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05-02-2012, 02:35 AM
Rights which cannot be acquired by prescription
Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.
None of the following rights can be so acquired- -
(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;
(b) a right to the free passage of light or air to an open space of ground;
(c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;
(d) a right underground water not passing in a defined channel.
Scope: The first part of section 17 is given the name “prescriptive rights” to the easements acquired under section 15 which are said to be acquired by prescription. The second part of section 17 is like an exception of section 15. It provides that none of the four kinds of rights specified therein can be acquired by prescription under section 15. In terms section 17 does not prohibit the acquisition of the four kind of rights specified therein by any other mode of acquisition, e. g., by express grant or by lost grant or under the limitation act. AIR 1932 Bom. 130.