Who can prescribe an easement

[vustudents]

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Who can prescribe an easement

Section 12, easement act provides that an easements may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the lessor. One or more co-owners, with or without the consent of others, can acquire as easement for the beneficial enjoyment of the common property.
(1) Fluctuating body of persons: The acquisition by prescription must be by a definite person or persons either natural or juristic, a fluctuating and uncertain body like the inhabitants of a village cannot acquire one. AIR 1926 Mad. 625. An indeterminate and fluctuating body of persons like the villagers of three villages cannot prescribe for an easement. AIR 1966 Mani. 18. The claim to right of way by villagers of a village two are part of the public can be established only by custom and not by prescription. AIR 1974 Ori. 211.
(2) Joint owner: A coparcener can acquire a prescriptive right of easement to flow water over coparcenary land. AIR 1967 All. 527. But it was held in the case of M. Nageswara Rao v. S. Ramchandra Rao, AIR 1973 AP 86, that a co-owner cannot acquire an easement in or over the joint property. The second paragraph of section 12 permits one or two or more co-owners to acquire an easement over a third person’s property for the beneficial enjoyment of the joint property.
(3) Tenant and landlord: The question whether a tenant can obtain in Pakistan an easement against his landlord or against another tenant of his landlord has not been free from difficulty. In England the position is quite clear. The possession by the tenant is in law the possession of the landlord and accordingly a tenant could no more prescribe against his landlord against himself.
Against whom can an easement be prescribed: Two things appear from section 4, the definition section - -
(i) the owner or occupier of land can acquire an easement over other land not his own; and
(ii) servient owner means the owner or occupier of the servient heritage.
From this it follows that- -
(a) the owner or occupier of the dominant heritage must be a person different from the owner or occupier of the servient heritage; and
(b) an easement can be acquired against the owner or occupier of the servient tenement.
Further since under section 10 a lessor and a mortgagor can grant an easement, it would appear than an easement can be prescribed against them. They are also the owners of the servient tenement. From section 16 it appears that if the servient heritage is held by a lessee for a term of years exceeding 3 years the time of the enjoyment of the easement during this term is to be excluded in computing the prescriptive period. This indicates that an easement cannot be prescribed against a lessee. Section 12, third paragraph prohibits a lessee from acquiring, for the beneficial enjoyment of his own property, an easement in the demised, property as against his landlord. AIR 1951 Cal. 572. Essential requisite of prescription is that it must be acquired against specific persons. AIR 1915 Mad. 217. In the case of B. N. W. Railway v. Muneshwar Ram, AIR 1927 All. 428, it was held: Easements act does not contemplate any acquisition of an easement only against an occupier and not against an owner. An easement is acquired in the land and not against one or more of the persons interested in the land. As section 15 of the act, states that the right acquired by prescription shall be absolute, it is not possible to hold that such a right should exist only against the occupier and not against the owner. If the right is absolute, it must be a right in land itself, and an absolute right against all persons connected with the land whether as owner or as occupiers. No doubt in the case of a usufrutuary mortgage under certain circumstances a third person may acquire a prescriptive right both against the mortgagee as well as against the mortgagor. But where the act done by anybody is traceable to permission from the mortgagee either express or implied, no such prescriptive right can be acquired AIR 1927 Mad. 73. The ordinary rule no doubt is that a prescriptive right cannot be acquired by one tenant against another tenant of the same landlord. A tenant cannot acquire a right under section 15 against his landlord. The claim of right of an easement by one tenant against another tenant under the same landlord is permissible on the basis of an implied grant but not on the basis of prescription. AIR 1978 Cal. 425. A tenant cannot acquire a prescriptive right of easement in land or well belonging to the landlord but he may claim a right of easement on the basis of immemorial user. AIR 1975 Raj. 10. A right of way, except by way of easement of necessity, cannot be claimed or enforced in any manner other than as prescriptive right, be it against the owner of the servient tenement or against a trespasser. AIR 1960 Mys. 317.

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