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Thread: Discuss and brief about Acquisition by prescription

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    Word Icon 35px Jpg.ashx Discuss and brief about Acquisition by prescription

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    Discuss and brief about Acquisition by prescription
    Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and wher a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years. The right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
    Explanation I: Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
    Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
    Explanation III: Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
    Explanation IV: In the case of an easement to pollute water, the said period of twenty years beings when the pollution first prejudices perceptibly the servient heritage.
    When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words “twenty years” the words “sixty years” were substituted.
    Illustrations
    (a) A suit is brought in 1883 for obstructing a right-of-way. The defendant admits the obstruction, but denies the right-of-way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitiled to judgment.
    (b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that a for a years of that time the plaintiff was entitiled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed for the right-of-way has not been enjoyed “as an easement” for twenty years.
    (c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right-of-way has not been enjoyed “as of right” for twenty years.
    Comments
    Prescription: Though the heading of the section speaks of “acquisition” the section does not provide for the acquisition or creation of easements. Prescription is not a mode of creating an easement but of establishing an existing easement. Prescription is aptly defined by Gale,1 to be a title acquired by use or enjoyment has during the time and in the manner fixed by law. Prescription is based on two elements, viz, - -
    (a) continuous user as of rights by the dominant owner; and
    (b) acquiescence by the servient owner.
    The purpose and object of section 15 is to convent what are inchoate easements into absolute easements. The section contemplates existing inchoate easement, and provides that after they have been enjoyed for the time prescribed and in the manner set out therein are easements become absolute. This process is known as prescription. Section 15 which provides for prescription is in three parts. The first part deals with the right to light and air, the seconed with the right to support and the third with the right-of-way and other easements. The following are four necessary requirements for the acquisition of absolute rights in respect of all these easements.
    (i) The easement must have been enjoyed peaceably;
    (ii) It must have been enjoyed as of right;
    (iii) The enjoyment must have been without interruption.
    (iv) The enjoyment must have been for 20 years. In respect of an easement mentioned in the third part of section 15 there is a fifth necessary requirement, that is, the easement must have been openly enjoyed. A suit to establish the right can be filed at any time after enjoyment of 20 years but if there is interruption in the enjoyment after 20 years, it must be filed within 2 years of the interruption.
    Applicability: Prescription can be had in three ways:
    (a) under section 15, easements act, 1882;

    1. Gale on easements, 14th Edn, P. 133.

    (b) under section 26, limitation act, 1908; and
    (c) by lost grant.
    Under (a) it can be had in territories to which the easements act has been extended; under (b) it can be had in territories were the easements act is not applicable; and under (c) where, in spite of long user; the case does not qualify under section 15 of the easement act or under section 26 of the limitation act.
    Enjoyment- -Explanation 1: It is not every kind of enjoyment of a right which can be taken into account for prescribing title under section 15. Explanation I restricts the scope of the word “enjoyment” for the purposes of prescription. It provides that the enjoyment of a right under an agreement with the servient owner is not enjoyment for the purposes of section 15- -
    (i) if the right has not been granted as an easement; or
    (ii) if the right has been granted as an easement but for a limited period; or
    (iii) if the right has been granted as an easement subject to a condition on the fulfillment of which the right is to cease.
    This explanation in section 15 of the act provides that where the exercise of an easement right has originated in or depended upon some agreement with the servient owner, the dominant owner’s rights are entirely determined by the agreement. The exercise of any rights which may or may not amount to an easement or easements, by the dominant owner has no prescriptive force, and is not capable of conferring a prescriptive easement.
    Peaceable enjoyment: The requirement of peaceable enjoyment in section 15 is the same as the requirement of the English common law that the enjoyment must be nec vi, that is, without force or violence. User is forcible if the claimant himself uses force to exercise his right or if the alleged servient owner clearly objects to the use whether by, for example, offering physical resistance or by resorting to legal proceedings. The expression ‘peaceable enjoyment’ means that the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 20 years expiring within two years of the suit, nor had he been prevented by the use of physical by the servient owner in his enjoyment. AIR 1916 Mad. 1001.
    Enjoyed as an easement: It is necessary for prescribing title under section 15 to every kind of easement that the right should have been enjoyed as an easement. The English common law also requires user of the right as an easement. Gale puts in these words: The enjoyment must have been an enjoyment of the easement in the character of an easement, distinct from the enjoyment of the land itself.
    Enjoyment without interruption: For prescription it is necessary that the enjoyment of user of the easement must be continuous and without interruption. Continuity of user is essential in order to establish an easement, for, unless satisfactorily explained, long intervals between the acts of user go far towards defeating the right. The period of non-user of an alleged right which will defeat s prescriptive claim has no fixed length. The user need not be constant, but where it has not been constant of the user was not been constant the evidence should show that the cessation of user was not due to the interference by the owner of the servient tenement. So long as there is continuity of user over some part of the servient tenement it does not matter that the precise mode of user is varied, at least if done with the acquiescence and knowledge of the servient owner.
    Enjoyed for twenty years: For prescription for any easement it is necessary that the right must have been enjoyed for 20 years or more continuously and without interruption. No presumption of 20 years enjoyment can be raised by proof of enjoyment for a lesser period. Section 16 provides that, in certain circumstances, the period of enjoyment when there is a person with limited interest holding the servient tenement is to be excluded in computing the prescriptive period. Under the English law prescriptive period cannot run during lunacy or minority. But in Pakistan section 15 of the act and section 26 of the limitation act lay down a clear and self-sufficient set of conditions under which an easement would be acquired by statutory of lunacy or minority do not avail. 31 IC 528 (Mad.) 1515.
    Change in mode and place of enjoying easement: Discharge of water from terrace. Originally easement exercise through there outlets. Dominant owner dismantling them and instead constructing nine outlets. Nothing to earmark 3 new outlets exactly corresponding old once. Plea of change is mode and place of enjoyment of easement not taken could not be allowed to be raised before Supreme court in appeal by special leave. 1989 MLD 1483.
    Adjudication necessary for prescription: A title to easement is not complete upon the completion of the statutory period of 20 years and however long the actual period of enjoyment may be no absolute and indefeasible rights can be acquired until the rights is challenged in some suit and adjudicated upon.
    absolute right: The sort of right accruing under section 15 to the dominant owner by enjoying an easement for twenty years and more is generally referred to as an inchoate right. No length of enjoyment by itself fives under section 15 an absolute right. The right becomes absolute only when questioned and decreed in litigation. The fifth paragraph clearly refers to a suit within two years of the institution of which the enjoyment of twenty years or more should have been brought down. Until and unless a suit is instituted either by the dominant or the servient owner, the provision of section 15 are not brought into play at all. If the dominant owner continues the enjoy an easement, the only efficacy of his continued enjoyment is the chance that it has of ripening into an absolute right if and when the right is contested in a law court. If somehow the enjoyment, whether its duration, ceases, and no suit is instituted within two years of the cessation thereof, the enjoyment has lost all efficacy for the purpose of acquiring an easement. This character of prescriptive enjoyment is sought to be expressed by term “inchoate right”. A title to easement is not complete merely upon the completion of the statutory period of twenty years and, however long the actual period of enjoyment may be, no absolute and indefeasible right can be acquired until the right is challenged in some suit and adjudicated upon. In order to establish the right when brought into question the enjoyment relied upon must be enjoyment for a period of twenty years ending within two years of the institution of the suit in which the right is disputed. 1957 All. WR (HC) 186.
    Right to light and air: Under the first paragraph of section 15 an easement of access and use of light and air can be prescribed only in favour of a building. It cannot be acquired in favour of an open space of ground [see section 17 (b) ]. The essential elements of prescribing this right are- -
    (a) peaceable enjoyment of the right;
    (b) enjoyment of the right as an easement;
    (c) enjoyment without interruption for 20 years.
    It is not required to be proved that the right was enjoyed openly or as of right. AIR 1921 Nag. 127. The connotations of these elements have already been dealt with earlier. A user of the building has no materiality whatsoever in the cases of the easement of light and air. Even a tenement which is vacant and unoccupied for the statutory period of 20 years or over can during the same period of non-occupation acquire easement rights over the servient tenement. AIR 1952 Nag. 103. According to the case of Abdul Ghani v. Ali Muhammad, 1983 CLC 1982, the substantial damage, nuisance or material physical discomfort was not caused to the respondent as a result of air-catcher by appellant. Stoopage of light was not proved. Only partial stoopage to maintain a suit for injunction.

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