Xpert
04-11-2012, 04:36 PM
right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritage and owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
(a)A, as the owner of a certain house, has a right of way thither over his neighbor B’s land for purposes connected with the beneficial enjoyment of the house. This is an easement.
(b) A, as the owner of a certain house, has a right to go on his neighbor B’s land, and to take water for the purposes of his household out of a spring therein. This is an easement.
(c) A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountains in the garden attached to the house.
[B] Comments
Definition of Eaement: Under the definition of easement in section 4 of the easements act, a right will be an easement if the following elements are present:
(i) The right is in the owner or occupier of land as such:
(ii) It is for the beneficial enjoyment of that land;
(iii) It is to do or to continue to do something or to prevent or continue to prevent something being done;
(iv) That something is in or upon or in respect of certain other land;
(v) The other land is not his own.
The explanation to section 4 gives an extended meaning to the expressions “land”, “beneficial enjoyment” and “to do something”. In view of the explanation, land will include things permanently attached to the earth like a house or other building, and the extended meaning of the expression to do something, will being profit-a-prendre within the definition of easements. Thus the definition of easements act includes not only an easements in the English or ordinary sense but also a profit-a-prendre which the beneficial enjoyment to a dominant tenement. An easement can be acquired for the beneficial enjoyment of not only open land but also of houses and building, etc, and it acquired in or upon or in respect of not only open land but also houses and buildings and their things growing or permanently attached to the earth. “Easement” is also defined in the limitation act, 1908. The definition is an inclusive definition. It includes all rights which are easements within the meaning of section 4 of the easement act as also profit-a-prendre in gross which are not easements under the easements act. The definition applies in all those areas to which the easements act has not been extended. Easement always appurtenant to the dominant and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Rights which are by a community or class of persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenement, indeterminate and fluctuating body of persons, such as the public or the community cannot have no easement. AIR 1982 Pat. 133.
Right of easement: Relief claimed on basis that defendant had made construction in violation of law. Plaintiff could not claim relief on such basis unless he proved that construction made by defendant was prohibited by any statutory law rule. 1992 Mld 200 (g).
According to the case of Jannat Bibi v. Azim Bkhas, 1994 CLC 1695, Easements act would be applicable to evacuee properties transferred under the settlement law.
According to the case of Rehman v. Akram Khan, 1991 MLD 1502, courts below concurrently found on basis of evidence on record, that petitioner did not possess right of easement by necessity in passage in dispute and that petitioner had also failed to prove that he had been using passage in dispute for a period of twenty years without interruption. Concurrent findings of courts below based on record with in arrived at after giving cogent reasons, could not be interfered with in revisional jurisdiction of high court, especially when petitioner has not been able to assail cogency or reasons of courts below
Characteristics of easement: Main characteristics of easement are:
(i) there must be dominant and a servient tenement;
(ii) the easement must accommodate the dominant tenement.
This is clear from the definition of easement given in Sec. 4 of the easements act, 1882 AIR 1981 Pat 133.
Suit for damages or injunction when maintainable: Even where any person had acquired right of easement to light and air, action for damages or injunction was not maintainable unless injury complained of was material. Plaintiffs having acquired no right of easement on account of alleged violation of plan approved by authority, would have to establish not merely injury to their right to light, air, privacy or the fact that alleged construction of multi-storeyed building by defendants, apart from creating over population would be a public nuisance which would not only shatter clam and peaceful atmosphere but would also cause material injury. 1995 CLC 846.
Dominant and servient heritage and owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
(a)A, as the owner of a certain house, has a right of way thither over his neighbor B’s land for purposes connected with the beneficial enjoyment of the house. This is an easement.
(b) A, as the owner of a certain house, has a right to go on his neighbor B’s land, and to take water for the purposes of his household out of a spring therein. This is an easement.
(c) A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountains in the garden attached to the house.
[B] Comments
Definition of Eaement: Under the definition of easement in section 4 of the easements act, a right will be an easement if the following elements are present:
(i) The right is in the owner or occupier of land as such:
(ii) It is for the beneficial enjoyment of that land;
(iii) It is to do or to continue to do something or to prevent or continue to prevent something being done;
(iv) That something is in or upon or in respect of certain other land;
(v) The other land is not his own.
The explanation to section 4 gives an extended meaning to the expressions “land”, “beneficial enjoyment” and “to do something”. In view of the explanation, land will include things permanently attached to the earth like a house or other building, and the extended meaning of the expression to do something, will being profit-a-prendre within the definition of easements. Thus the definition of easements act includes not only an easements in the English or ordinary sense but also a profit-a-prendre which the beneficial enjoyment to a dominant tenement. An easement can be acquired for the beneficial enjoyment of not only open land but also of houses and building, etc, and it acquired in or upon or in respect of not only open land but also houses and buildings and their things growing or permanently attached to the earth. “Easement” is also defined in the limitation act, 1908. The definition is an inclusive definition. It includes all rights which are easements within the meaning of section 4 of the easement act as also profit-a-prendre in gross which are not easements under the easements act. The definition applies in all those areas to which the easements act has not been extended. Easement always appurtenant to the dominant and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Rights which are by a community or class of persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenement, indeterminate and fluctuating body of persons, such as the public or the community cannot have no easement. AIR 1982 Pat. 133.
Right of easement: Relief claimed on basis that defendant had made construction in violation of law. Plaintiff could not claim relief on such basis unless he proved that construction made by defendant was prohibited by any statutory law rule. 1992 Mld 200 (g).
According to the case of Jannat Bibi v. Azim Bkhas, 1994 CLC 1695, Easements act would be applicable to evacuee properties transferred under the settlement law.
According to the case of Rehman v. Akram Khan, 1991 MLD 1502, courts below concurrently found on basis of evidence on record, that petitioner did not possess right of easement by necessity in passage in dispute and that petitioner had also failed to prove that he had been using passage in dispute for a period of twenty years without interruption. Concurrent findings of courts below based on record with in arrived at after giving cogent reasons, could not be interfered with in revisional jurisdiction of high court, especially when petitioner has not been able to assail cogency or reasons of courts below
Characteristics of easement: Main characteristics of easement are:
(i) there must be dominant and a servient tenement;
(ii) the easement must accommodate the dominant tenement.
This is clear from the definition of easement given in Sec. 4 of the easements act, 1882 AIR 1981 Pat 133.
Suit for damages or injunction when maintainable: Even where any person had acquired right of easement to light and air, action for damages or injunction was not maintainable unless injury complained of was material. Plaintiffs having acquired no right of easement on account of alleged violation of plan approved by authority, would have to establish not merely injury to their right to light, air, privacy or the fact that alleged construction of multi-storeyed building by defendants, apart from creating over population would be a public nuisance which would not only shatter clam and peaceful atmosphere but would also cause material injury. 1995 CLC 846.