) Discontinuous easement - A discontinuous easement is one that needs the act of human being for its

enjoyment. Illustration - A right of way annexed to Q’s house over R’s land. This is a discontinuous

easement.

(vi) Re Ellenborough Park, 1 Ch 131 (EWCA: 1955).

(vii) Shiva, supra note 3.

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C) Apparent easement - An apparent easement is that type of easement which is shown by some permanent

sign which, upon careful inspection by a competent person, would be visible to him. Illustration- Rights

annexed to L's land to lead water thither across M's land by an aqueduct and to draw off water thence by a

drain. The drain would be found upon careful inspection by a person conversant with such matters. This is

called as apparent easements.

D) Non-apparent easement - A non-apparent easement is the one that has no

such sign. Illustration -A right annexed to Y's house to prevent Z from building on his own land. This is a

non-apparent easement.viii

CREATION OF EASEMENT :

Easements are usually created by conveyance in a deed, or some other written document such as a will or

contract. Creation an easement demands for the same formalities as the transferring or creating of other I

nterests in land do, which typically are: a signature, a written instrument, and proper delivery of the

document. In limited circumstances, the court would create an easement by implying its existence based on

the circumstances.ix Two familiar easements created by implication are easements of necessity and

easements implied from quasi-easements. Easements of necessity is typically implied to provide access to a

landlocked fragment of property. Easements implied from quasi-easements are based on a landowner's prior

utilization of part of his property for the benefit of another portion of his land.

(viii) Meaning and Types of Easement, SRD Law Notes

(ix) Easement basics, Find Law realestate.findlaw.com/land-use laws/easement- basics.html.

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Other methods of establishing

easements are prescriptive use (the routine, adverse use of another's land), estoppel, custom, public trust,

and condemnation. x For example, A sells his land to B and by the same deed he may grant a right of way to

B for such land for another land of his. Grant is provided by an agreement executed by the grantor in favour

of the grantee for specific consideration. The grant comes into effect when the grantee has the right to enter

upon the grantor’s land. Easement by virtue of custom is nothing but a legal right which is acquired by the

operation of law through continuous use of a land .

over a long period of time. Henceforth the right of way continues to exist by prescription, grant or by virtue

of custom. Easements, which are the subject matters of agreement between the two parties, are for right way

right to air and light. Surrendering an easement right does not refer to transfer of property. Easement can be

made, altered and even released. Easement right cannot be created or altered orally. It must be in a written

format. However, easements by prescription and custom not necessarily be in writing. A deed of grant must

clearly mention the purpose of which easement is granted. By the deed of grant the subservient owner hands

over free and full right to the dominant owner and also his successors a passage wide enough for movement

of people or vehicles between the dominant owner's premises and the public road against a price

consideration. In the case of Moody v. Stegglesxi the grant of a right to put up a signboard to the adjoining

property advertising the public house which constituted the dominant tenement was held to comprise an

easement.xii

(x) Id.,
(xi) Moody v. Steggles, 12 Ch D261 (EWCA: 1879).
(xii) Shiva, supra note 3, at 7.
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MODES OF AQUISITION OF EASEMENT :

Express Grant: One of the most direct method of creating an easement is by Express grant. Express

easements are created by means of a written agreement between the landowners grant in for receiving an

easement. An Express easement is created by either a deed or by will. Therefore, it must be in writing.

Express easement ought to be signed by both the parties and are recorded with the deeds to each other. An

Express easement can also be created by the owner of a certain piece of property when he conveys the land

to another but reserves or saves and easement in it. This arrangement is known as easement by reservation. •

Implied Circumstancesxiii: Easementary right can be acquired under implied circumstances in the following

ways-

➢ Easement of Necessity: Section 13xiv of the act deals with easement of necessity. This specifically deals

with the circumstances where the owner or occupier is not privileged to use his property without exercising

the right of easement over the servient heritage. Thus, absolute necessity is considered to be the test and the

convenience.

For example– A sells his land to B for agricultural purpose. Here, B cannot access his land without passing

through C’s land (his neighbor). Thus, this is an easement of necessity

(xiii) Rai, supra note 4.

(xiv) Indian Easement Act, 1882, §13.
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➢ Quasi Easements: In the case of a person transferring his property to another person thenIf an easement is

continuous, apparent and necessary to enjoy, then in such a case the transferee shall be entitled to it, ▪ If

such an easement is continuous, apparent and necessary to enjoy the said property, the transferor has a right

to such easement over property transferred by him ▪ In case of partition of the property of the joint family,

if an easement is continuous, apparent and necessary to enjoy the share of one coparcener over the other

coparcener, then he is entitled to such a right of easement.xv

Easements are quasi as those arise out of circumstances, that is, when common properties are converted into

tenements by means of sale, mortgage, partition or through any other form of transfer. In such of a case,

there is an implied grant of right of easement. For example– A’s right attached to B’s house to receive air

and light through a window without any obstruction by his neighbor.

➢ Prescriptive Easements: Section 15xviprovides for this type. Following are the requisites- • Right must

be definite and certain, • Right must have been independently enjoyed without any agreement with the

servient owner, • Must be enjoyed openly, peacefully and as of a right without any interruption for a

continuous period of 20 years and in respect of any government land the period of noninterruption shall

be 30 years.xvii

➢ Customary Easements An easement right can be acquired by virtue of a local custom. This is known as

Customary easements. Section 18xviii of the Act provides for it. For example- people living in a

particular town or city having a right to bury the dead in a particular area or riparian right to use water.xix

(xv) Rai, supra note 4.

(xvi) Indian Easement Act, 1882, §15.
(xvii) Rai, supra note 4.
(xviii) Indian Easement Act, 1882, §18.
(xix) Rai, supra note 4.
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 NATURE AND DURATION OF EASEMENT :

According to Section 6xx of the Easements Act, 1882, “An easement may be permanent, or for a term of

years or other limited period, or subject to periodical interruption, or exercisable only at a certain place, or

at certain times, or between certain hours, or for a particular purpose, or on condition that it shall

commerce or become void or voidable on the happening of a specified event or the performance or non-

performance of a specified Act.” The nature of easements is described under Section 7 of the Act, 1882

which states that easements are restrictions of one or the other of the following rights, namely: (a)

Exclusive right to enjoy - The exclusive right of every owner of immovable property (subject to any law

for the time being in force) to enjoy and dispose of the same and all products thereof and accessions

thereto.xxi (b) Rights to advantages arising from situation the right of every owner of immovable

property (subject to any law for the time being in force) to enjoy without disturbance by another the

natural advantages arising from its situation.xxii the same and all products

thereof and accessions thereto.xxi (b) Rights to advantages arising from situation the right of every owner

of immovable property (subject to any law for the time being in force) to enjoy without disturbance by

another the natural advantages arising from its situation.xxii

(xx) Indian Easement Act, 1882, §6.

(xxi) Shiva, supra note 3.
(xxii) Shiva, supra note 3.
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 TERMINATION, SUSPENSION AND REVIVAL OF EASEMENTS :

Usually, mere non- use of property does not end an easement. One or more of the following factors might

also have to be present. Extinction by dissolution of right of servient owner: When, due to a cause which

preceded the imposition of an easement, the person by whom it was imposed discontinues to have rights

on the servient heritage, the easement considered to be extinguished. For example, X transfers Sultanpur

to Y on condition that he does not marry Z, Y impress an easement on Sultanpur. Then Y marries Z, Y’s

interest in Sultanpur ends, and with it the easement is extinguished. Agreement to terminate by grantor

and the grantee of the easement: An easement is considered to be extinguished when the dominant owner

releases it, either expressly or impliedly, to the servient owner. Such release can only be made in the

circumstances and to the extent in, and to which the dominant owner can alienate the dominant heritage.

An easement may be released only of the servient heritage. Likewise, as per section 39xxiii of the Indian

Easements Act, 1870 an easement is terminated when the servient owner, in exercise of power reserved in

this behalf, revokes the easement. Expiration of the time allowed for the easement: An easement is

terminated where it has been imposed for a limited period of time, or acquired on condition that it shall

become void on the performance or non-performance of a specific act, and the period either expires or the

condition is fulfilled. Abandonment or expressed intent to discontinue use of the easement: A continuous

easement or a discontinuous easement is extinguished when it completely ceases to be enjoyed as such

for an unbroken period of about twenty years. With respect to a continuous easement, from the very day

of its enjoyment, was obstructed by the servient owner or rendered not possible by the dominant owner;

and, in the case of a discontinuous easement, from the day on which it was last enjoyed by the person as a

dominant owner.

(xxiii) Indian Easement Act, 1882, §39.

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Merger where one person buys both dominant and servient tenement: An easement is extinguished when the same

person becomes entitled to the absolute ownership of the whole of the dominant as well as servient heritages. For

example, X, as the owner of a house, has a right of way over Y’s field. X mortgages his house, and Y mortgages his

field to Z. Then Z forecloses both mortgages and becomes thereby absolute owner of both house and field. The

right of way is extinguished.

Extinction by end of necessity in case of easement by necessity: An easement of necessity is extinguished when the

necessity ceases. For example, X grant Y a field inaccessible except by passing over X’s adjoining land, Y

afterwards purchases a part of that land over which he can pass to his field. The right of way over X’s land which Y

has acquired is extinguished. Extinction by Destruction of Subject Matter: An easement is extinguished when either

the dominant or the servient heritage is totally destroyed. For example, P has a right of way over a road running

along the foot of a sea cliff. The road is washed away by a permanent encroachment of the sea. P’s easement is

extinguished. Suspension of Easement: An easement is suspended when the dominant owner becomes entitled to

possession of the servient heritage for a limited interest or when the servient owner becomes entitled to possession

of the dominant heritage for a limited interest. For example: X has a right of way of Y’s land obtains for lease his

land, the easementary right of way is suspended during this period. Revival of Easements: An easement

extinguished under Section 45 revives when the destroyed heritage is, before the completion of twenty years has

expired, restored by the deposit of alluvion or, when the destroyed heritage is a servant building and before twenty

years have expired such building is rebuilt on the same site, and when the destroyed heritage is a dominate building

and before the twenty years have expired such building is rebuilt on the same site and in such a manner as not to
impose burden on the servant heritage. An easement extinguished under Section 46 is revived when the grant or

bequest by which the unity of ownership was produced, is set aside by the decree of a competent Court of law.

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necessary easement extinguished under the same section is revived when the unity of ownership ceases due to any

other cause. A suspended easement is revived if the cause of Suspension is removed before the right is extinguished

under Section 47xxiv .

SECTION 2 OF INDIAN EASEMENTS ACT v. RIGHTS OF RIPARIAN :

Indian Easement Act 1882 is a Complete Code in itself in the territories to which this Act applies. Act define and

regulate the easement rights in all aspects so that everyone enjoys common easementory rights and there should be

least controversy in this regard. Though the Act is complete in itself yet it is not exhaustive. It is supplemented by

following:

(A) Transfer of Property Act 1872 - regarding transfer of easements

(B) Criminal procedure Code regarding procedure in disputes concerning easements.

(C) Limitation Act 1908, regarding right of easement by prescription under Section 25 of the Act. The Act is a

Complete and self-contained code on the subject of easement. It was also observed that where the Act is not in

force, principles of English law as embodying the principles of equity, justice and good conscience are to be

appliedxxv . In India, water law or the following doctrines fall within the purview of the Indian Easements Act of

1882. In the Indian Constitution, water is in the state list as Entry 17 subject to the provisions of Entry 56 of List I

i. e., Union list. Under the Easements Act, the rights of a riparian i.e. a person who owns the land adjoining a river

or a water stream is recognized by this right. A riparian owner is vested with the right to use water stream which

flows through his land equally with other riparian owners. A riparian shall also incur the right to utilize the water

which would come to him undiminished in flow, quantity, quality and to go beyond his land without any

obstruction. Section 7 of the Act renders that every riparian owner has the right to continued flow of waters of a

natural stream without any destruction or unreasonable pollution.xxvi

(xxiv) Shiva, supra note 3.

(xxv) AIR Lahore 417, 418 (Pun HC: 1944).
(xvi) Ruchi Pant, From Communities’ Hands to MNCs’ BOOTs: A Case Study from India on Right to Water, Rights and Humanity,
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It would be pertinent to note that The

Easement’s Act of 1882 recognizes the customary rights of riparian that are acquired under two basic rules.
They are:

1. Long usage or prescription

2. Local custom However, these rights are also not absolute. It does not provide a completely independent and

absolute right that is enjoyable without any external interference. To be more precise it could be noted that these

rights are subject to the Government’s right to regulate the collection, the distribution and the retention of the

waters of rivers and streams flowing in natural channels.xxvii

RIGHT OF THE GOVERNMENT TO REGULATE THE FLOW OF WATER:

Section 2(a)xxviii provides that the Indian Easements Act will not affect any right of the Government to regulate

the collection, retention and distribution of the water of rivers and streams flowing, in natural channels, and of

natural lakes and ponds, or of the water flowing collected, retained or distributed in or by any channel or other work

constructed at the public expense for irrigation. Put differently, this section saves from the operation of the Act

rights of the Government to regulates, collect and distribute water in natural and artificial water courses, ponds,

rivers and lakes. The Government may distribute water and also maintain and conserve it for public good wherever

necessary. It may construct works of irrigation and also maintenances of old ones according to the needs and

circumstances of the country.

In a leading case, “it was observed that the overriding powers of States to regulate streams and rivers are not taken

away by this Act, however the State while regulating the water source cannot defeat customary supply of water

based on either prescription or natural right. So, regulation and distribution of water is sovereign power of State.

Any question under Easement Act, if arises has to be examined on collection of evidence and investigation of facts

and conclusion drawn thereon with reference to the factual matrix and which can only be decided in a suit and not

by writ petition.”xxix
(xxvii) Annie Mampily, Riparian rights in India,
(xxviii) The Indian Easements Act, 1882, https://indiankanoon.org/doc/82950642/.
(xxix) Afaque Ahmad, The Indian Easements Act 1882, Academia
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Therefore, we can conclude that Section 2xxx of Indian Easements Act, which empowers the

government with the power to regulate the flow of water in natural or artificial stream acts as an exception to the

general rule of easementary rights, or specifically, riparian rights under easementary rights and therefore cannot be

challenged for invalidity or unconstitutionality.

CASE LAWS:

1.
Subject Matter : THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS

Relevant Section : Section 8: An easement may be imposed by any one in the circumstances, and to the extent, in
and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Key Issue : Whether High Court was correct holding that appellants-plaintiffs did not acquire any right either by
grant or by prescription by way of easement?

Citation Details : Ayyaswami Gounder and Ors. vs. Munnuswamy Gounder and Ors. (25.09.1984 - SC):
MANU/SC/0226/1984

Summary Judgment :

Facts: The parties are descendants from a common ancestor and they owned joint properties. A partition took place
between the parties where under survey Nos. 95 and 96 fell to the share of the plaintiffs and 15 cents of land in plot
where the common well is situated and the channel running from that common well were, however, kept joint for
the common enjoyment of the parties. The defendants objected to the use of the common land and the common
channel for taking water from their exclusive well. Hence the plaintiffs filed the suit. The trial court by its judgment
found that the plaintiffs being co-owners of the common property were entitled to use the property in the way most
advantageous to them and the defendants having not pleaded or proved any damage or loss to the common property
cannot obstruct the plaintiffs from taking water to their lands from their exclusive well through the common
channel. On the first appeal by the defendants , with the little modification the first Appellate Court confirmed the
decree of the trial court. The defendants feeling aggrieved took up the matter in second appeal and the High Court
reversed the judgments and decrees of the two courts below and dismissed the suit holding that the plaintiffs did not
acquire any right either by grant or by prescription by way of easement. The plaintiffs-appellants have now
approached this Court.

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Held: In absence of any specific pleading regarding detriment to respondents-defendants, appellants-plaintiffs have
every right to use common land and common channel. Appellants were claiming their right on basis of admitted co-
ownership rights which includes unrestricted user, unlimited in point of disposition, and High Court was not
justified in holding that appellants' right to take water was not acquired by any grant from respondents or from any
other sale deed. Right of co-ownership presupposes a bundle of rights which has been lost sight of by High Court.
Appellants claim easementary right only as an alternative ground but main ground on which they based their claim
is on right of co-ownership. In these days of scarcity when every effort is being made at all levels to increase
agricultural production to country's teeming millions it would not be desirable to allow respondents to create any
hurdle in irrigation of appellants' plots through common channel from their exclusive well. Thus, neither law nor
expediency warrants a conclusion as desired by respondents.
2.
Subject Matter : THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS

Relevant Section : Section 12: An easement may be acquired by the owner of the immovable property for the
beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
One of two or more co-owners of immovable property may, as such, with or without the consent of the other or
others, acquire an easement for the beneficial enjoyment of such property.
No lessee of immovable properly can acquire, for the beneficial enjoyment of other immovable property of his own,
an easement in or over the property comprised in his lease.

Key Issue : Whether under the Indian Easement Act a lessee can acquire a right to light over adjoining property
which belongs to his landlord?

Citation Details : Ambaram Popat Vankar vs. Budhalal Mahasukram Shah (15.01.1943 - BOMHC):
MANU/MH/0129/1943

Summary Judgment :

Facts: The plaintiff possessed a lease of land on which he erected a building, which building had windows
overlooking the adjoining land which belonged to the plaintiff's lessor. There was a division of the freehold interest,
the freehold of the land leased to the plaintiff going to the sons of the former owner, and the freehold of the alleged
servient tenement, to his grandsons. The plaintiff acquired the freehold of the property on which he held the lease,

20
and the defendant acquired the adjoining land, that is to say, the alleged servient tenement." This suit was filed.

It is, therefore, clear that the plaintiff cannot prove twenty years' enjoyment of light and air through his
windowwithout including part of the period when the alleged servient tenement belonged to his landlord.
Held: An easement of light, like any other easement, must be acquired, under Section 12, by the owner, or on his
behalf, by the person in] possession. Therefore, if the lessee acquires a right to light, he acquires it on behalf of the
owner which means the absolute owner, and he cannot acquire it on behalf of the owner as against such owner, A
man cannot acquire an easement as against himself. In present case, a lessee cannot acquire by prescription a right
to light over adjoining property which belongs to his landlord.
3.
Subject Matter : THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS

Relevant Section : Section 15: Where the access and use of light or air to and for any building have been
peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person's land or things affixed thereto, has been peaceably received by another person's
land, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement 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, support, or other easement, shall be absolute.

Key Issue : Whether Section 15 of the Act applies to the present case?

Citation Details : Luhar Tulsidas Narsibhai vs. Vrajlal Lalji Vaghela (14.08.2006 -
GUJHC): MANU/GJ/8357/2006

Summary Judgment :

Facts: Certain properties belonged to Ranchhodbhai, which were succeeded by his two sons, namely, Laxman
Ranchhod and Tulsidas Ranchhod. The said two brothers agreed to partition the properties and since after the
partition enjoyed as the absolute owners without any interference by the other party. The property of Laxman
Ranchhod was sold to Kurgi Jina, who, in his turn, sold the property in favour of the present plaintiff - Vrajlal in
1976. As the present defendant, Tulsidas, started erecting a wall adjoining the wall of the plaintiff, the plaintiff filed
the suit seeking injunction against the defendant-Tulsidas that he be restrained from raising the wall, as the plaintiff
has perfected his easementary right to get light and air. It was submitted that conditions, as provided under Section

21
15, read with Section 35, of the Indian Easement Act, 1882 have not been fully satisfied and that the right enjoyed
by the plaintiff's predecessor in title was a permissive right, the present plaintiff would not be entitled to claim the
easementary rights. Trial Court held the evidence as inadmissible and as Laxman and since thereafter the
predecessors were exercising their easementary right over the servient heritage belonging to Tulsidas and as the
right has perfected by lapse of time, the defendant cannot raise the wall. The dissatisfied defendant preferred an
appeal, who, being unsuccessful before the first Appellate Court, is before this Court.
Held: Once it is held that the document of 1946 (Exh.58) is inadmissible in evidence, then, the very first condition
of Section 15 of the Easement Act would stand proved because right from 1946, the access and use of light or air to
and for any building have been peaceably enjoyed therewith by Laxman at least for a period of twenty six years.
The right was uninterrupted and was within the knowledge of the servient heritage. It is settled law that when a
property is sold, it passes to the purchaser with all the rights and obligations. If the plaintiff has purchased the
property with all the rights and obligations, then, the right of easement would also stand transferred in his favour
and he would be entitled to tack the right of easement in retrospection right from 1946 to 1976, that is, for a period
of thirty years.
4.
Subject Matter : THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS

Relevant Section : Section 19: Where the dominant heritage is transferred or devolves, by act of parties or by
operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the
easement to the person in whose favour the transfer or devolution takes place.

Key Issue : Whether Appellate Court was right in holding out the access on foot and no motorable access to
Appellant through plot of R-1?

Citation Details : Joy Auto Works and Ors. vs. Sumer Builders (P) Ltd. and Ors. (02.04.2009 -
SC): MANU/SC/0520/2009

Summary Judgment :

Facts: Appellant was running motor garage on suit plot for which she had motorable access only through plot of,
R-1., who constructed gate on his plot which obstruct the way approaching Appellant's plot. Appellant opposed the
same and filed suit for injunction to restrain R-1 from constructing or placing any gates upon way of Appellants.
Trial Court initially granted interim injunction. Respondent opposed the same on grounds that he acquired right
over said plot through valid sale deed. Thus, Trial Court dismissed suit. Appellant approached Appellate Court

22
which granted access on foot and denied motorable access to Appellant through plot of R-1. Hence, present appeal.
Held: From facts it is established that till the construction of road on adjacent plot, Appellant had no motorable
access to her premises. Thus, balance of convience lies in her favour. Directed that motorable access through plot of
R-1 must be provided to Appellant till completion of road through which Appellant can access her plot. After
completion of road, Appellants easementary right over said plot will expire.
5.
Subject Matter : THE INCIDENTS OF EASEMENTS

Relevant Section : Section 24: The dominant owner is entitled , as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner
as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the
dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights are the rights to do acts necessary to secure the full enjoyment of an easement.
Section 25: The expenses incurred in constructing works, or making repairs, or doing any other act necessary for
the use or preservation of an easement, must be defrayed by the dominant owner.
Section 45: An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Section 23: Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and
place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient
heritage.
Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does
not thereby impose any additional burden on the servient heritage.
Section 22: The dominant owner must exercise his right in the mode which is least onerous to the servient owner;
and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate
part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Section 51: An easement extinguished under section 45 revives
(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt
upon the same site, and
(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt
upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

Key Issue : a. Whether the owner of an easement was entitled to alter the mode and place of enjoying the easement

23
as laid down in Section 23 of the Indian Easements Act, 1882?
b. Whether right of privacy can be established except by pleading and proof of a customary right which has not
been done by the plaintiffs in the instant case?

Citation Details : Anguri and Ors. vs. Jiwan Dass and Ors. (30.08.1988 - SC): MANU/SC/0445/1988

Summary Judgment :

Facts: The plaintiffs are the owners of two houses adjacent to each other and also to the property of the defendants.
The defendants had a structure on their own property. On the roof of that structure they had made three morries
(narrow outlets for the outflow of dirty water). These morries opened towards the property of the plaintiffs. In an
earlier suit, the defendants had obtained an injunction directing the plaintiffs not to block the flow of dirty water
from the said three morries. The defendants were, however, permitted to fix up pipe lines to receive the said water
and carry it to a nali (drain) towards the East of their houses. The plaintiffs complied with the terms of the decree
granting the said injunction. The defendants then raised the height of the first floor of their structure by three feet
and on a part of the terrace over the first floor they constructed two additional storeys. In raising the height of the
roof over the first floor, the defendants blocked the three original morries and opened three new morries on the roof
over the first floor and opened six more morries on the respective terraces over the second and third floors in the
new construction. They opened all the morries in such a way that the outflow of water from all the said morries was
directed towards the properties of the plaintiffs. The defendants also constructed new windows which opened
towards the houses of the plaintiffs. The plaintiffs blocked these new windows by raising the height of their
respective walls and the defendants claimed the right to break these walls which obstructed the view from their new
windows.
Held: The defendants not merely altered the position of the said three morries by raising the height of his first
storey and the roof thereon but have opened six new morries so that in the place of three old morries, there are at
present nine morries in existence. Now, it is a matter of commonsense that the outflow of water from the nine
morries would be larger than the outflow of water from the three old morries and hence, it must be held that the
burden of the easement has been increased by the action of the defendants. Section 23 of the Indian Easements Act
on which reliance was placed provides that the dominant owner may, from time to time, alter the mode and place of
enjoying the easement provided that he does not thereby impose any additional burden on the servient heritage. In
the present Appeal before us, as additional burden on the property of the plaintiffs has been imposed by the action
of the defendants, the provisions of the said section cannot come to the aid of the defendants. As far as the question

24
of opening of new windows is concerned, it is open to the defendants to use their property in any manner permitted
by law; and hence they cannot be restrained from opening new windows, as no customary right of privacy appears
to have been pleaded or proved. It is, however, equally clear that, if the defendants open any new windows, the
plaintiffs are fully entitled to block the same by raising the height of their walls and the defendants are not entitled
to break or damage the said walls or any portion thereof so as to remove the obstruction to their new windows.
6.
Subject Matter : THE INCIDENTS OF EASEMENTS

Relevant Section : Section 24: The dominant owner is entitled , as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner
as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the
dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights are the rights to do acts necessary to secure the full enjoyment of an easement.
Section 25: The expenses incurred in constructing works, or making repairs, or doing any other act necessary for
the use or preservation of an easement, must be defrayed by the dominant owner.
Section 45: An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Section 23: Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and
place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient
heritage.
Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does
not thereby impose any additional burden on the servient heritage.
Section 22: The dominant owner must exercise his right in the mode which is least onerous to the servient owner;
and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate
part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Section 51: An easement extinguished under section 45 revives
(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt
upon the same site, and
(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt
upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

25
Key Issue : Whether the Appellant who was the Plaintiff had a right to go over the vacant space of the Defendant
for the purpose of repairing and white washing the northern outer side of the Plaintiff's wall?

Citation Details : L. Damodaraswami Naidu vs. S.T. Damodaraswami Naidu (24.09.1964 - MADHC):
MANU/TN/0133/1964

Summary Judgment :

Facts: The Plaintiff and Defendant are owners of adjoining properties, the Defendant being the owner of the
northern property. Between the houses of the Plaintiff and the Defendant there is a strip of vacant land. Normally
there would have been no obstruction to the Plaintiff having access to the northern side of his compound wall for
repairing, over the space of the Defendant. But he brought opposition to this course from the Defendant by his own
act, namely his instituting the suit claiming title to the vacant space and a mandatory injunction for pulling down
some construction which the Defendant had erected. The wall in question was in the open and the right asserted by
the Plaintiff in this suit is the right of access over the available open space to repair and white wash the northern
face of the wall periodically. The trial Court decreed the suit subject to some restrictions. The first appellate Court
took a contrary view. On second appeal to the High Court.
Held: For any enjoyment of the right of the easement of lateral support which the Plaintiff had acquired to his wall,
the wall itself must be kept in good repair and as an accessory to that easement, it could be held that he might do
acts necessary to secure the full enjoyment of the easement right. Of course, there was a limitation in the exercise of
such rights. Section 24 of the Easements Act itself limits the exercise of accessory rights by providing that it must
be done at such time and in such manner, as, without detriment to the dominant owner, to cause the servient owner
as little inconvenience as possible.If the act proposed was necessary for the enjoyment of the easement, the
dominant owner in such cases had to suit his time and manner to the reasonable convenience of the servient owner.
The dominant owner should not increase the burden on the servient owner, nor cause unnecessary inconvenience
and hardship to the servient owner. The time and manner of doing it must be such that the dominant owner if he
were the servient owner and a reasonable man, would prefer to have it done. In this case the Plaintiff had the right
he claimed to go over the vacant space of the Defendant to carry on repairs to the exposed northern wall.

26
7.
Subject Matter : THE INCIDENTS OF EASEMENTS

Relevant Section : Section 24: The dominant owner is entitled , as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner
as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the
dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights are the rights to do acts necessary to secure the full enjoyment of an easement.
Section 25: The expenses incurred in constructing works, or making repairs, or doing any other act necessary for
the use or preservation of an easement, must be defrayed by the dominant owner.
Section 45: An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Section 23: Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and
place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient
heritage.
Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does
not thereby impose any additional burden on the servient heritage.
Section 22: The dominant owner must exercise his right in the mode which is least onerous to the servient owner;
and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate
part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Section 51: An easement extinguished under section 45 revives
(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt
upon the same site, and
(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt
upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

Key Issue : a. Whether in the facts and circumstances of the case the lower Appellate Court was right in holding
that the suit was barred by time? b. Whether in the facts and circumstances of the case the plaintiff has acquired the
right of easement of vertical support from the servient heritage before the storeys were removed and he was entitled

27
to vertical support from the servient heritage for reconstruction of his second and third storeys on the date of suit?

Citation Details : Bhim Singh and Ors. vs. Bakhtawar Lal and Ors. (10.03.1993 - RAJHC): MANU/RH/0424/1993

Summary Judgment :

Facts: Concerned house was an ancestral property of plaintiff-appellant Padam Singh and the defendants
Bakhtawar Lal son of Gopal Lal and Shanti Lal son of Bakhtawar Lal. On a partition, the ground floor became the
property of defendants and the upper storey consisting of first floor and second floor became the property of
plaintiff Padam Singh. As a result of this partition of one property, plaintiff became entitled to vertical support of
walls of building on ground floor. It appears that the building was in dilapidated condition, there was a notice from
the Municipal Council, Udaipur for demolishing of the house. As a result of which the first and second floors
belonging to the plaintiffs were demolished. The plaintiff demanded of defendants to repair and reconstruct the
ground floor so that he can make reconstruction on his portion of his house. Having failed to get response from the
defendants, he has filed the suit for permanent injunction against the defendants that they may be directed to
construct ground floor or allow the plaintiff to construct it and to recover the costs of such construction of the
defendants and if the plaintiff is not permitted to construct the ground floor, such construction may be made
through Public Works Department at the costs of the defendants. The defendant's were restrained from obstructing
the plaintiffs in carrying out the construction as directed by the decree.
Held: Both the courts below have examined the case from the point of view that the case is covered by Sections 45
and 51 of the Indian Easements Act, 1882. The suit has been filed in March 1967 within 20 years of the
approximate date of the demolition of the upper storey, as admitted by the defendant in the written statement and
claiming relief of the repair and reconstruction of servient tenement within 20 years, must be held to be within
limitation. It is declared that the plaintiffs had an easement of absolute necessity of vertical support from the whole
of ground floor for use and enjoyment of his ownership of the first and second floor of the tenement including his
right to construct or reconstruct his share of the original tenement. The plaintiff has acquired a right of easement of
vertical support from the servient heritage from the date when the whole tenement which was once a one unit was
divided by partition and was converted into two heritages. The owner of the first floor and second floor being the
owner of dominant heritage acquired the right of easement of vertical support of the servient heritage of the ground
floor. The suit filed by plaintiffs is within limitation. Section 24 which authorises the dominant owner to do all acts
necessary to secure the full enjoyment of the easement, without detriment to the dominant owner. Unless the right
of easement enjoyed by the dominant heritage is adversely affected by any act of the servient owner, servient owner

28
is not liable for maintenance and upkeep of servient heritage. Any act of servient owner, the right of enjoyment of
easement is affected, the dominant owner is entitled to damages.
8.
Subject Matter : THE INCIDENTS OF EASEMENTS

Relevant Section : Section 24: The dominant owner is entitled , as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner
as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the
dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights are the rights to do acts necessary to secure the full enjoyment of an easement.
Section 25: The expenses incurred in constructing works, or making repairs, or doing any other act necessary for
the use or preservation of an easement, must be defrayed by the dominant owner.
Section 45: An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Section 23: Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and
place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient
heritage.
Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does
not thereby impose any additional burden on the servient heritage.
Section 22: The dominant owner must exercise his right in the mode which is least onerous to the servient owner;
and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate
part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Section 51: An easement extinguished under section 45 revives
(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt
upon the same site, and
(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt
upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

Key Issue : a. Whether by pulling down the privy which formed the subject of the former suit and rebuilding it at
another place, the plaintiff has thereby lost the right of easement which he had in respect of the previous privy?
b. Whether by the removal of the privy which formed the subject-matter of the present suit the decree is no longer

29
capable of execution?

Citation Details : Yosef David Varulekar vs. Moses Solomon Talkar (18.02.1931 -
BOMHC): MANU/MH/0063/1931

Summary Judgment :

Facts: The plaintiff had a privy at one end of his property, which was cleaned by a sweeper who used to pass
through a lane (gully) belonging to defendants, and had obtained a decree establishing his right of the easement.
Subsequently the defendants having moved the Municipality, the plaintiffs existing privy was demolished, and a
new one was erected at a point further down on the plaintiff's property. The defendants having obstructed the
plaintiff's sweeper from passing through their lane to clean the new privy, the plaintiff applied to execute his decree.
Held: The dominant heritage was not the privy but the plaintiffs house and land within which the privy was. The
removal of the privy and its rebuilding on a different spot on the plaintiff's land had not the effect of extinguishing
the easement under Section 45 of the Indian Easements Act, 1882. As long as the sweeper entered the plaintiff's
land or rather left the defendants' land at the same point, there was no increase in the burden, and that the case was
governed by Section 23 of the Act. The decree of the plaintiff was capable of execution, since the right of way to
which the plaintiff was entitled was in respect of cleaning the privy standing in his land and the fact that the privy
was moved further down in the plaintiff's property made no difference.
9.
Subject Matter : THE INCIDENTS OF EASEMENTS

Relevant Section : Section 26: Where an easement is enjoyed by means of an artificial work, the dominant owner
is liable to make compensation for any damage to the servient heritage arising from the want of repair of such work.
Section 44: An easement is extinguished where the servient heritage is by superior force so permanently altered
that the dominant owner can no longer enjoy such easement.

Key Issue : Whether Section 44 and Section 26 are applicable in the present case?

Citation Details : Chanti China Venkatareddi vs. Kurasani Koti Reddy and Ors. (22.12.1965 - APHC):
MANU/AP/0103/1967

Summary Judgment :

30
Facts: The respondent-plaintiff filed a suit for declaration of the easementary right of the plaintiff to let off rain
water discharged from the western plots A and A-1 towards east across the plots B and B-1 belonging to the
defendants and for the issue of a mandatory injunction directing the defendants to remove the elevated portion. It
was alleged that the defendants dug up two wells and dug channels also. The earth so removed was placed along the
ridge thereby preventing the water from A, A-1 plots to flow into B, B-1 plots with the result that the water was
stagnating and causing damage to the lands of the plaintiff. The trial Court after recording the evidence of the
parties upheld the contention of the plaintiff and decreed his suit. The matter was then carried in appeal but the 1st
defendant was not successful. Hence, the second appeal.
Held: Section 44 of the Easements Act has no application to the facts of the present case. That section relates to the
extinction of easementary right because of permanent alteration of servant heritage by superior force. It is not the
defendant's case that the ridge channel and the wells were brought into existence by any superior force. Section 44
of the Act, therefore, has no relevance. Section 26 plainly applies to the easementary rights. The right to drain off
the rainwater according to the lie of the land in a natural way, is a natural right and is not restricted by any such
limitation. According to the lie of the land the water was flowing in its natural way. By a device the defendants
seem to have obstructed it. The device was employed to create obstruction all along the ridge. I do not think,
therefore, that the decree granted by both the Courts below in favour of the plaintiff is in any way inconsistent with
the findings of the Courts below.
10.
Subject Matter : THE INCIDENTS OF EASEMENTS

Relevant Section : Section 24: The dominant owner is entitled , as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner
as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the
dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights are the rights to do acts necessary to secure the full enjoyment of an easement.
Section 25: The expenses incurred in constructing works, or making repairs, or doing any other act necessary for
the use or preservation of an easement, must be defrayed by the dominant owner.
Section 45: An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
Section 23: Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and
place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient

31
heritage.
Exception: The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does
not thereby impose any additional burden on the servient heritage.
Section 22: The dominant owner must exercise his right in the mode which is least onerous to the servient owner;
and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate
part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Section 51: An easement extinguished under section 45 revives
(a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion;
(b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt
upon the same site, and
(c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt
upon the same site and in such a manner as not to impose a greater burden on the servient heritage.

Key Issue : a. Whether by pulling down the privy which formed the subject of the former suit and rebuilding it at
another place, the plaintiff has thereby lost the right of easement which he had in respect of the previous privy?
b. Whether by the removal of the privy which formed the subject-matter of the present suit the decree is no longer
capable of execution?

Citation Details : Yosef David Varulekar vs. Moses Solomon Talkar (18.02.1931 -
BOMHC): MANU/MH/0063/1931

Summary Judgment :

Facts: The plaintiff had a privy at one end of his property, which was cleaned by a sweeper who used to pass
through a lane (gully) belonging to defendants, and had obtained a decree establishing his right of the easement.
Subsequently the defendants having moved the Municipality, the plaintiffs existing privy was demolished, and a
new one was erected at a point further down on the plaintiff's property. The defendants having obstructed the
plaintiff's sweeper from passing through their lane to clean the new privy, the plaintiff applied to execute his decree.
Held: The dominant heritage was not the privy but the plaintiffs house and land within which the privy was. The
removal of the privy and its rebuilding on a different spot on the plaintiff's land had not the effect of extinguishing
the easement under Section 45 of the Indian Easements Act, 1882. As long as the sweeper entered the plaintiff's
land or rather left the defendants' land at the same point, there was no increase in the burden, and that the case was

32
governed by Section 23 of the Act.

The decree of the plaintiff was capable of execution, since the right of way to which the plaintiff was entitled was in
respect of cleaning the privy standing in his land and the fact that the privy was moved further down in the
plaintiff's property made no difference.
11.
Subject Matter : REMEDIES

Relevant Section : Section 33: The owner of any interest in the dominant heritage, or the occupier of such
heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto.
Exception: Disturbance has actually caused substantial damage to the plaintiff.
Section 35: Subject to the provisions 52-57 of the Specific Relief Act, 1877, an injunction may be granted to
restrain the disturbance of an easement:
(a) if the easement is actually disturbed - When compensation for such disturbance might be recovered under this
Chapter;
(b) if the disturbance is only threatened or intended - when the act threatened or intended must necessarily, if
performed, disturb the easement.

Key Issue : Whether Plaintiff was entitled to an injunction as prayed for?

Citation Details : T.R. Bhushnam vs. C. Umapathi Mudaliar and Ors. (17.04.1935 - MADHC):
MANU/TN/0454/1935

Summary Judgment :

Facts: The plaintiff and the defendants are the owners of two contiguous houses. The plaintiff's house has got,
besides the ground floor, a first floor and also a second floor. The plaintiff's case is that the defendants are
attempting to raise a wall 12 feet above the existing wall of their house in order to build a terraced upstairs and that
this wall will shut out the light and air which formerly used to enter through the apertures mentioned above. The
defendants resisted the suit on two grounds, namely that the plaintiff had not acquired an easementary right to light
and air by prescription as alleged by him and also that the proposed wall would not substantially diminish the light
and air which used to be admitted through the apertures in question.The trial Judge found that though the proposed

33
wall would cause some diminution of light and air the diminution would not be so much as to cause physical
discomfort. He was of opinion that in the circumstances no injunction should be granted as desired by the plaintiff.
Hence, this appeal.
Held: A case of this kind is governed by Section 35, Easements Act, according to which, subject to the provisions
of Sections 52 to 57, Specific Relief Act, an injunction may be granted to restrain the disturbance of an easement
where the disturbance is only threatened or intended when the act threatened or intended must necessarily, if
performed, disturb the easement. Proposed wall would amount to a nuisance if built though it would to some extent
be inconvenient and diminish to some extent light and air that was now available to inmates of Plaintiff's house. In
these circumstances, Plaintiff Appellant failed to show that trial Court was wrong in refusing to grant an injunction.
12.
Subject Matter : REMEDIES

Relevant Section : Section 33: The owner of any interest in the dominant heritage, or the occupier of such
heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto.
Exception: Disturbance has actually caused substantial damage to the plaintiff.
Section 35: Subject to the provisions 52-57 of the Specific Relief Act, 1877, an injunction may be granted to
restrain the disturbance of an easement:
(a) if the easement is actually disturbed - When compensation for such disturbance might be recovered under this
Chapter;
(b) if the disturbance is only threatened or intended - when the act threatened or intended must necessarily, if
performed, disturb the easement.

Key Issue : Whether order of Courts below were just and proper?

Citation Details : Krushna Kishore Bal vs. Sankarsan Samal and Ors. (28.11.1973 - ORIHC):
MANU/OR/0027/1974

Summary Judgment :

Facts: Plaintiffs and the defendant are adjacent neighbours. By two separate sale deeds, plaintiffs purchased land
from Sidheswar Sahu. In the very year, plaintiffs constructed their residential houses on the land and continued to
reside therein. Defendant purchased land from Atul Ghose by a registered sale deed. He started construction on his

34
land. He did not leave a space of 15 feet as required under the Orissa Municipal Rules, 1953 towards the plaintiff's
side; he made construction by leaving a space of 1 to 2 feet and by the date of the suit he was proceeding with the
construction of his kitchen and latrine in close proximity to the plaintiff's houses. By the aforesaid illegal act, light
and air to the houses of the plaintiffs were obstructed and their privacy was affected. Despite repeated requests from
the plaintiffs the defendant did not desist in prosecution of the illegal act, the suit was filed. Hence, this Appeal.
Held: Authorities are consistent that three sections i.e. 28, 33, 35 must be read together. When so read, interference
with light and air which is not substantial does not give a cause of action to a person entitled to the right. There was
no provision in Act for an aggrieved person to move municipal authorities for redressal of grievances. Act did not
oust, either expressly or impliedly, jurisdiction of Civil Court to take cognizance of suits in which relief sought was
against injury caused by unauthorised construction. Thus, obligation of Defendant to Plaintiffs complaining of
injury was not enforceable through provisions of Act. Plaintiffs complained of invasion of their rights to light, air
and privacy. However, even in case where Plaintiff had acquired right of easement to light and air, an action for
damages or injunction was not maintainable unless injury complained of was material. Therefore, it was concluded
that Defendant's construction was in violation of municipal plan and rules was final.
13.
Subject Matter : EXTINCTION AND SUSPENSION OF EASEMENTS

Relevant Section : Section 41: An easement of necessity is extinguished when the necessity comes to an end.

Key Issue : Whether High Court was right in its observation that, there was no necessity of easement in facts of
present case?

Citation Details : S. Kumar and Ors. vs. S. Ramalingam (16.07.2019 - SC): MANU/SC/0913/2019

Summary Judgment :

Facts: The Plaintiff-Respondent filed two suits, firstly, claiming an injunction against the Defendants from using a
pathway and claiming exclusive right to use the said path. Another suit was filed restraining the Defendants from
preventing the Plaintiff from using the pathway to reach their land. The learned trial Court dismissed the suits
holding the Defendants have right of necessity of access to their property over the pathway in the first suit.
However, the First Appellate Court allowed the appeal and granted injunction as prayed holding that, there is no
necessity of easement as the said Defendant has access from the property of her husband. The High Court has

35
maintained the judgment and decree of the First Appellate Court. In present matter, Defendants are in appeal
aggrieved against judgment and decree passed by High Court.
Held: The relationship of D-1 & D-2 will not negate the grant of easement right of passage granted to her in the
sale deed only because the recital is generic in nature and usually put by the deed writers. Once the land has been
sold with the right of access through the land adjoining the property sold, such right could not be exclusively
conferred to the Plaintiff in the sale deed. The Plaintiff has to maintain the 16 feet wide passage in any case in terms
of the recital in his sale deed. Therefore, if the D-2 or her transferees use the passage, then such use of passage by
D-2 or her transferees cannot be said to be causing any prejudice to the Plaintiff. The subsequent events of
inheritance vesting the property in the same person will not take away the right of the Defendants to use the passage
adjacent to their land only because the D-2 has gifted part of land to D-1 or that after the death of both the
Defendants, the common legal proceedings inherited the property. The Appellants have been granted right to use
passage in the sale deed. Thus, it is not easement of necessity being claimed by the Appellants. It is right granted to
D-2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act,
1882. In view thereof, the judgment and decree passed by the High Court suffers from manifest error and, thus,
cannot be sustained in law. The passage adjoining the property of the Defendants leading to the property of the
Plaintiff is reserved for the common use of D-2 and of the Plaintiff.
14.
Subject Matter : EXTINCTION AND SUSPENSION OF EASEMENTS

Relevant Section : Section 49: Where the dominant heritage is transferred or devolves, by act of parties or by
operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the
easement to the person in whose favour the transfer or devolution takes place.

Key Issue : Whether an easement is said to be suspended in the instant case?

Citation Details : Chotey and Ors. vs. Dal Chand and Ors. (05.07.1929 - ALLHC): MANU/UP/0513/1929

Summary Judgment :

Facts: This is the defendant's appeal and arises out of the following circumstances. The plaintiffs brought the suit
for recovery of Rs. 600, as damages on the allegation that they had a right to irrigate four plots of land with the
water taken from a well situated in plot 2670, that they had grown potatoes in all the plots except plot 2671, that the

36
defendants, without any rhyme or reason stopped the plaintiffs from Irrigating the potatoes field and that a loss was
caused to the plaintiffs. The defence was that the well belonged to the defendants themselves, that the plaintiffs had
no right to cultivate their lands with the water of the well, that the defendants themselves had been cultivating the
four plots which are now in plaintiff's possession and that the plaintiffs were not entitled to recover any damages.
Held: It cannot be laid down as a broad proposition of law that a tenant cannot acquire an easement against
property held by another tenant under the same landlord. A tenant may acquire a right of easement to the use of
water for irrigation from a well owned by an adjoining tenant. An easement remains suspended when the dominant
and the servient tenements become rested in the same person, but revives when the tenements again vest in different
persons.
15.
Subject Matter : GRANTOR'S DUTY

Relevant Section : Section 57: The grantor of a licence is bound to disclose to the licensee any defect in the
property affected by the licence, likely to be dangerous to the person or property of the licensee, of which the
grantor is, and the licensee is not, aware.
Section 52: Where one person grants to another, or to a definite number of other persons, a right to do, or continue
to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be
unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
Section 58: The grantor of a licence is bound not to do anything likely to render the property affected by the licence
dangerous to the person or property of the licensee.

Key Issue : a. What was the exact legal relationship between the defendant and Umersey with respect to this
building ?
b. What duty, if any, did the defendant owe to Umersey in respect of the privies and wash-house on the fourth
floor ?

Citation Details : Lakhmichand Khetsey Punja vs. Ratanbai (11.10.1926 - BOMHC): MANU/MH/0134/1926

Summary Judgment :

Facts: This case is focused on the liability of a landlord to one of his tenants for the collapse on of part of a large

37
building let out mainly in rooms. Plaintiff No. 1's husband was the tenant of a room on the fourth floor of a building
belonging to the defendant. While he was in the privies and the wash-room on that floor that part of the building
collapsed killing him and others. The rent-bills only purported to show that a room was let. They were silent about
the user of the privies and the wash-room.The trial Judge held that the defendant was negligent in not making
proper repairs to the building and awarded Rs. 6,500 as damages to the plaintiffs by the defendant.
Held: That there was no contractual obligation on the defendant to repair either the room let or the privies. The
deceased's right over the privies amounted to a license under Section 52 of the Indian Easements Act, it was the
duty of the defendant under Section 57 of the Act to disclose any defect in the building likely to be dangerous to the
deceased of which the defendant was aware but the deceased was not. The defendant knew of the dangerous
condition of the building, he laid a trap for the deceased or failed in his duty under Section 57 of the Indian
Easements Act to disclose such danger, and was, therefore, liable for negligence. The defendant, therefore, owed a
duty to the deceased not to lay a trap for him in respect of such user.
16.
Subject Matter : REVOCATION AND TRANSFER OF LICENSE

Relevant Section : Section 60: Enumerates the conditions under which a license is irrevocable. Firstly, the license
is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting
upon the license executes work of permanent character and incurs expenses in execution.
Section 61: The revocation of a licence may be express or implied.
Section 56: Unless a different intention is expressed or neccessarily implied, a licence to attend a place of public
entertainment may be transferred by the licensee; but, save as aforesaid, a licence cannot be transferred by the
licensee or exercised by his servants or agents.

Key Issue : Whether the license of appellant can be revoked by the grantor under Section 60(b) of the Indian
Easements Act, 1882 in the instant case?

Citation Details : B.K.N. Narayana Pillai vs. P. Pillai and Ors. (13.12.1999 - SC): MANU/SC/0775/1999

Summary Judgment :

Facts:The respondent-plaintiff filed a suit against the appellant-defendant praying for the grant of mandatory and

38
prohibitory injunction seeking eviction allegedly on the ground of his being a licensee. In the written statement filed
the appellant herein pleaded that he was not a licensee but a lessee. During the trial of the suit the appellant filed an
application for amendment of the written statement to incorporate an alternative plea that in case the court found
that the defendant was a licensee, he was not liable to be evicted as according to him the licence was irrevocable.
He further wanted to add a plea that first and second prayers in the plaint were barred by limitation and that as
acting upon the licence he has executed works of permanent nature and incurred expenses in execution of the same
his licence cannot be revoked by the grantor under Section 60(b) of the Indian Easements Act, 1882. The prayer
was rejected by the Trial Court as also by the High Court on the ground that the proposed amendment, was
mutually destructive which, if allowed, would amount to permitting the defendant to withdraw the admission
petition allegedly made by him in the main written statement.
Held: The appellant-defendant is permitted to amend the written statement to the extent of incorporating the plea of
his entitlement to the benefit of Section 60(b) of the Indian Easements Act, 1882 only subject to his paying all the
arrears on account of licence fee and costs assessed at Rs. 3,000 within a period of one month from the date the
parties appear in the Trial Court. The payment and receipt of the arrears of licence fee shall be without a prejudice
to the rights of the parties which may be adjudicated by the trial court.
17.
Subject Matter : REVOCATION AND TRANSFER OF LICENSERelevant Section : Section 60: Enumerates
the conditions under which a license is irrevocable. Firstly, the license is irrevocable if it is coupled with transfer of
property and such right is enforced and secondly, if the licensee acting upon the license executes work of
permanent character and incurs expenses in execution.
Section 61: The revocation of a licence may be express or implied.
Section 56: Unless a different intention is expressed or neccessarily implied, a licence to attend a place of public
entertainment may be transferred by the licensee; but, save as aforesaid, a licence cannot be transferred by the
licensee or exercised by his servants or agents.Key Issue : a. Whether the plaintiffs had right to easement?
b. If then the right is not an easement, whether it is a license, and if so, whether it is a revocable license or an
irrevocable license?Citation Details : Janardan Mahadeo Bhase vs. Ramchandra Mahadeo Bhase (05.10.1926 -
BOMHC): MANU/MH/0175/1926Summary Judgment :

39
Facts: P-1 and D-1 are brothers. P-2 and D-2 are cousins, being the son of P-1 and the son of D-1 respectively.
Originally they formed a joint family, but in 1921 a deed of partition was executed by the parties. Under this deed a
certain house with a well at the back fell to the share of the defendants, while the neighbouring house fell to the
plaintiffs' share with no Well. The deed of partition provided that the second brother should "out of brotherly
affection be allowed to take the water of the well," and recited that he was "asking, not as a matter of right, but
simply out of regard." Disputes arose about the use of the water from the well in question, and the defendants built
a wall which the plaintiffs contend obstructed their old passage to the well, and their right to take water from it.
Trial Court held that the plaintiffs had no right to ask for the removal of the wall, which the defendants had put up.
On appeal, the District Judge has held that what is granted by this clause amounts to an easement to take the water
of the well, vesting in the plaintiffs and that the defendants had no right to prevent the plaintiffs from exercising this
right of easement and taking water from the well in suit. Hence, present is the second appeal.
Held: That the right acquired by the plaintiff under the deed, though not an easement, was a license as defined in
Section 52 of the Indian Easements Act 1882. As the license was granted as part of a partition which granted certain
property to the plaintiff, it was a license coupled with a transfer of property and irrevocable as such, under Section
60(a) of the Act. It is a personal right granted merely to Ramchandra and Gopal. The words "save as aforesaid" in
the second part of Section 56 of the Indian Easements Act bring in the words "unless a different intention is
expressed or necessarily implied"; and having regard to the nature of the license, namely, a right to go and take
water from the well, which would ordinarily be done, if so desired, by servants or agents, I think it must be taken
that there is an implied intention in the grant that the right could, to a reasonable extent, be exercised by servants or
agents. The words "an interest in the property" in Section 52 of the Indian Easements Act 1882, are presumably
intended to cover cases where there might be a right in the property granted such as a lease or a right of joint
possession. Section 60(a) of the Act does not necessarily use the words "transfer of property" in the limited sense
of a transfer as defined in the Transfer of Property Act 1882, it is fairly clear that it was coupled with a transfer of
the property. That transfer is in force, and the plaintiffs have a right to use the water of the well.
18.
Subject Matter : NATURE OF GRANT

Relevant Section : Section 54: The grant of a licence may be expressed or implied from the conduct of the grantor,
and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a

40
licence.
Section 53: A licence may be granted by any one in the circumstances and to the extent in and to which he may
transfer his interests in the property affected by the licence.

Key Issue : Whether status of respondent as licensee of suit property could be implied in view of provision of
Section 54 of Act?

Citation Details : Surjit Kaur vs. Balwinder Kaur (07.09.2005 - PHHC): MANU/PH/0492/2005

Summary Judgment :

Facts: Respondent's husband was appellants' brother. Appellant allowed respondent's husband to live in one room
of suit premises as licensee. After death of respondent's husband, appellant served notice upon respondent and
terminated her license. Despite of notice, respondent failed to vacate the room. Appellant filed suit for mandatory
injunction for direction to respondent to vacate the same. Trial Court decreed suit in favour of appellant.
Respondent filed first appeal which was allowed. Hence, this is the second appeal filed by appellant.
Held: Section 54 of Act provides that grant of license may be expressed or implied from the conduct of grantor. In
present case, parties are closely related and it is natural for the close relations to grant permission to one for stay in
house owned by the other. As per established facts of present case, husband of the respondent was licensee and
after his death, respondent continued living room where her husband used to live. It is also proved that appellant
had issued a notice calling upon respondent to vacate the room and hand over possession thereof to her. Although
status as licensee enjoyed by husband of respondent may not be inherited by respondent, yet after his death, she was
permitted to continue in possession of the suit property. Thus, conduct of parties is such that it would give rise to
legitimate presumption that respondent independently acquired the status of licensee and has been continuing in
possession as such. However, as ownership of appellant upon suit premises fully established, licensee hold by
respondent by implication, stood terminated when appellant issued notice to her vacate the premises. Accordingly,
appeal succeeds and respondent directed to hand over vacant possession of suit property to appellant.
19.
Subject Matter : LICENSEE'S RIGHTS ON REVOCATION AND EVICTION

Relevant Section : Section 63: Where a licence is revoked, the licensee is entitled to a reasonable time to leave the

41
property affected thereby and to remove any goods which he has been allowed to place on such property.
Section 64: Where a licence has been granted for a consideration, and the licensee, without any fault of his own, is
evicted by the grantor before he has fully enjoyed, under the licence, the right for which he contracted, he is entitled
to recover compensation from the grantor.

Key Issue : a. Whether, dispossession of Petitioners was arbitrary and unfair?

b. Whether, Petitioners were entitled for relief?

Citation Details : B. Balathamburaj and Ors. vs. Commissioner, Madurai Corporation, Madurai and Ors.
(09.12.2011 - MADHC): MANU/TN/5220/2011

Summary Judgment :

Facts: The petitioners were allotted either vacant space or shops in the Mattuthavani Bus Stand owned by the
Corporation of Madurai. The petitioners were evicted. Respondents dispossessed Petitioners from shops on ground
that places were intended for public purposes. Apart from 188 shops, there were also rooms intended for public
purposes and not intended to be let out for commercial purposes. The petitioners herein, participated in the auction
and became the successful bidders. Therefore, they were allotted these shops/vacant space and they have been
carrying on business. A couple of fire accidents in the shops located in the Bus Stand, had been reported earlier, due
to the unauthorised use of gas cylinders and stoves. Therefore, it is claimed that the Collector orally instructed the
officials of the Corporation, during his visit, to take appropriate action. On 7.6.2010, the District Collector appears
to have sent a written communication in this regard to the Commissioner of the Corporation. But it is claimed by
the Corporation that on 6.6.2011 itself, notices were affixed in the shops of the petitioners. The notices which are
identically worded, called upon the petitioners to vacate and hand over possession within 24 hours on the ground
that these shops had proven to be a hindrance to the public. After 24 hours, the petitioners were thrown out with
police help. Some of them have been evicted on 8.6.2011 and some of them later. Aggrieved by their sudden
dispossession, the petitioners have come up with these writ petitions.
Held: Respondents were entitled to serve notices personally on Petitioners and obtain their acknowledgements in
delivery book but Respondents resorted to affixture even in first instance perhaps with view to pre-empt Petitioners
from approaching Court and thwarting their attempts. Therefore when Petitioners had participated in auction

42
conducted in pursuance of advertisements issued in newspapers and had taken shops/vacant space on license,
Respondents could not throw them out by adopting dubious methods. Therefore eviction of Petitioners without
assailing auction as wholly vitiated was arbitrary especially when Respondents had not followed due process of
law. Under Section 63, a licensee is entitled to a reasonable time to leave the property and to remove his goods,
upon the revocation of the license. The time of 24 hours granted under the notices dated 6.6.2011, assuming that
they were duly served on the petitioners, is certainly not a reasonable time within the meaning of Section 63.
Therefore, it is clear that the petitioners have been treated unfairly. Under Section 64 of Act where license was
granted for consideration and licensee was evicted without any fault of his own before he has fully enjoyed right for
which he contracted, he was entitled to recover compensation from grantor. Therefore appropriate remedy for
Petitioners was only to seek compensation and not re-possession especially when places granted to them were no
more available for private licensing.

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CONCLUSION :

Unlike lease, an easement does not provide the holder a right of "possession" of the property. Therefore, an

easementary right is a provision made for specific relief from specific violations of common basic rights. In the

case of the right to way, any unlawful interference with the right of way constitutes a nuisance. However, a right of

way doesn’t entitles the grantee, or those lawfully using the way under the grant, to the exclusive use of the land

over which the way exists neither does every obstruction of the way amounts to an unlawful interference, and no

action would comply unless there is a substantial interference with the easement granted. In the case of right to

access of light, it does not constitute the right to have a continuance of the same amount of light throughout. In case

of a diminution, the dominant owner ought to show that the diminution has interfered with his ordinary course of

life and it results in a nuisance if it is enough to render the occupation of the house uncomfortable, and obstructs the

owner from carrying his business as beneficially as he formerly did. In the landmark case of Hero Vinoth v.

Seshammaxxxi1 , it was held that – an easement would last only as long as the absolute necessity existed and such a

legal extinction could not apply to an acquisition by grant- if a right of way was provided to a particular sharer, it

could not be terminated merely because such sharer had other alternative way.

44
(xxx) Indian Easement Act, 1882, §2(a).

(xxxi) Hero Vinoth v. Seshammal, 5 SCC 545, ¶29, 30 (2006).

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46