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vustudents
05-04-2012, 07:14 PM
Extinction on permanent alteration of servient heritage by superior force

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: Provided that, where a way of necessity is destroyed by superior force, the dominant owner has a right to another way over the servient heritage; and the provisions of section 14 apply to such way.
Illustration
(a) A grants to B, as the owner of a certain house, a right to fish in a river running through Aís land. The river changes its course permanently and runs through Cís land. Bís easement is extinguished.
(b) Access to a path over which A has a right-of-way is permanently cut off by an earthquake. Aís right is extinguished.
Comments
Alteration of servient heritage: An easement is extinguished under section 44 when is an alteration in the servient heritage- -
(i) Which is permanent in nature ,
(ii) Which is brought about by superior force, and
(iii) Which is of such a nature that it makes the enjoyment of the easement by the dominant owner impossible.
The alteration must not be merely temporary but permanent. It must not be brought about by the dominant owner or the servient owner but by some superior force. It must not merely make the exercise of the right inconvenient or difficult be must completely prevent the dominant owner from exercising it. In the case of Bayya Sahu v. Kishnachandra, AIR 1920 Mad. 125, a customary easement to irrigate fields from the Zamindarís tank was involved and owning to natural causes it had become impossible to take the water from the tank to the fields. It was observed by Sadsiva Aiyar, J: Superior force as shown by illustration (a) and (b), includes natural causes. Of course a servient owner cannot by his own wrongful act destroy the utility of the servient tenement actively and thus claim to put an end to the easement. But if through the forces of nature, the tank has become long ago unfit for use by the plaintiff for the irrigation of his lands the principle of law embodied in section 44, easements act, clearly applies and the easement of right has ceased to exist long age.
Way of necessity: The proviso to section 44 makes an exception in the case of a way of necessity. A way of necessity is acquired under section 13 upon severance of tenements by transfer inter vivos or testamentary or by partition. Like other ways, it has to have a defined route and direction. Even if this defined way is destroyed by a permanent alteration of the servient heritage by superiod force the way of necessity is not extinguished and the dominant owner is entitled to another way over the servient heritage. The new way will be carved out in accordance with the provisions of section 14. The servient owner must set out the new way which is reasonable convenient for the dominant owner and on his failure to do so the dominant owner may himself set out the new way.