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vustudents
05-01-2012, 02:57 AM
What do u understand about Easements of necessity

(1) How arises: Easement of necessity arises only open severance of tenement either by transfer or bequest or partition. It can arise in favour of the transfer or the legatee or the separated co-sharer. It can also arise in favour of the transferor or legal representative of the testator or the other separated co-sharer. It arises upon severance only when a person in one of these groups finds. It absolutely impossible to enjoy his tenement with exercising a right of easement over the tenement of the person from whom he has separated. Clause (a), (c) and (e) of section 13 deal with easements of necessity. When one person transfers or bequeaths part of his immovable property to another, the transferee or legatee can acquire an easement of necessity under clause (a) in the other property of the transferor or testator and the transferor of the legal representative of the testator can do so under clause (c) in the property transferred or bequeathed. Under clause (e) a co-sharer can acquire an easement of necessity on partition of the joint property, in the property of the other co-share. A person is entitled to an easement of necessity if “the easement is necessary for enjoying” his tenement. According to the case of Pakistan Warranted Warehouse Ltd. v Sindh Industrial Trading Estates Ltd., 1991 SCMR 119, the easement of necessity was an easement without which property could not be used at all. Consideration of reasonable enjoyment of property furnished no test for creation of such right of easement nor would convenience be the test for creation of such right. Necessity must be an absolute and not a convenient mode of enjoyment of property. Necessity under clause (a) of S 13, Easements act, 1882 was not an ordinary necessity but an absolute one. Easement of necessity could only be claimed when it was demonstrated before court that without enjoyment of that right, property for the benefit of which easement was being claimed could not be used at all. 1992 CLC 2060 (b). Alternatepath available to plaintiff, for the sustenance of claim of right of easement, plaintiff must show that without enjoyment of such right, property in question, for the beneficial user whereof the right existed, could not at all be used; and also mere necessity for use of the property and inconvenience was not enough to grant such a right. Right of easement of necessity was not established in circumstances. 1939 MLD 1481 (c). Where right of way as claimed or as an easement of necessity. Courts below rejecting the same on the assumption that such necessity must be absolute held. The consensus of judicial opining seems to be that an easement of necessity is an easement without which the property cannot be used at all. The same be not a convenient mode of enjoyment of the property. Further held, that where there are other ways for ingress and exit an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient. Appeal was dismissed. 1990 PSC 1199.
(2) Requirement of absolute necessity: The words used in clauses (a), (c) and (e) are “necessary for”. By themselves they are very ordinary words but following the meaning attached to the phrase “easement of necessity” in English law it was held that there words did not effect any change in the law existing at the time of the enactment of the easements an easements act. The law in this respect is the same as in England was. ILR 15 All. 270. An easement of necessity can arise only if it is absolutely necessary for the enjoyment of one of the severed tenement and it is impossible to enjoy that tenement without such easement.
(3) Extraordinary user: Though it is clear and well settled that the necessity under clauses (a), (c) and (e) of the easements act as well as under general law is no ordinary necessity but an absolute necessity, that absolute necessity is to be judged not with reference to the ordinary use of a piece of property but with reference to any extraordinary or enlarged use to which the owner may have actually put that property. Where the heritage under severance was a factory it was held that if a narrow way is granted the factory would have to be closed down and that only the way through which carts, bullocks and cattle could pass would satisfy the absolute necessity of a dominant tenement which is a factory. 17 IC 966. Illustration (g) appended to section 13 in an instance of extraordinary user where an easement of necessity is recognized of polluting the air by the discharge of smoke and vapours from a factory. In the case of Smt. Narayani Devi v. Phool Chand, AIR 1981 All. 99, an easement of way for sweeper to clean latrine was allowed.
(4) Instances of easements of necessity: Easements of necessity are usually in respect of the right-of-way or access and of support. Illustrations (a), (b) and (n) appended to section 13 are examples of easement of way while illustrations (i), (j) , (k), (l) and (m) are is respect the right to support. Illustration 9g) is in respect of the extraordinary user to pollute the air.
(a) Right-of-way: For claming a way of necessity it is absolutely necessary that the tenement conveyed is landlocked, that is absolutely necessary that the tenement conveyed is landlocked, that is, surrounded on all sides by land belonging to third persons and the only way of access is over the contiguous land of the grantor. AIR 1930 Cal. 230. But it is no answer to an argument of absolute necessity that there is some other contiguous tenement over which the owner of the severed part may obtain a right-of-way. ILR 99 Bom. 797. According to the case of Fazal Karim and another v. Muhammad Ashiq and 2 others, 1983 CLC 272, the plaintiff was alleged to have been using a 6 wide path over the land of defendants to reach their house for more than 50 years but the defendants blocked that passage by raising a wall over entire front of their house and prayed for issuance of perpetual injunction restraining defendants from blocking plaintiff’s passage. It was held that the plaintiffs must prove (i) to have been passing over subservient tenement for more than 20 years; (ii) to have passed over such tenement adversely to right of owner of tenement;(iii) to have passed over subservient tenement consciously. Court in such cases was also to look to nature and character of the subservient land, relations between the parties and manner in which user took place. The plaintiff filed to prove items (ii) and (iii) and neither proved to have earned prescriptive right-of-way nor there had been no alternate passage. Disputed path and properties being situated in village where normally land-owners permit others to use their land for the purpose of passage, such passage was generally a permissive act and never was treated as hostile. No prescriptive right of passage over subservient tenement having been established, either as of necessity or otherwise, plaintiff’s suit rightly dismissed. Easement right having not been acquired by prescription only other right-of-way could be claimed by way of necessity on account of absence of any other access of tenements. 1983 CLC 1348. There can be no easement without animus and a mere passage by licence would not entitle the claimant to the right of easement unless he can prove that he has been doing acts as of right. A prescriptive right-of-way cannot be acquired by mere enjoyment for the statutory period. The enjoyment must be as of right i.e., not attributable to permission, implied or express. The mere fact that one person walks over the land of another, does not raise any presumption that he has a right to do so. Numerous people pass over the lands of their neighbours, friends and relations with their tacit permission. Such user, though continuous, and long, is seldom understood as being in assertion of any right. In a suit for prescriptive right-of-way the plaintiff must show that his user was such as was sufficient to put the serivient owners on notice that the enjoyment was not attributable to his tacit permission or favour. Whether the enjoyment was as of right or attributable to tacit permission, may be difficult to determine in many cases; but, however great the difficulty is, it cannot be resolved by drawing a presumption in favour of the dominant owner, on whom lies the burden to establish his right. Whether the enjoyment was had as of right, is to be inferred from the circumstances of each particular case, and it is the duty of the dominant owner to prove facts which will justify such an inference. To entitle him to such an inference, he must show that the acts of actual user were such as to put the servient owner regarded as a reasonable man on notice that a right in the natural of an easement was being asserted or claimed over his property. In a Muslim society where the neighbours are to be accommodated to the greatest possible extent, a casual passage on this or that occasion through one’s courtyard or verandah will be referable to a licence and not as of right as is known in the law of easement. PLD 1975 Pesh. 82.
(b) Right of flowing water: An easement to drain rain water was allowed as an easement of necessity arising on severance of property in the case of Khanchand v. Gulrajmal, 8 IC 939 (Sind 1910), though on the facts of this case it seems that the right in question could arise as a natural right depending upon the mere topographical of difference in level between the severed tenements. The lands of the plaintiffs and defendants, besides being irrigated by sullage water, were also receiving water from two wells which still existed at the time of suit. These apparently had gone out of use at some undefined point of time but it was not shown that they could not be requisitioned again for irrigation purposes. Indeed, one of the wells seemed to be in working order, according to the evidence. In theses circumstances, it could not be said that but for the sullage water through the artificial channel claimed, there was no other means of irrigating the appellants’ land. Clause (e) of section 13 of the easements act, therefore, was not attracted to the case. PLD 1952 Lah.. 411.
(c) Right to support: Where contiguous plots of land were transferred and each purchaser had knowledge that substantial buildings were to be erected upon each plot, in view of illustration (k) of this section as well as in consonance with English law, it was held that easements of lateral support for each buildings from the adjoining ones were saved as easements of necessity under clause (a) of section 13. AIR 1937 Oudh 57.
(d) Scaffolding : The right to go on a neighbour’s land and erect scaffolding thereon in order to plaster and whitewash one’s wall was specifically negatived as an easement of necessity by the Bombay high court in the case of Official Trustee, v, Salehbhai. AIR 1926 Bom. 328.
(5) Extent of easement of necessity: The extent of an easement of necessity is determined by the user or necessity existing at the time of severance and such user cannot be enlarged after severance. Where a way of necessity arose for an agricultural field, it was not allowed to be claimed for the timber depot into which the holding was converted. ILR 24 Bom. 188.
(6) Easements of necessity arising of partition: When joint property of several persons is partitioned as easement of necessity can be acquired by the share of any of them over the share of another of them under clause (e) of section 13.All sharers stand on the same footing. Under clause (e) the plaintiff has to prove that the easement claimed was necessary for the enjoyment of the property allotted to him on partition. AIR 1923 Oudh 57.