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INTRODUCTION
As urban areas as well as rural ones are seeing a wave of developmental activities, new constructions are a norm and it is often seen that some other owner constructs his property in a manner which creates disturbances for us like problems of drainage in rainy season, hindrances in approach road to our homes etc. Furthermore what’s generally seen is that despite repeated requests the other property owner does not mend his ways and constructs his property in a manner that creates problem for us. But can we do something about it, as whatever that person is doing is on his own property, and not ours?
In this situation Right of Easement comes to our rescue. Easement is a right which a person has over the property of another so that he can enjoy his property better. The property which has such right over another is called Dominant Tenement and the property over which such right exists is called Servient Tenement. The owner of Dominant Tenement can ask the owner of the Servient Tenement to construct his property in a manner so that no disturbance is caused to him and if the owner of Servient Tenement does not adhere to such demand then the owner of Dominant Tenement can go to the Court to stop such construction. Therefore this burden of Easement is always there on the Servient Tenement and one should purchase a property only after ensuring that it is not a Servient Tenement.
The case we are going to discuss today is an excellent example as to how property owners can prevent the mischief of the owner of the adjacent or nearby property and how can they prevent them from raising illegal constructions.
Brief Facts
A started constructing a boundary wall on a passageway which though is on A’s property but was also used by B, who is the owner of the adjacent property to reach a well. B requested A not to build the wall as then B will not be able to reach the well through this path. To this the answer of A was that as there is an alternate path to reach the well, B can use that. As none of the party budged, the case went to the Court where B requested the Court to stop A from erecting the boundary wall.
At first blush it appears entirely absurd as to how a person can be stopped from constructing a wall on his own property (of course we are assuming that he is not breaching any municipal law). This becomes even stranger as B himself is admitting that A is the owner of the property over which he is constructing the boundary wall. Furthermore B is also admitting that there is an alternate path to reach the Well. So on what grounds B can stop A from building the boundary wall?
To understand the above argument of B, there is a need to have some hindsight of the facts on the basis of which A and B got their respective properties. B’s husband and the person who sold the property to A (let’s say C) were brothers who partitioned their ancestral property vide a Partition Deed. It was written in the Partition Deed that the C will always allow B’s husband to pass through the pathway. Now after partition, C sold the property to A and meanwhile B’s husband also died. So now the rights of the husband devolved on B, as she is the wife and therefore it is the contention of B that she can use the passageway/lane forever.
What The Law Says
This right of passage through another’s property is called Easement which is defined in Indian Easement Act, 1882. Easement is a right which a person has over other person’s property so that he can enjoy his property better. A person does not get right of easement in a single day and he should be enjoying this benefit over a particular period of time so that he can claim easement as a right. If this condition is satisfied then he has a right to the said benefit throughout his life and he can stop the owner of the other property from denying this benefit to him despite not being the owner of the other property.
This is complicated enough, so let’s understand by way of an example. Let’s say you have a property which is one storey high and in which you are living for more than 40 years. Let’s assume that there is only a park and no building in front of your house and therefore you constantly enjoyed sunlight on your roof for a period of 40 years. Now if a private builder gets a park or a piece of land (this often happens under Land Acquisition Act, 2013 whereby the Government acquires a land and gives it to private parties on lease in order to develop it) and start erecting a building which is Four (4) storeys high. Now of course if a 4 storey building is erected just in front of your house you will not be able to enjoy the sunlight as you previously did as your house will always be in the shadow of that 4 storey building.
So what are your remedies? In this case you can go to Court to stop that person from erecting such construction as Indian Easement Act, gives you the right to enjoy your property as you previously did and enjoying sunlight on your property is one such right. Same are the rights of passage etc.
Coming back to the facts of the case, the contention of A is that the Partition Deed gives the right of passage to B’s husband as an easement of necessity (Section 13)which essentially means that B can only enjoy the pathway till there is no alternate path to reach the Well. But as now B can reach the Well through the some other path also, B is not entitled to this right of easement now . But B’s contention is that the right conferred by the Partition Deed is an Easement by Grant which means that the right of using the pathway to reach the Well is an independent right and it does not depend on the existence of an alternate path.
The difference between an Easement of Necessity and Easement by Grant can be explained in this way. Let’s say in the Partition Deed the right of passage to B’s husband was given on the ground that there is no other path available through which the Well can be accessed. In this case this right will be called Easement of Necessity. In such a case, if tomorrow B could get a different way through which he can access the well then the right of B to go through the pathway is finished because Section 41 says that the easement of necessity is determined on the very same day when necessity of the easement is not there.
But if the right of passage was given to the B’s husband not on the ground of necessity but in order to equally divide the property and hence to give equal right in the property and therefore the parties enter into a contract (which herein is called the Partition Deed) recognising this right of a brother/sister/sibling, then this right is permanent and this permanency in the user does not end, even if an alternative path is available.
Now the Partition Deed clearly stated that B’s husband & C have the right to access the passage despite only C being the owner of the passage which shows that it is an Easement by Grant and not of Necessity as the parties themselves entered into a contract by their own wish to give the other party the said right and therefore they cannot extinguish it at a later date and as A bought the property from C, he is also bound by these terms of the Partition Deed.
Conclusion
If A would have been aware that the property was a Servient Tenement and he could not stop B from approaching the Well in future, he certainly would have purchased the property for a lower price than he actually paid. Therefore it is essential to know your rights both from the perspective of the purchaser- to know the true value of the property and to save yourself from future embarrassments and from the point of view of a person who has an independent right- to save yourself from the mischievous acts of the adjacent or nearby property owners.
Also when someone enjoys some benefit over a property for a substantial period of time, then it is understandable that such long use of the benefit is not disturbed by some other person, deliberately or otherwise. There is another reason to prohibit someone from raising an illegal construction as when the full enjoyment of a property is disturbed it will not be sold at a price which it could fetch without such illegal construction. Therefore property owners should beware that they have a right to enjoy their property to the fullest and if someone creates any hurdle in that enjoyment they can approach the Courts of Law in India to exercise their such right.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India