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    What is The Easement Act

    (V of 1882)
    (17th February, 1882)
    An act to define amend the law relating to easements and licences
    Preamble: Whereas it is expedient to define and amend the law relating to easements and licences; It is hereby enacted as follows:- -
    Preliminary

    1. Short title & Commencement: This Act may be called the Easements Act, 1882.

    Local extent: [Omitted by A. O. 1949, Schedule.]
    Commencement: And it shall come into force on the first day of July, 1882.
    Comments
    History: Easement are certain rights connected with the enjoyment of immovable property and like many other species of legal rights and obligations, first found a clear recognition in the action Roman Law. They are called servitudes in the Roman legal system and were defined therein with great theoretical precision and applied with no less practically utility. Gradually, they found their way into continental legal system including the Napoleanic Code of France and also formed an important and interesting part of the common law of England. Easements or Servitudes, which are inclusive of easements are rights of great antiquity. The law of every court must necessarily recognize servitudes, it has been well said that origin of servitudes is as ancient as that of property, of which they are a “modification”. By the Roman law is meant the fabric of law which originated in the Twelve Tables, was gradually developed through succeeding centuries and finally took codified from under the Emperor Justinian in the sixth century after Christ. Turning to the Roman or civil law, as it is something called, upon the legal systems of most of the continental nations are based and from which the English common law has borrowed many maxims of proved wisdom and utility, it is found that easements were recognized under the name of Servitudes. The whole bundle of rights which went to constitute the complete ownership of property was called dominium and servitudes were regarded as fragments of such dominium severed from the original stock, and granted to some person other than the original proprietor in restriction of the latter’s absolute ownership. For this reason, right of servitude were called by the Roman lawyer, “jura in re aliena” that is to say, rights over subjects of which the property or dominium was vested in another or others. Such fragmentary rights or portions of the whole rights or bundles of rights called dominium, were given the name of servitudes because subject to a sort of slavery, as it were, for the benefit of the dominant owner or the person entitled to exercise those separate rights over it. The term servitude, however meant and included something more than the duty or obligation resting on the owner or occupier of the servient tenement, and had a wider application in Roman, than the term easement usually has in English law; for it was used also to express in jus servitutis, or the right corresponding with the duty the jus in re aliena, whilst the term easement is generally used to express the right alone, and it included profits-a-prendre. The servitudes, or servitudes relating to immovables, and praedial Servitudes were called Rural or Urban , according as they related to land or buildings wherever situated. For example, a rural servitude meant a right of way for man, a right of passage for animals, watercourse, etc. As an easement can be acquired by uninterrupted enjoyment of the right for a particular period of years, so, in Roman law, a title to a praedial Servitude could be established in Roman law by uninterrupted enjoyment for a long period of time. The easement rights and corresponding obligations have almost always arisen either as local or general customs or otherwise, whenever ownership of immovable property is recognized, for easement rights and obligations are inevitably associated with the enjoyment of immovable property. In English easements first made their appearance as Danish and Saxon customs and after the Norman Conquest become largely impresses with the rules and ideas of Roman law and through a few centuries of development at the hands of English Judges grew into a well defined and substantial body of law. This is the common law of easements which, with only the statutory modification introduced by the English Prescription Act of 1832 in now administered by the Courts in England
    Local Origins: It seems clear that easement were know and recognized, by Local Law, that is to say, Hindu and Islamic Laws. As to Hindu Law, “in Halhed’s Gentoo Law, p. 162”, which is a translation of a compilation of the ordinances of the pandits, made under the direction of Warren Hastings, between 1773 and 1775, it is laid down that ‘if a man hath a window in his own premises, another person having built a house very near to this, and living there with his family hath no power to shut up that man’s window; and if this second person would make a window to his own house., on the side of it, that is, towards other man’s house, and that man at the time of constructing such window forbids and impedes him, he shall not have power to make a window. If the drain of a man’s house hath, for a long series of years, passed through the building belonging to another person, that person shall not give impediment thereto. Many other species of servitudes are referred to in the same book. As regards Islamic Law, reference to the Hedaya, Hamilton’s Edition, shows that a right in the nature of an easement is acquired by one who digs a well in waste ground, viz., that no one shall dig within a certain distance of it. So as to disturb the supply of water. Rights to the use of water for the purpose of irrigation are recognized and defined in the same work. The same work mentions the right to discharge water on the terrace of another and recognizes a claim of servitude. The British obtained military control over the territories part by part, finally assumed the political sovereignty over the whole of the country, and took upon themselves the responsibility of establishing civil administration throughout the length and breadth of British-India. The Courts which the British had establish in the country to dispense justice in civil matters began experiencing some difficulty in finding out the proper system of law to apply when questions of rights like easements arose for determination as they would certainly do in a country where private property in land and houses had existed beyond historical memory. No doubt, there have been sporadic references to easement rights like the right to light through a window and some more in the original Hindu and Muslim scriptures and more frequently in the textbooks compiled by Englishmen in consultation with the Hindu and Muslim scholars of the day. But is most matters pertaining to easements the actual customs in force in the country differed so widely from place to place and were so difficult to precise determination even in any single locality that it become recognized at a very early stage that no indigenous legal system would yield any rules that the Courts in the country could with advantage administer. The Local Courts in the back upon the common law of easements in England. The common law of easements which had centuries of growth behind it in a community originally feudal but subsequently industrial and took shape and from in the closely reasoned and elegantly worded judgments of the learned judges of England seemed admirably to serve the purpose of furnishing a body of rules suitable to be administered in the local courts. Though the conditions in the country differed in several respects from those in England, the law of property in the country was, if anything, simple than the law of property in England, and the common law of easements that was interwined in the highly complicated law of property in England did not fail in the local conditions.
    Preamble: The preamble of a statute is a preparatory statement at its beginning following the title and preceding the enacting clause, explaining or declaring the policy and purpose, the reasons and motives statute. AIR 1958 SC 956. The preamble is a good means to find out the meaning of the statute and, as it were, a key to open the minds of the makes of the Act and the mischiefs which they intended to redress. AIR 1956 SC 246. The preamble is the key to the statute and affords a clue to the scope of the statutr.
    Act whether Exhaustive: The question is whether in matters not expressly covered by the Easements Act, 1882, can the common laws of England be applied. It arises mainly in connection with the acquisition of easements by lost grant which is a matter not dealt with in this Act. The preamble to the Act runs thus; “Whereas it is expedient to define and amend the law relating to easements and licences”. This wording clearly shows that the Legislature had in mind some pre-existing law of easements, with which it wanted to deal. In 1882 when the Act was enacted the law applicable was the provisions of Section 3, 26 and 27 of the Limitation Act, 1877 and the provisions of the English common law relating to easements. It was this law which the Act sought to “define and amend”. The intention was to amend the existing law, to make certain what was formerly vague, to cure what was defective and to give shape to the various rules constituting the law of easements. The words used in the preamble are “to define and amend and not to codify” or “to consolidate” and do not indicate an intention to repeal wholly all the law that was in force at the date of the enactment. The result is that though in places where the Easements Act is in force, the main body of the law of easements in the Act applies and so such of the common law as is not inconsistent with the Act also continues to apply. In the case of Rajrup koer v. Abdul Husain, ILR 6 Cal. 394, the question arose for consideration before the privy Council whether the claim to an easement by prescription which would fail under Section 27 of the Limitation Act, 1871, could be established by evidence of long user (lost grant). Holding that the easement could be so established the privy Council observed: Object of the statute was to make more easy the establishment of rights of this description, by allow an enjoyment of twenty years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements. But the statute is remedial and is neither prohibitory nor exhaustive. A man may acquire title under it who has no other right at all but it does not exclude or interfere with other titles and modes of acquiring easements.
    Illustrations: Easements Act gives illustration under may sections. These illustration were meant to serve the purpose of elucidating the meaning of the section. The illustrations make nothing law which would not be law without them. They only exhibit the law in action and show what its effect will be on the events of common life. They are the decision on the application of the law to give sets of facts. Illustrations attached to sections are part of the statute, AIR 1966 SC 605, and they are useful so far as they help to furnish some indication of the presumable intention of the Legislature. If the meaning of the enactment itself were doubtful a reference to the illustration in order to clear the meaning would be justified, but if there be any conflict between the illustrations and the main enactment, the illustration must give way to the latter. AIR 1924 ALL. 748. although illustrations are to be accepted as being relevant and valuable for the construction of the section, they merely exemplify the application of the rule contained in the section. They do not have the effect of modifying or extending the language of the section. An illustration does not exhaust the full context of the section which it illustrates but equally it can neither curtail nor expand its ambit, AIR 1956 SC 404, nor limit its operation.
    Act not retrospective: Act is not given a retrospective effect. In fact Section 2 of this Act expressly saves any right acquired before the coming into force of this Act. There is nothing whatever which would compel a court to apply the provisions of this Act to questions that arose of the suits that were filed prior to the year 1891 in either the Bombay, or the United provinces. ILR 14 All. 185. In the Bombay case of Chunilal v. Manishanker, I L R 18 Bom. 616, and the Allahabad case of Udit Singh. V Kashirm, ILR 14 All. 185, the facts arose before the year 1891 and therefore these cases where decided according to the common law of England, and not the Easements Act of 1882.
    Precedents: Decisions of Courts in areas where the Act is not useful in areas to which the Act Applies. AIR 1933 Oudh 69. It is not open in the country in those cases where the Easements Act applies to follow English decision subsequent to the Act. AIR 1942 Bom. 305.
    Adaptation and applicability of: The Act has been adapted and made applicable to the whole of Pakistan by the Adaptation of Central Acts and Ordinances Order, 1949. PLD 1967 Dacca 135. According to the case of M.A Naser v. Chairman Pakistan Eastern Railways, PLD 1965 Dacca 339, the provisions relating to restricted operation of Act as to territory was omitted by the Governor-General’s Order No.4 of 1949. The Act now applicable to whole of Pakistan.
    Essential features of Easement right: Easement right is singular and peculiar when examined with other rights available in Pakistan. Main features of easement right are following:
    (1) It is annexed, appended and appurtenant to property.
    (2) It is incorporeal in nature.
    (3) It is transferable under section 8, Transfer of property Act, 1882 and heritage under Succession Act, 1925.
    (4) It includes accessory rights under section 24 to secure full enjoyment of easement.
    (5) It is a benefit for dominant heritage and burden for servient heritage..
    (6) It is fractional right substracted from ownership right of servient owner.
    (7) It justifies commission of tort of private nuisance and can be used as a defence.
    (8) It is affirmative (to do something), negative (prevent doing something) and destructive 9to remove and appropriate).
    (9) It is acquired by grant, prescription, custom, necessity and acquiescence.
    (10) It can be clamed under section 33 by owner of any interest in dominant heritage.
    (11) It can be acquired under section 12 by owners, lessor or mortgagor.
    (12) Under section 17, Easements Act, it is restrictive of ownership rights of servient owner.
    (13) Acquiescence creates easement right and provides defence.
    (14) It can be revived after extinction.
    (15) It is valuable as its existence may add to value of dominant and devalue servient heritage.
    Easements Law compared with contract Law.

    1. Points of similarities: Easements law and Contract law are similar to each other in the following points:--

    (1) Both are part of Civil law of Pakistan.
    (2) In both intention is not relevant to liability.
    (3) In both parties are knows as plaintiff versus defendant.
    (4) In both proceedings are commenced through suit by filing plaint in Civil Court.
    (5) In both proceedings are commenced by civil procedure code 1908.
    (6) In both rights and duties can be compromised.
    (7) In both minor cannot sue and cannot be used.
    (8) In both remedy is by way of compensation through damages awarded by court after adjudication of suit.
    (9) Both are private civil wrongs.
    (10) Injunction can be issued to restrain breach of easement right or contractual right.
    (11) Both are codified.

    1. Points of dissimilarities: Easements Law and contract law are distinguishable on following points:--

    Easements Law Contract law
    (1) It relates to right and duty (1) It relates to right and duty of
    Appurtenant to land. A person who enters into
    Contract.
    (2) Passage of 20 years period (2) This condition does not apply
    Is essential for creation of to creation of contractual
    Prescriptive easement right right and duty.
    And duty.
    (3) Passage of 20 years period (3) Passage of three years
    Creates easement right and period extinguishes contractual
    Duty. Right and duty (Article 65)
    Limitation Act, 1908.
    (4) Rights and duties are fixed (4) Rights and duties are fixed by
    By Easements Act. Parties themselves who enter
    Into a contract.
    (5) Privity is not required for (5) Privity is essential for creating
    Creating easements right contractual right and duty.
    And duty.
    (6) Easement right is restrictive (6) It dose not involue such
    Of rights of owner of restriction.
    Another immovable property.
    Easement Law compared with Law of torts

    1. Points of similar: Easement Law and Torts Law are similar to each other on the following points:--


    (1) Both are part of Civil law of Pakistan.
    (2) In both intention is not relevant to liability.
    (3) In both parties are know as plaintiff versus defendant.
    (4) In both proceedings are commenced through suit filing plaint in civil court.
    (5) In both proceedings are regulated by civil procedure code 1908.
    (6) In both rights and duties can be compromised.
    (7) In both remedy is by way of compensation through damages are awarded by court after adjudication of suit.
    (8) Both are private civil wrongs.
    (9) Injunction can be issued to restrain breach of easement right or right under torts law.
    (10) In both necessity is relevant.
    (11) In both rights and duties are fixed by law.

    1. Points of dissimilarities: Easements law and torts law are dissimilar to each other on the following points:--

    Easements law Torts law
    (1) It is codified in easements (1) It is not codified.
    Act.
    (2) Minor cannot sue and (2) Minor can sue and can be
    Cannot be sued. Sued.
    (3) Easement right and duty is (3) Right and duty under torts
    Appurtenant to land. Law are personal.
    (4) Passage of 20 years (4) Passage of time distinguishes
    Creates easement right and rights and duties under torts
    Duty. Law is view of provisions of
    Limitation Act, 1908.
    (5) Easement right is restrictive (5) Right under torts law is right
    Personam and is available in rem available against
    Against particular servient whole world, and not against
    Owner. A particular individual.
    (6) Easement right is restrictive (6) It does not involve such
    Of rights of owner of restriction.
    Another immovable property.
    (7) Object confined to land. (7) Object extends to person,
    Reputation, property and
    Goods.
    Easement Law compared with criminal law.
    Points of similarities: (i) Easement law and criminal law are similar to each on followings points:--
    (1) Easement law is codified in easements act. Similarly, criminal law is codified in Pakistan penal code.
    (2) In both rights and duties are fixed by law.

    (2)Points of dissimilarities: Easements law and criminal dissimilar to each other on the following points:--
    Easements Law Criminal law
    (1) It relates to private rights. (1) It relates to public rights.
    (2) Intention is not relevant. (2) Intention is essential
    Create criminal liability.
    (3) Parties are knows as (3) Parties are knows as state
    Plaintiff versus state. Versus Accused.
    (4) Proceedings are commenced (4) Proceedings are commenced
    Menced through suit by by lodging fir or filling
    Filling plaint in civil court. Complaint and then challan in
    Criminal court.
    (5) Proceedings are regulated (5) Proceedings are regulated by
    By civil procedure code, criminal procedure code,
    1908. 1898.
    (6) Limitation Act, 1908 applies. (6) Limitation act, 1908 does not
    Apply.
    (7) Remedy is by way of (7) Remedy is by way of
    Injunction or damages. Imprisonment of accused
    After his conviction.
    (8) Rights and duties cannot be (8) Subject to provisions of diiyat
    Compromised. And Qisas introduced in PPC,
    Rights and duties cannot
    Generally be compromised.
    (9) Consent is a defence. (9) Consent is not defence.
    (10) Necessity may create (10) Necessity (jus necessitates)
    Easement right and duty. Has no application in criminal
    Law.
    (11) Death of parties does not (11) Death terminates criminal
    Terminate civil proceedings. Liability of the parties.
    Enactment—Rights of: The construction of flats was designed on a certain angles as required by the building control authority and distance between block of flats and plaintiff’s bungalow was 25 feet. Mere statement of the plaintiff as to his right being materially affected by such construction without stating in what manner and how his right was likely to be materially affected could not be accepted to prove blocking or interfering plaintiff’s right of light and air. PLD 1982 Kae. 425. The point whether a trespasser or unauthorized occupant could acquire the rights of easement was an arguable point for the purpose of grant temporary. 1982 CLC 49. The rights to light and air in respect of plaintiff’s houses stood nullified by prescription was user of another man’s land without any right till user was ripened into right by prescription. Until such a right was not intentionally abandoned it did not affect the right already acquired by prescription. RLJ 1981 SC (AJ&K) 49.
    Extinction of rights: Easement extinguished the moment same person becomes entitled to absolute ownership of whole dominant and servient heritage. PLD 1975 Pesh. 82.
    Jurisdiction: The jurisdiction of civil courts was not ousted in respect of disputes of easement right over the evacuee land. PLD 1970 Lah. 893.
    Nuisance: Substantial damages, nuisance or material physical discomfort was not caused to respondent as a result of removal air catcher by the appellant. The stoppage of light was not proved. The only partial stoppage of air causing no physical discomfort would not entitle the respondent to maintain a suit for injunction. 1933 CLC 198. Test for determining whether a particular building infringes the right of light and air was “whether obstruction complained of a nuisance”. The partial impairment of light and air might not be treated as infringement of the easements in facts and circumstances of a particular case. PLD 1982 Kar. 425.
    Right of privacy: The right of privacy or pardah should be specific, certain and continuous from the time immemorial. The right of privacy or pardah had to be pleaded and proved by evidence. The plaintiff’s failing to prove customary right of privacy in manner and according to principles laid down by superior courts not leading evidence to show observance of such right by members of his family, his community, and residents of his locality and on other hands his family shown to be not pardah observing plaintiff failed to prove customary right of privacy claimed by him. PLD 1882 Kar. 425.
    Easement of necessity—What constitutes: The easement of necessity arises only when a common tenement is partitioned or divided among the tenants and for beneficial enjoyment of his share, a tenant has got the right to pass over or to use the share of another tenant’s land which is called the easement of necessity. Simple, because a man is in rise to an easement of necessity. PLD 1959 Dacca 491.
    Action of nuisance to property: Every man is bound to use his own property in such a manner as not to injure the property of his neighbour unless he has acquired a prescriptive right to do so; but the law does not regard trifling inconveniences. Everything must be looked at from a reasonable point of view, and, therefore, in an action of nuisance to property the injury, to be actionable, must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. In determining that question, time, locality, and all the circumstances must be taken into consideration. PLD 1959 Dacca 891.
    Customary right of pathway: The reasonability of custom to be ascertained by period of inception. The question of grant or prescription by indeterminate body cannot arise. The right to pathways dependent on the use from time immemorial; open and uninterrupted along with consent, implied or tacit. PLD 1964 Dacca 52.
    Acquisition of right of easement: The continuous user for 20 years was sufficient to prove the right. The allegation in plaint of ownership of servient tenement, subsequently withdrawn, cannot defeat such. PLD 1958 Lah. 337.
    Tenant’s right of easement against his landlord: A tenant may claim a right of easement against his landlord if the easement exists and is appurtenant to land occupied by the tenant. PLD 1958 Lah. 337.
    Prescription- - right of user to be proved by claimant: Mere user for innumerable years doest not confer prescriptive right. The High Court not to interfere in such finding of fact in second appeal. The principles of the English law not applicable and the provisions of the Limitation Act, 1908, Section 26 to be satisfied in this behalf. PLD 1963 Dacca 201.
    Acquisition by prescription: Wall is dispute having super structure thereon from time immemorial. The super-structure belonging to defendant and his predecessors in interest and no objection ever raised by plaintiff or his predecessors. The defendant, acquired a right of support on wall by prescription. Whether defendant, utilized such right of support for the purpose of a wall or for a lintel. Made no difference. The guestion whether wall was property of on party or the other. Not relevant. PLD 1975 Lah. 479.
    Objection by neighbour: A neighbour can object to the construction of the building in his neighbourhood provided he is able to establish that his right of privacy, light and air will be disturbed and infringed. In absence of any authentic approved plan of building, it would be premature to hold easement of the neighbours had been protected. 1990 CLC 1842.
    Inchoate right: Inchoate right, so long as such a right remains incomplete and does not ripen into easement. Not protected by law. No action lies for infringement of such right. The squatter on Government land not acquiring easement rights under law, filing suit for injunction claiming easement rights against another squatter on adjoining land. The Government (as owner of land), a necessary party, suit, held, liable to dismissal for non-impleading of the Government and also for not having acquired easement rights by being in possession for the statutory period. PLD 1971 Kar. 701.
    Easement of necessity –claim for: According to the case of Muhammad Ilyas v. Muhammad Shafi, 1993 MLD 1677 (b), the easement of necessity could only be claimed when it was demonstrated before court that without enjoyment of that right, property for the benefit of with easement was being claimed, could not be used at all.
    Limitation Act: With mutual consent one can always enter upon the premises of another to repair and plaster one’s wall, but when the question of right comes in then it has got to be established like any other right. Such a right is based on the right of easement, and an easement can be acquired under Section 26, Limitation Act, 1908. PLD 1956 Lah. 781.

    1. Savings: Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or derogate from—

    (a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or other work constructed at the public expense for irrigation.
    (b) Any customary or other right not being a licence in or over immovable property which the Government, the public or any person may posses irrespective of other immovable property; or
    (c) Any right acquired, or arising out of a relation created, before this Act comes into force.
    Comments

    Scope: The opening part of this section indicates that the easements act repeals nothing by implication. The world ‘law’ in this section means statutory law, as there can be repeal of statutory provisions only. There is no provision in the act now which “expressly repeals” any other statutory provision, though the original section 3 did expressly repeal sections 26 and 27 of the Limitation act, 1877 and the definition of easements contained therein. The section does not permit repeal by necessary implication. So far as the common law is concerned, it is displaced by the act to the extent its provisions specifically cover the subject, but in matters in respect of which the act is silent the common law continues to apply even in areas to which the act applies. The important practical consequence of this doctrine is that were prescriptive enjoyment has ceased for more than two years before the filing of the suit and therefore, under section 15 of this act, fails to confer an easement, it is still open to the party to claim and establish the easement by the common law method of lost grant inferred from immemorial user having certain characteristics.
    Rights of Government over water: No right of easement can be acquired under the easements act in the regulation of supply of water by the Government for irrigation purpose. The ryot is entitled to be given such supply of water as is necessary and sufficient for the irrigation of his wet fields. But he has no right to insist that his supply of water shall come from any source than recognized by the Government, or that it shall come by a particular channel. He cannot prescribe against the Government for such right by user otherwise for any length of time. It is open to the Government to alter at any time the manner and method by which it supplies the necessary water to him. AIR 1937 Mad. 957. In Pakistan from time immemorial the Government has the right of regulating the supply and distribution of water from either natural or artificial source for the purpose of irrigating land. Sub-section (a) of section 2 of the act provides that the right remains, wholly unaffected by anything contained in this act. Perhaps there is hardly anything in the act that, by itself and by the mere coming into force of this act, would derogate inserted as a matter of precaution.
    Customary or other rights: Section 2 (b) saves customary rights and public rights from the operation of the act, i.e,. from the acquisition of rights of easements is respect of them. To the claim of a customary or public right the Easements act has no application. Customary rights are rights partaking of some of the characteristics of an easement, but are not easements in the proper sense. Customary rights are not appurtenant to a tenement but exist in gross; that is, they are not for the beneficial enjoyment of a dominant heritage (piece of land or building) but exist for personal benefit. Moreover, generally speaking, customary rights are not in favour of an individual but are in favour of a group like inhabitants of a certain locality or village. Customary rights are to be distinguished from public rights which every member of the public possesses by virtue of his capacity as member of the public. AIR 1923 Cal. 622. A customary right is not an easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to a particular persons while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal wit it. It expressly excludes it from its scope and purview. ILR 1981 Pat. 133.
    True character of a customary right: A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law the custom prevails. But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. AIR 1968 SC 281.
    Distinction between customary and customary easements:
    That there is a vital distinction between these two claims is very well recognized. Custom governs both of them for it is custom which gives rise to a right to property as a customary easement. A custom is a rule of conduct, which is observed by the persons concerned spontaneously, without the sanction of any express provision of the law, because it has been uniformly observed by the community for a sufficiently long period of time. Thus the aggregated repetition of the same fact or action hardens into a custom by efflux of time and becomes widely and well recognized as a rule of conduct governing all concerned. So a custom can give rise to a right as well as to an easement. There is, however, a vital difference between the two. Easements Act, 1882, deals with customary easements. It refers to customary rights as well, but that is for the purpose of making it abundantly clear that while the act governs the former, it has no concern with the latter. Thus while section 4 of the act defines “an easement” as a 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 our upon or in respect of certain other land not his own, and section 18 of the act, deals with customary easement and provides that it may be acquired by virtue of a local custom. It would thus appear that a customary right is so vastly different from a customary easement that the Easements Act does not at all deal with it and, on the other hand, expressly excludes it from its scope and purview.
    Customary right—Proof of: Custom to be upheld in law as a right must be immemorial in origin, certain and reasonable in nature and continuous is use. A custom being in derogation of the general rules of law must be strictly construed and proved. The requisites of a custom are that it should be ancient, and invariable, uniform, reasonable, not immoral, certain and consistent. It is by means conclusive against a claim to customary right that the practice should have begun by permission or agreement but it must be shown to have continued in such circumstances and for such a length of time that it has come to be exercised as of right. AIR 1943 PC 111.It is of the essence of special usages modifying the ordinary law that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. AIR 1964 SC 118.
    Not being a licence: Licences are specifically dealt with in the Easements Act in Chapter VI. Though “a licence” may be included I “other rights” in Section 2 (b) it has been excluded from the operation of the operation of this section with the result that a licence is not saved from the operation of the Act.
    Rights existing before commencement of Act: As the Act is not retrospective, naturally pre-existing rights are unaffected by it. But still sub section (c) of section 2 expressly saves rights already created, from the operation the provisions of the act. In effecting the savings the subsection (c) of section 2 goes further than that, it excepts any rights arising out of a relation created before the act came into force, that is to say it is enough that the legal relation out of which rights arose came into existence prior to the act, and though such rights arose subsequent to the act, they would be saved from its operation. On this principle a licence granted seventy-eight years prior to 1935, was not governed by Easements Act. AIR 1934 All. 336. The language of sub-section (c) of section 2 is though wide enough to save a right to revoke a licence by paying compensation from the application of section 60 of the act, if such right is acquired before the act came into force. AIR 1934 All. 517.

    1. Construction of certain references to Act, XV of 1877 and Act, IX OF 1871: All reference in any Act or regulation to sections 26 and 27 of the Limitation Act, 1877 (XV of 1877) or to sections 27 and 28 of Act no. IX of 1871 shall, in the territories to which this act extends, be read as made to sections 15 and 16 of this Act.

    Comments
    Object of section: In several other statutes occasional references has been made to easements and these references, if prior to 1882, would naturally be made to the relevant sections of the Limitation Acts that were then the statutory part of the law of easements. As these sections stand repealed in territories where the easements act applies it is necessary to provide that references in other statutes or rules to the sections of the Limitation Acts dealing with easements shall in territories where the act applies be read as references to the corresponding section of the easements act, 1882. By the saving contained in section 2, any reference to easements in other statutes continues in force after the passing of he easement act as before. Section- 29 (4) of the Limitation act, 1908 make the provisions contained is these acts relating to easements inapplicable in territories to which the easements act, 1883 may be extended. This section achieve with respect to the 1908 act what section 3 of the easements act achieves with respect to the 1871 acts.
    Reference to easements in other acts: Following are the reference to easements in other acts:--
    (1) Canal & Drainage Act, 1872: Section 8 (h) of the above act provides for compensation to be paid by Government in respect of damage caused to watercourses, or the use of any water to which to any person is entitled under the Limitation Acts, 1877, part IV (with which, part Iv of the Limitation acts, 1877, 1908 corresponds). Clause (c) of the same section provides how are amount of such compensation is to be determined. Section 32 (b) provides that Government would not be liable to pay compensation for damage caused by an act beyond Government’s control.
    (2) Specific Relief Act, 1877: Section 52 to 57 of this act lay down the principles governing the issue of injunctions.
    (3) Transfer of property act, 1882: The act was passed contemporaneously with the easements act. Section 6 (c) of this acts lay down that no easement can be transferred apart from the dominant heritage. This is merely affirming that no easement can exis in gross. 34 IC 450 Cal. 1916. section 6 (c) refers to a mere transfer of an easement and not its creation by grant. Release in favour of the servient owner is not a transfer within the meaning of section 6 (c).ILR 35 Cal. 889. Section 8 of the transfer of property act provides that unless a different intention is expresses or necessarily implied the transfer of any immovable property carries therewith the transfer of easements thereto appurtenant. Exactly the same effect is secured by section 19 of the easements act.
    (4) Land acquisition act, 1894: Section 3 (b) of this act provides that for purpose of this act, a person shall be deemed to be interested in land if he is interested in an easement affecting the land. Section 3 (b) of this act includes within the meaning of the term ‘person interested’ any person who possesses an easement over the property to be acquired. In making the valuation the easement is taken into account and provided the dominant owner gives proper notice of his easement and takes other necessary steps, he receives compensation in money for loss of his easement caused by acquisition compensation in money for loss of his easement caused by acquisition by Government of the servient tenement freed of all easement rights. AIR 1936 All. 879. But acquisition will not extinguish customary or public rights.
    (5) Limitation act, 1908: Section 26 of the Limitation act of 1908 provided for the manner and period of prescribing for an easement and section 27 dealt with the contingency when the servint tenement happened to be in possession of a lessee. Articles 36, 37, 38 and 120 of Schedule I would govern the cases of claims of compensation for infringement of easements. Article 36 deals with general malfeasance and non-feasance and gives a period of two years within which suits falling under it must be brought. Article 37 dealt with the obstruction of a way or a watercourse and Article 38 deals with diversion of a watercourse. Articles 37 and 38 give a period of three years within which to bring a suit falling under them. Article 120 is residuary Article providing a six year’s period of limitation.
    (6) Civil procedure code, 1908: Rules 1 to 5 of order XXXIX lay down the procedural details about the issue of interim and temporary injunction.
    (7) Pakistan penal code, 1860: Section 141 of the Pakistan penal code defines an unlawful assembly. In the list of illegal objects it includes the show and use of force for depriving the rightful holder of the enjoyment of an immemorial right, which term would include easements and licences. It would also include natural rights, riparian rights, irrigation rights, non-appurtenant profits-a-prendre and non-appurtenant customary rights. It may be noted that the rights of way and the rights of use of water are specifically mentioned in section 141 of the Pakistan penal code.
    Criminal procedure code 1898: Sec. 145 of this code prescribes the magistrate concerned when dealing with disputes concerning easements right of use of land or water. The section provides that whenever an executive magistrate is satisfied. From the report of a police officer or upon information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in dispute to attend his court in person or by pleader on a specified date and time and to put in written statements of their respective claims. The expression “land or water” has the meaning given to it in sub-sec. (2) of section 145, Cr. P. C. According to the latter provision the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land and the rents, or profits of any such property. The magistrate on perusal of the statement, hearing the parties and receiving all such evidence that may be produced, decide whether such right exists and if it is found that such right exists, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order of the removal of any obstruction in the exercise of any such right. The powers of a magistrate under section 145, Cr. P. C are discretionary and he is not bound to institute proceedings under that section in respect of a dispute contemplated by it. AIR 1926 LAH. 550. If he choses to exercise his discretion and proceeds under section 144 of the code of criminal procedure are also pending. ILR 1936 Sind 147. It is open code of criminal procedure, against the parties under section 144 of the code of criminal procedure 1898, especially if an enquiry into such dispute would involve investigation into complicated questions relating to the title of the parties. ILR 29 Mad. 97.

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