vustudents
04-29-2012, 06:13 PM
Clause (2) of Section 4 provides that the land on which the liability of an easement is imposed is called the “servient ” and the owner or occupier of such land is called the “servient owner”. The right of easement is acquired in the ‘serviant tenement’ and not against the ‘servient owner’, though it will bind the subservient owner. AIR 1927 All. 428.
(1) Distinct tenements and different owners: For the creation of the right of easement there must be two distinct tenements owned by different persons. An easement is a right in favour of the dominant tenement and against the servient tenement and the two must be owned by different persons for such a right cannot be acquired by dominant owner in his own land. AIR 1981 Del. 118. In the case of S.V. Devasthanam v. Kanakalaksem, AIR 1976 AP 250, it was observed: The words ‘not his own’ in section 4 of the easements act are highly significant. It is imperative that the owners of the servient tenement and the dominant heritage must be different. The essential ingredients of an easement, viz., there should be two different tenements a dominant and a servient, the owners thereof should be different and the right must relate to doing of an act upon a land not his own, should be satisfied for claming an easement right. AIR 1980 Guj. 146. Nor can an easement be acquired where the dominant owner is the joint owner of the servient heritage. AIR 1973 AP 86.
(2) Easement creates no right in serivent owner: An easement exists solely for the benefit of the dominant tenement and, being in its very nature a right created for the benefit of the dominant owner, its exercise by him cannot operate to create a new right for the benefit of the servient owner. If the owner of the dominant tenement wishes to abandon his easement the owner of the servient tenement has not right nor can he acquire any right, to insist upon a continuance of the exercise of the easement and of any incidental advantages accruing to him of his servient tenement.
(1) Distinct tenements and different owners: For the creation of the right of easement there must be two distinct tenements owned by different persons. An easement is a right in favour of the dominant tenement and against the servient tenement and the two must be owned by different persons for such a right cannot be acquired by dominant owner in his own land. AIR 1981 Del. 118. In the case of S.V. Devasthanam v. Kanakalaksem, AIR 1976 AP 250, it was observed: The words ‘not his own’ in section 4 of the easements act are highly significant. It is imperative that the owners of the servient tenement and the dominant heritage must be different. The essential ingredients of an easement, viz., there should be two different tenements a dominant and a servient, the owners thereof should be different and the right must relate to doing of an act upon a land not his own, should be satisfied for claming an easement right. AIR 1980 Guj. 146. Nor can an easement be acquired where the dominant owner is the joint owner of the servient heritage. AIR 1973 AP 86.
(2) Easement creates no right in serivent owner: An easement exists solely for the benefit of the dominant tenement and, being in its very nature a right created for the benefit of the dominant owner, its exercise by him cannot operate to create a new right for the benefit of the servient owner. If the owner of the dominant tenement wishes to abandon his easement the owner of the servient tenement has not right nor can he acquire any right, to insist upon a continuance of the exercise of the easement and of any incidental advantages accruing to him of his servient tenement.