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Thread: Rules to be applied when evidence of intention And purpose is not available

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    Word Icon 35px Jpg.ashx Rules to be applied when evidence of intention And purpose is not available

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    Rules to be applied when evidence of intention And purpose is not available


    (1) Right-of-way- - clause (a): Clause (a) provides that the extent of the easement of way is confined to the kind of right-of-way as acquired and does not include any other kind of right-of-way. As stated earlier, a right-of-way is limited by certain incidents, such as (i) purpose, (ii) time, (iii) width of way, (iv) as to the persons who can pass, (v) the place from which and to which they can pass, and (vi) the direction of the way. When a right-of-way is restricted with reference to these incidents its extent remains so restricted. The extent of the right must be measured by the extent of the enjoyment proved in any particular case. It cannot be contended that if it is proved that the owner of a dominant tenement has a right-of-way over a servient tenement, there would be a presumption that that right is unlimited in its character so that the way can be used for all purposes and all times. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place and any expansion of the user or the purposes for which the way may have been used is not permissible. AIR 1947 All. 86.
    (2) Right to light or air acquired by grant- - clause (b): An easement to light and air can be acquired by a grant by the servient owner. The grant may be made by an instrument executed by the servient owner or by a will made by him. In the former case the easement comes into effect on the execution of the instrument and in the latter case on the death of the executant, clause (b) of section 28 provides that where the intention or purpose of the grant does not appear from the instrument or will or other evidence then the extent of the right to the passage of light or air shall be the quantity of light or air that entered the opening (window, door or other opening) at the time the easement came into effect but if the instrument or will itself contains provision regarding the extent of the light or air that is to enter through the openings on the dominant heritage then those provisions will determine the extent of the right and the rule in clause (b) will not apply. Usually, the instrument or will make provision regarding the extent of the right and the rule in clause (b) has to be resorted to in rare cases.
    (3) Prescriptive right to light or air—clause (c): An easement to light and air can be prescribed under section 15 by user for the requisite period. The right can be acquired only in respect of buildings and not open land. In the country the right can be acquired for the passage of light or air through a window, door or other opening but in England such a right cannot be acquired in respect of a door. AIR 1965 Mys. 292. Clause (c) of section 28 provides that the extent of the right to light or air obtained by prescription will be the amount of light or air which used to enter the opening during the whole of the prescriptive period. According to the case of Ibrahmbhae Adamali v. Fakhruddin Salehbhoy Tapal, 1985 CLC 158, a building was sub-divided in three plots, each sub-divided property having separate building. Three owners of sub-divided building agreed to separate drainage or to install separate or joint water connection or to put up partition wall between sub-divided portions. Such agreement, however, did not envisage use of passage of building as common access to all the three owners of adjoining building in their respective rear portions. One of sub-divided building was sold to a third party. Purchaser attempted to close gap between buildings. Such attempt led to disputed between purchaser and other owners of subdivided buildings. The plaintiff filing suit for declaration and mandatory injunction restraining the defendants from using open space of property as passage for access to rear portion of their buildings. The plaintiff and their predecessor-in-title always disputed rights of defendants and their predecessor-in-title to use open space of building as passage for going over to rear portions of building. During the period when matter was pending in court mere user of open space as an access to rear portion of building by tenants could not create any right of easement by prescription in favour of the defendants. In order to acquire a right-of-easement as an easement or any other easement or any other easement right by prescription it must be shown that such right had been enjoyed actually, openly, peaceably, without interruption by any person claiming title thereto as an easement and as of right for more then twenty years.
    (4) Prescriptive right to pollute air or water- - clause (d): As to the right to pollute water or air, clause (d) provides that the extent is determined by user at the commencement of the prescriptive period. That is to say, if the user of an easement of pollution has varied during the prescriptive period, it is just the initial user that that determines the extent of the right, and not any subsequent reduced or enlarged user. While under clause (c) the user during the whole of the prescriptive period has to be taken into account under clause (d) the user only at the commencement of the prescriptive period has to be considered. This clause (d) moreover serves the purpose of recognizing pollution of water or air as a proper subject-matter of an easement right, and therefore any difficulty in interpreting section 4 so as to the right of polluting water or air, and so logically a right to commit any other nuisance is set at rest. According to the case of Hashim Din v. Bahsir Ahmad, 1992 CLC 754 (b), the right of easement by prescription cannot be claimed through user for less than 60 years in ease of Government property.
    (5) Other easements—clause (e): Clause (e) applies to prescriptive easements other than those mentioned in clauses (c) and (d). Under clause (e) the extent of the easement in a particular case is not to be determined by the actual user by the dominant owner at any particular time but by the accustomed or customary user of such a right. Where the defendant had established a prescriptive right to discharge water used for washing of the floors of the new rooms on the second storey, on the plaintiff’s land and no further, held the right to discharge water used for washing pucca floors cannot be enlarged to include water mingled with fifth from latrines or refuse from the kitchen and the defendant illegally increased the burden of the servient tenant. AIR 1963 All. 121. The easement right of privacy cannot be stretched to oppressive lengths, protection for only those parts of a house can be secured with are usually utilized by females such as latrine, open bathing place for families, etc, extension of the right so as to cover other parts of the house also which are not generally used by females is not to be countenanced,, because this would make almost impossible the growth towns. AIR 1961 Ori. 155.


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