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    Word Icon 35px Jpg.ashx Rights to enjoyment without disturbance

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    Rights to enjoyment without disturbance
    The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person.
    A, as owner of a house, has a right-of-way over B’s land. C unlawfully enters on B’s land, and obstructs A in his right-of-way. A may sue C for compensation, not for the entry, but for the obstruction.
    Owner or occupier: As an easement is a benefit attached to the dominant tenement, and not a personal right, the party in possession of that tenement would be entitled to enjoy the easement. A person who is not the owner of a house but is an occupier of the rooms to which obstruction to light and air is alleged is entitled to claim easement rights. AIR 1958 Ass. 83. Thus the following persons may claim enjoyment of the right of an easement- -
    (a) the lawful owner of the dominant heritage;
    (b) the lessee or tenant of the premises;
    (c) a mortgagee in possession; and
    (d) a licensee in possession.
    It appears that a trespasser on the dominant heritage is not entitled to enjoy the easement as he does not derive any right or title in the dominant heritage from the owner and has not acquired and right of his own.
    Enjoyment of easement: Section 32 speaks of enjoying the “easement”. What the owner or occupier of the dominant heritage is entitled to enjoy- - and enforce enjoyment of - - is the perfected easement whether acquired by grant, prescription of local custom. This right he is entitled to enjoy without disturbance by the servient owner or by any one else. The section does not talk of what are sometimes called ‘inchoate easements, that is, easements which have not become absolute as they have not been enjoyed for the prescriptive period. The owner or occupier can continue to enjoy the right so long as the servient owner does not obstruct it. Once the servient owner obstructs the ‘inchoate easement’, the easement comes to an end and there remains no question of enjoyment it any further. According to the case of Abdur Rahman Mughal v. Addul Wehid, 1984 SCMR 791, the plan of disputed Gali showing the marked portion in extension of houses of petitioner and respondent was not shown in possession of any one of parties to exclusion of other. Ventilators opened towards Gali of houses of defendants. Water spouts, Pushtas and Gali in use by public since ages and no one ever asserted claim over said Gali in before. Responded could not, therefore, be restrained from opening door and water outlets in such Gali in circumstances. Petition for leave to appeal was dismissed.
    Inchoate rights: The expression ‘inchoate rights’ is often used to denote that fact that the owner of a tenement has been enjoying a right of easement over another tenement for less than the statutory prescriptive period of twenty years. Strictly speaking, an enjoyment for less than the statutory period gives rise to no sort of right or title whether. It is wrong to think to such an enjoyment as aright in the process of acquisition, for such enjoyment only promotes a chance of the acquisition of the whole right, and dose not in any sense create a partial rights. AIR 1916 Mad. 801.
    Impleading servient owners: Under order 1, rule 9 of C.P.C., though all the servient owners are proper parties in a suit for an obstruction to an easement by some of them, those who have not obstructed are not necessary parties. It is expressed in the case of Amritnath Biswas v. Jogendra Chandra, AIR 1924 Cal. 368, that if there is some good reason for omitting to implead a servient owner, the omission would not necessarily be fatal to the suit. In decided this case the earlier case of Madan Mohan v. Shasi Bhusan, 31 IC 549, was relied on wherein the servient owner who had not obstructed was not impleaded as a party. The principal is clearly affirmed in the later case of Kedaruddin v. Samser Math, AIR 1937 Cal. 355, where the absence of a servient owner who did not resist the plaintiff’s claim to an easement was not a ground for non-suiting the plaintiff.
    Alternative pleas: Where the plaintiff has claimed the right as an easement but does not put in the alternative to allow the plaintiff to argue and establish the claim of a nature right would cause surprise to the defendant. In the case of Mahendranath v. Nobichandra, 57 IC 504, the plaintiff was not allowed to make out a new case of natural right because firstly such a case could not be sustained on the allegations of facts in the plaint and secondly even if the case was allowed to be argued on the basis of a natural right such a right was not established. It is clear that this case is no authority for the proposition that the plaintiff who claims an easement which subsequently turns out to be a natural right cannot be allowed to succeed on the basis of a natural right.
    Mandatory injunction: Respondent prayed in his suit against appellant for damages and relief of mandatory injunction directing appellant to demolish a well constructed by later behind his plot which obstructed light and air and flow of water of gutter line on back side of shop of respondent where a window opened. Trial court reaching conclusion that by construction raised by appellant at respondent’s plot not only enjoyment of light and air by respondent had been obstructed but aforesaid construction had also obstructed flow of water in gutter line which existed on back side of his shop. Suit was, however, dismissed on ground that it was barred under Ss. 4 &9, Civil procedure code, read with Ss. 77 & 78 of Municipal administration ordinance, 1960 and that same was not maintainable under S. 56 of the specific relief act. Appeal filed by respondent was allowed by first appellate court and suit decreed on ground that no provision of law was cited on which suit was not maintainable. Appellant-defendant had made only a general denial of allegations and no specific denial of easement rights of plaintiff was made, held, both courts below on basis of evidence on record reaching conclusion that construction raised by appellant did obstruct enjoyment of light and air by respondent through window which existed on back side of his shop. Both courts concurrently, held that gutter line which was in existence on back of shop of respondent was also closed obstructed by wall raised by appellant. Was unable to point out any misreading of evidence of perverse application of evidence by courts below. Dismissal of suit by trial court as not maintainable was not at all proper and legal in circumstances. Provisions of law referred to by trail court for arriving at conclusion that suit was barred were wholly misconceived as none of these provisions barred institution of suit. No case, was, however, made out for damages. Interference declined by high court, in second appeal. 1989 C L C 330. It seems that a customary and prescriptive easement can be pleaded in the alternative. But where the plea of prescriptive easement was abandoned in the court below it could not advanced before the appellate court. A I R 1943 Oudh 83.

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