Acquisition of Easements by Prescription in India: An Analysis of Section 15 of the Indian Easements Act, 1882

Acquisition of Easements by Prescription in India: An Analysis of Section 15 of the Indian Easements Act, 1882

Introduction

The concept of easements, forming a critical aspect of property law, pertains to the rights possessed by an owner or occupier of land over the land of another for the beneficial enjoyment of their own land. In India, the Indian Easements Act, 1882 (hereinafter "the Act") codifies the law relating to easements. Among its provisions, Section 15 stands out as it delineates the mechanism for acquiring easements by prescription – that is, through long, continuous, and uninterrupted use. The acquisition of such rights is often contentious, leading to extensive litigation. This article seeks to provide a comprehensive analysis of Section 15 of the Act, examining its constituent elements, judicial interpretations, and the challenges associated with establishing prescriptive easements in India, drawing heavily upon statutory provisions and relevant case law.

Understanding Section 15 of the Indian Easements Act, 1882

Section 15 of the Act provides the framework for acquiring certain easements through prescription. It specifies different requirements for various types of easements, such as those related to light, air, support, and rights of way.

Text and Scope of Section 15

Section 15, in essence, states: "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 or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where 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." (Purani Dhirajlal Amritlal v. Mehta Sankleshwar Aditram And Anr., Gujarat High Court, 1975). The section further stipulates that the said period of twenty years shall be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. If the property over which the right is claimed belongs to the Government, the period is extended to thirty years (Explanation IV to Section 15, as noted in DHIRAJBAI W/O TILAKCHAND SHAH and 1 ANR. v. BHIKULAL RAMDULARE GUPTA and 1 ANR., Bombay High Court, 2025 (*sic*)).

The Gujarat High Court in Purani Dhirajlal Amritlal v. Mehta Sankleshwar Aditram And Anr. (1975) clarified that Section 15 deals with the acquisition of the right of easement by prescription, and until the easement becomes absolute under this section, it cannot be an easement as defined under Section 4 (which contemplates a perfected easement). The expression "as an easement" used in Section 15 means a limited use by an occupier or owner of one land, in or upon certain other land, not his own. This was similarly observed in Shivpyari And Anr. v. Mst. Sardari (Rajasthan High Court, 1965), which emphasized that the definition of easement in Section 4 (a perfected right) does not fit exactly into the expression "as an easement" used in Section 15, which concerns the process of acquisition.

Core Ingredients for Acquisition by Prescription

For a right to mature into a prescriptive easement under Section 15, several conditions must be met. The Kerala High Court in Badariya Madrassa Committee v. Antony Robert Breganza (2006 SCC ONLINE KER 143), citing Krishnan v. Nanukuttan (ILR 1986 (1) Ker. 526), enumerated seven essential ingredients:

  • There must be a pre-existing easement which must have been enjoyed by the dominant owner.
  • The enjoyment must have been peaceable.
  • The enjoyment must have been as an easement.
  • The enjoyment must have been as of right.
  • The right must have been enjoyed openly (especially for rights of way and other easements).
  • The enjoyment must have been for a period of twenty years (or thirty years for government land).
  • The enjoyment for 20 years must have been without interruption, and this period must end within two years next before the institution of the suit wherein the claim is contested.

The Supreme Court in Justiniano Antao And Others v. Bernadette B. Pereira (Smt) (2005 SCC 1 471) similarly emphasized the stringent criteria, holding that the claimant must demonstrate peaceful, open, and uninterrupted use as of right for the requisite 20-year period. The Bombay High Court in DHIRAJBAI W/O TILAKCHAND SHAH (2025 (*sic*)) also listed similar requirements: the right must be certain, enjoyed, independent, and peaceably and openly as of right without any interruption for more than 20 years.

Key Explanations to Section 15

Section 15 includes several explanations that clarify its terms:

  • Explanation I: Clarifies that nothing is an enjoyment "as of right" if it is by virtue of an agreement with the owner or occupier of the property over which the right is claimed, and such agreement has been made in writing and for a term of years or other limited period.
  • Explanation II: Defines "interruption." It states: "Nothing is an interruption within the meaning of this section unless 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 authorising the same to be made." (Quoted in Palaniswami Naicker v. Chinnaswami Naicker, Madras High Court, 1967 and DHIRAJBAI W/O TILAKCHAND SHAH, 2025 (*sic*)).
  • Explanation III: States that suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption. (DHIRAJBAI W/O TILAKCHAND SHAH, 2025 (*sic*)).
  • Explanation IV: Relates to easements to pollute water and the period for government land. (DHIRAJBAI W/O TILAKCHAND SHAH, 2025 (*sic*)).

Judicial Interpretation of Essential Elements

"Peaceably and Openly Enjoyed"

The terms "peaceably" and "openly" are crucial. "Peaceably" implies that the enjoyment should not be contentious or by force (nec vi). "Openly" means the user should not be clandestine or by stealth (nec clam), ensuring that the servient owner has knowledge or the means of knowledge of the user. The Supreme Court in Justiniano Antao (2004) reiterated that the use must be peaceful and open. The Gujarat High Court in Purani Dhirajlal Amritlal (1975) stated the user must be "open, notorious, uninterrupted and adverse."

"As an Easement"

This requirement signifies that the right must be exercised over land not one's own, and in a manner consistent with the nature of an easement, i.e., a limited right of use, not an assertion of ownership. The Gujarat High Court in Purani Dhirajlal Amritlal (1975) noted that "as an easement" means "a limited use by an occupier or owner of one land, in or upon certain other land, not his own." The Rajasthan High Court in Shivpyari And Anr. v. Mst. Sardari (1965) also discussed this, pointing out that Section 15 deals with the acquisition process, and the term "as an easement" here refers to the nature of the user during this period.

A complex issue arises when acts of user are attributable to a mistaken belief of ownership. The Madras High Court in Subba Rao v. Lakshmana Rao (1925 SCC ONLINE MAD 282), considering Privy Council jurisprudence (Attorney General of Southern Nigeria v. John Holt and Co.), discussed the difficulty in denying an easement if the user was as of right for over 20 years, merely because the claimant mistakenly believed they owned the land. However, the general principle is that the user must be qua easement, not qua owner.

"As of Right"

This is perhaps one of the most critical elements, meaning the enjoyment must not be permissive (nec precario). It implies that the right is exercised without the permission of the servient owner. The Supreme Court in Justiniano Antao (2004) stressed this requirement. The Madras High Court in Kunjammal And Ors. v. Rathnam Pillai (1921) highlighted the importance of pleading that the user was "as of right" and not permissive. The Supreme Court in Krishna Narain Agarwal v. Carlton Hotel Private Ltd. (AIR 1969 SC 1105), as cited in A.C.JOSEPH v. BENNY JOHN (Kerala High Court, 2022), held that enjoyment "as of right" means the user must not be permissive (nec-precario).

"Without Interruption" and the Statutory Period

The enjoyment must be continuous and without interruption for the full statutory period of 20 years (or 30 years for government land). As per Explanation II to Section 15, an "interruption" involves an actual cessation of enjoyment due to an obstruction by someone other than the claimant, which is submitted to or acquiesced in for one year after the claimant has notice of it. This was noted in Palaniswami Naicker v. Chinnaswami Naicker (1967) and DHIRAJBAI W/O TILAKCHAND SHAH (2025 (*sic*)).

Crucially, this period of 20 years must be one ending within two years next before the institution of the suit in which the claim is contested. This means that if there has been an interruption that breaks the continuity, or if the enjoyment ceased more than two years before the suit, a prescriptive right cannot be established. The Kerala High Court in Badariya Madrassa Committee (2006) discussed a scenario where an obstruction four years prior to the suit, not removed, and no passage for vehicles within two years before the suit, would be fatal to the claim.

The Burden of Proof and Pleading Requirements

The burden of proving all the essential ingredients for establishing a prescriptive easement lies heavily on the claimant. The Supreme Court in Bachhaj Nahar v. Nilima Mandal And Another (2008 SCC 17 491) emphasized the fundamental principle of civil procedure that courts cannot grant reliefs not specifically pleaded. In that case, an easementary right recognized by the High Court without explicit pleadings was set aside. This underscores that a claim for easement under Section 15 must be clearly and specifically pleaded, detailing the nature of the easement, the period of enjoyment, and that such enjoyment fulfilled all statutory conditions.

The Supreme Court in Justiniano Antao (2004) also highlighted the need for categorical pleadings and evidence to establish a prescriptive right. The Kerala High Court in Badariya Madrassa Committee (2006), citing Ibrahimkutty v. Abdul Rahumankunju (1992 (2) KLT 775), stated that pleadings for an easement right must be specific and precise because an easement is a "precarious and special right." The Madras High Court in Perumal v. Ganesan (Deceased) (2017), citing C. Pazhamalai Pillai v. Chinnadurai, affirmed that one of the necessary ingredients is enjoyment without interruption, peaceably for 20 years as of right, which must be established by evidence.

Specific Categories of Easements under Section 15

Section 15 applies to various types of easements:

  • Rights of Way: These must be peaceably and openly enjoyed, as an easement, and as of right, without interruption for twenty years. The Allahabad High Court in Smt. Bailey And Another v. Rama Shankar Lal And Others (1975 SCC ONLINE ALL 178) dealt with a claim for a prescriptive right of passage where evidence of user and alternative access were considered.
  • Light and Air: Access and use of light or air to and for any building must be peaceably enjoyed therewith, as an easement, without interruption, and for twenty years. The Supreme Court in Chapsibhai Dhanjibhai Danad v. Purushottam (1971 SCC 2 205) considered a claim for easementary rights of light and air, among others.
  • Support: Support from one person's land or things affixed thereto, for another person's land subjected to artificial pressure or by things affixed thereto, must be peaceably received as an easement, without interruption, and for twenty years. The Madhya Pradesh High Court in Deo Kumar v. Kailash Chand And Others (2007) observed that an easement of support to buildings can be claimed by prescribing it under Section 15.
  • Other Easements: The section also covers "any other easement" which must be peaceably and openly enjoyed, as an easement, and as of right, without interruption for twenty years. This could include rights like pasturage, as discussed in Lachhi v. Ghansara Singh (1971 SCC ONLINE HP 34), though that case also involved distinguishing it from customary rights.

Distinctions and Nuances

Section 15 v. Easement of Necessity (Section 13)

It is important to distinguish easements by prescription under Section 15 from easements of necessity under Section 13 of the Act. An easement of necessity arises when a property cannot be used at all without the easement (e.g., a landlocked parcel). The Supreme Court in Sree Swayam Prakash Ashramam And Another v. G. Anandavally Amma And Others (2010 SCC 2 689) distinguished an implied grant of easement (related to Section 13(b)) from an easement of necessity and noted that the case of Justiniano Antao (which dealt with Section 15) was inapplicable as it pertained to prescription. The Bombay High Court in DHIRAJBAI W/O TILAKCHAND SHAH (2025 (*sic*)) explicitly stated that Sections 13 and 15 are independent provisions. The Gujarat High Court in Gopalbhai Jikabhai Suvagiya v. Vinubhai Nathabhai Hirani (2018) elaborated that an easement of necessity is limited to the barest necessity and extinguishes if an alternative access becomes available (Section 41 of the Act), which is not the case for easements acquired by grant or prescription.

Section 15 v. Customary Easements (Section 18)

Section 15 deals with private easements acquired by individuals. Customary easements, governed by Section 18 of the Act, are rights that inhabitants of a particular locality may have over land, based on local custom. The Himachal Pradesh High Court in Lachhi v. Ghansara Singh (1971) emphasized the distinction between an easement acquired by prescription under Section 15 and a customary easement under Section 18, noting that the pleadings should clearly reflect the basis of the claim.

Acquisition by Lessees

A complex question is whether a lessee can acquire an easement by prescription over other land belonging to their lessor. Section 12 of the Act specifies that an easement can be acquired by the owner of an immovable property or, on his behalf, by any person in occupation of the same. The Supreme Court in Madan Gopal Bhatnagar v. Jogya Devi (Smt) And Others (1978) noted that this question was one of first impression for the Court and referred to Section 12. Earlier, in Chapsibhai Dhanjibhai Danad v. Purushottam (1971), the Supreme Court had left this question open. The general principle is that a person cannot acquire an easement over their own land, and a lessee's possession is, in a sense, derived from the lessor. However, if the lessee is enjoying a right over adjacent land also owned by the lessor but not part of the leasehold, the possibility of acquiring such a right is debated.

Easements over Government Land

As stated in Section 15, if the servient heritage "belongs to the Government," the prescriptive period is thirty years instead of twenty. The interpretation of "belongs to the Government" can be nuanced, especially with various land tenure systems. The Madhya Pradesh High Court in Nathusingh v. Sukhram And Others (1969) discussed whether land under Bhumiswami tenancy (where government ownership is remote) "belongs" to the government for the purpose of this clause, suggesting it might not, thereby implying the 20-year period could apply. This contrasts with rights under specific land revenue codes which, as noted in Nathuram Arjun v. Siyasharan Harprasad (Madhya Pradesh High Court, 1968), might be decided based on custom and convenience rather than the strict requirements of Section 15.

Procedural Aspects and Challenges

The primary challenge in claiming a prescriptive easement under Section 15 lies in adducing clear and cogent evidence to satisfy all its stringent requirements. As highlighted by the Supreme Court in Bachhaj Nahar (2008) and Justiniano Antao (2004), and the Kerala High Court in Badariya Madrassa Committee (2006), the pleadings must be precise and lay out all the material facts. Failure to do so can be fatal to the claim.

Evidentiary challenges include proving continuous, uninterrupted user for two decades, often relying on oral testimony of older witnesses, which can be fallible or contested. Demonstrating that the user was "as of right" and not permissive, and "open" rather than clandestine, also requires substantial proof. The existence of an alternative access, as noted in Justiniano Antao (2004) and Smt. Bailey And Another (1975), can weaken a claim, particularly if the claim has elements of necessity intertwined, although Section 15 primarily concerns acquisition by long user, not absolute necessity.

The case of Nair Service Society Ltd. v. Rev. Father K.C Alexander And Others (1968 AIR SC 1165), while primarily about possession and title under the Specific Relief Act, peripherally touches upon the assertion of rights over land. It reinforces that legal claims must be properly framed and pursued through the correct legal channels, a principle broadly applicable to easement claims as well. Similarly, Latif Estate Line India Ltd. v. Hadeeja Ammal (2011 SCC ONLINE MAD 215), dealing with the cancellation of sale deeds, underscores the importance of adhering to legal procedures and the bilateral nature of certain property rights, which contrasts with the unilateral (though long-term) assertion of use in prescriptive easements.

Conclusion

Section 15 of the Indian Easements Act, 1882, provides a statutory basis for the acquisition of easements by prescription, recognizing that long, undisturbed enjoyment of certain rights over another's property can mature into a legal right. However, the path to establishing such a right is fraught with difficulties, demanding strict adherence to the conditions laid down in the section: peaceable, open (where required), uninterrupted enjoyment, as an easement, and as of right, for the stipulated period of twenty or thirty years, culminating within two years of the suit.

Judicial pronouncements, particularly from the Supreme Court and various High Courts, have consistently emphasized the need for precise pleadings and robust evidence to substantiate such claims. The courts have carefully distinguished prescriptive easements from other forms like easements of necessity or customary easements, each having its own set of requirements. The principles enunciated in cases like Justiniano Antao, Bachhaj Nahar, and Badariya Madrassa Committee serve as crucial guides for litigants and legal practitioners. Ultimately, Section 15 balances the interests of the dominant owner seeking to formalize long-standing use with the rights of the servient owner, ensuring that only genuinely established, long-term, and adverse user crystallizes into a legal easement.