Prescriptive Easement of Right of Way in India: A Juridical Analysis

Introduction

The concept of prescriptive easement, particularly concerning rights of way, forms a significant aspect of property law in India. It allows for the acquisition of a right to use another's land through long, continuous, and specific manner of enjoyment, without express grant. This doctrine, rooted in the idea that long-standing usage should, under certain conditions, be recognized and protected by law, seeks to balance the sanctity of private property with the practical realities of land use. The Indian Easements Act, 1882, primarily governs these rights, with Section 15 laying down the specific criteria for their acquisition. This article undertakes a comprehensive analysis of the prescriptive easement of right of way under Indian law, drawing extensively upon statutory provisions and judicial pronouncements to elucidate the essential elements, evidentiary requirements, and interpretative nuances developed by the courts.

The Statutory Edifice: Section 15 of the Indian Easements Act, 1882

The fountainhead for the law on prescriptive easements in India is Section 15 of the Indian Easements Act, 1882. This provision, as highlighted in several judicial decisions, delineates the conditions under which such rights mature. For a right of way, the relevant part of Section 15 states: "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, way, watercourse, use of water, or other easement shall be absolute and indefeasible" (as quoted in Lambodar Panda And Others v. Ramesh Chandra Panda And Others, Orissa High Court, 1957 and Purani Dhirajlal Amritlal v. Mehta Sankleshwar Aditram And Anr., Gujarat High Court, 1975). The period is sixty years where the servient heritage belongs to the Government.

The ingredients necessary for the establishment of a prescriptive right of way are thus statutorily provided, and courts have consistently emphasized adherence to these conditions (M. Ratanchand Crordia And Others v. Kasim Khaleeli, Madras High Court, 1963).

Deciphering the Core Elements of Prescriptive Easement of Way

The acquisition of a prescriptive easement of way is contingent upon the satisfaction of several cumulative conditions, each of which has been subject to extensive judicial scrutiny.

Peaceable and Open Enjoyment

The enjoyment of the way must be "peaceably and openly" exercised. "Peaceably" implies that the enjoyment must not be contentious or achieved through force (Justiniano Antao And Others v. Bernadette B. Pereira (Smt), 2005 SCC 1 471). "Openly" signifies that the user must not be clandestine, secret, or by stealth; it must be manifest and visible, such that an ordinary owner of land, diligent in the protection of their interests, would have a reasonable opportunity of becoming aware of that enjoyment (M. Ratanchand Crordia And Others v. Kasim Khaleeli, Madras High Court, 1963; Purani Dhirajlal Amritlal v. Mehta Sankleshwar Aditram And Anr., Gujarat High Court, 1975).

Claiming Title Thereto "As an Easement"

The person claiming the prescriptive right must have enjoyed the way "as an easement." This means the right must be exercised over land belonging to another (servient heritage) for the beneficial enjoyment of one's own land (dominant heritage). A person cannot acquire an easement over their own property. Furthermore, a lessee generally cannot acquire a prescriptive easement over land belonging to their lessor for the benefit of the land leased from that same lessor, though they may acquire it for the beneficial enjoyment of other immovable property owned by the lessee (Chapsibhai Dhanjibhai Danad v. Purushottam, 1971 SCC 2 205; Indian Easements Act, 1882, S. 12, as discussed in Manikrao v. Maheshkumar, Bombay High Court, 2001).

The Crux: Enjoyment "As of Right" (Nec Vi, Nec Clam, Nec Precario)

This is perhaps the most critical element. The expression "as of right" signifies that the enjoyment must be without force (nec vi), without secrecy (nec clam), and without permission (nec precario). As elucidated in M. Ratanchand Crordia And Others v. Kasim Khaleeli (Madras High Court, 1963), "it is not enough that the right is merely exercised but that it should be exercised consciously in assertion of the right claimed." The enjoyment should not be by sufferance or leave and licence of the servient owner. Dependence on the will of another would render the right precarious. However, the claimant need not "openly proclaim that they are doing so because they have a right to do so" (M. Ratanchand Crordia And Others v. Kasim Khaleeli, Madras High Court, 1963).

If the user is permissive, it cannot mature into a prescriptive easement, regardless of how long it continues (Thottathil Thamasikkum Cherootty Alias Balan v. Puliyaratharayil Velayudhan Nair, Kerala High Court, 1998). The user must be adverse to the servient owner, not in the sense of being hostile, but in the sense of not being by their permission.

Continuity and the Statutory Period: "Without Interruption, and for Twenty Years"

The enjoyment must be continuous and without interruption for a period of twenty years. "Interruption" is specifically defined in Explanation I to Section 15 of the Act as an obstruction by the act of some person other than the claimant, and such obstruction must be submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made. The period of twenty years must be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested (Indian Easements Act, 1882, S. 15, last paragraph; Justiniano Antao And Others v. Bernadette B. Pereira (Smt), 2005 SCC 1 471).

The user by predecessors-in-title can be tacked to establish the statutory period, provided the nature of the user by the predecessor also fulfilled the requirements of prescription (Narayanan Nair & Another v. Mariamma Kurian & Another, Kerala High Court, 1988, which found error in the lower courts' holding that a person must *by himself* use it for the statutory period after acquiring the property).

The Two-Year Rule: Proximity to Suit

A crucial aspect of Section 15 is that the twenty-year period of enjoyment must end within two years next before the institution of the suit in which the claim is contested. If an obstruction occurs and the suit is not filed within two years from the date of such obstruction (which amounts to an interruption if acquiesced in for a year), the claim for prescriptive easement may be defeated (Pankan Soman v. Manoharan C.K., Kerala High Court, 2018).

The Evidentiary Onus: Burden of Proof and Judicial Presumptions

The burden of proving the existence of all the requisite elements for establishing a prescriptive right of way lies squarely on the person asserting it, i.e., the plaintiff (Lambodar Panda And Others v. Ramesh Chandra Panda And Others, Orissa High Court, 1957). This includes proving that the user was "as of right."

There has been some judicial discourse regarding whether a presumption of user "as of right" arises from long, open, and uninterrupted enjoyment. The Calcutta High Court in 8 Cal WN 559 (D), cited in Lambodar Panda, cautioned against readily applying the English rule (that presumption from user should be that it is as of right) to India, suggesting it depends on the circumstances of each case and the habits of the people. It was observed that "it would not be right to draw here the same inference from user that would be proper and legitimate in a case arising in England."

However, other High Courts have taken a somewhat different stance. For instance, the Madras High Court in Kunjammal v. Rathnam Pillai (AIR 1922 Mad 5), referenced in Maniyan Krishnan And Another v. Maniyan Nanukuttan (Kerala High Court, 1985) and Ramesh Chandra Panda And Others v. Lambodar Panda And Others (Orissa High Court, 1959), suggested that open user continued without interruption for a long time and not attributable to permission may induce a presumption that the user was as of right. Similarly, the Bombay High Court in Rau Rama v. Tukaram Nana (AIR 1939 Bom 149), cited in Ramesh Chandra Panda, opined that if a party shows open exercise of rights for the statutory period sufficient to establish an easement, prima facie they are entitled to it. The Lahore High Court also held that open user continued without interruption for a long time and not shown to be attributable to permission is prima facie evidence of enjoyment as of right (Ramesh Chandra Panda And Others v. Lambodar Panda And Others, Orissa High Court, 1959).

The Supreme Court in Justiniano Antao And Others v. Bernadette B. Pereira (Smt) (2005 SCC 1 471) emphasized the stringent requirements for establishing a prescriptive easement, implying a rigorous standard of proof on the claimant.

Navigating the Nuances: Distinctions and Interplay with Other Rights

Prescriptive Easement versus Easement of Necessity

It is crucial to distinguish a prescriptive easement from an easement of necessity. An easement of necessity, under Section 13 of the Indian Easements Act, 1882, arises upon severance of tenements when one part of the property becomes inaccessible except through the other. It is founded on absolute necessity. A prescriptive easement, conversely, is acquired through long user "as of right," irrespective of absolute necessity (Sree Swayam Prakash Ashramam And Another v. G. Anandavally Amma And Others, 2010 SCC 2 689). The existence of an alternative, though inconvenient, pathway will defeat a claim of easement of necessity (Thottathil Thamasikkum Cherootty Alias Balan v. Puliyaratharayil Velayudhan Nair, Kerala High Court, 1998; Kallen Devi v. Raghavan, Kerala High Court, 2011). While the availability of another access primarily negates an easement of necessity, it can be a relevant factor in appreciating evidence for a prescriptive claim, particularly in determining if the user was "as of right" or merely permissive (Narayanan Nair & Another v. Mariamma Kurian & Another, Kerala High Court, 1988; Mathai Varkey v. Thomas John, Kerala High Court, 1978).

Prescriptive Easement versus Implied Grant

An easement by implied grant also arises typically upon severance of tenements, based on the presumed intention of the parties and the continuous and apparent nature of the use at the time of severance (Sree Swayam Prakash Ashramam And Another v. G. Anandavally Amma And Others, 2010 SCC 2 689). While both involve use, prescription requires a specific period of adverse user "as of right," whereas an implied grant depends on the circumstances existing at the time of the grant or disposition of land.

Prescriptive Rights and Public Ways/Customary Rights

A private prescriptive easement must be distinguished from a public right of way. A public right of way is used by the public at large, not by an individual as an appurtenance to their dominant tenement. A person cannot claim a private easement over a road admittedly used by the public, as their right would be as a member of the public, not as a dominant owner (Kallen Devi v. Raghavan, Kerala High Court, 2011). However, a right of way may also be acquired as a customary right by the inhabitants of a particular locality (Indian Easements Act, 1882, S. 18; Manikrao v. Maheshkumar, Bombay High Court, 2001; Moolchand And Others v. Chhoga And Others, Rajasthan High Court, 1960).

Factors Influencing Adjudication

The Significance of Alternative Pathways

As discussed, the existence of an alternative pathway is fatal to a claim of easement of necessity. In the context of prescriptive easements, its relevance is more nuanced. While not an absolute bar, the presence of a convenient alternative access might suggest that the use of the disputed path was permissive or by convenience rather than "as of right" (Justiniano Antao And Others v. Bernadette B. Pereira (Smt), 2005 SCC 1 471; Mathai Varkey v. Thomas John, Kerala High Court, 1978). However, if the elements of prescriptive user are otherwise established, the mere existence of another path may not defeat the claim (Narayanan Nair & Another v. Mariamma Kurian & Another, Kerala High Court, 1988).

Nature of the Land and Surrounding Circumstances

The character of the land over which the right is claimed is a relevant consideration. For instance, user over wasteland or unenclosed land, or passage over ridges between paddy fields, is often presumed to be permissive in India, given the local customs and habits where landowners might not object to such passage (Thottathil Thamasikkum Cherootty Alias Balan v. Puliyaratharayil Velayudhan Nair, Kerala High Court, 1998; Maniyan Krishnan And Another v. Maniyan Nanukuttan, Kerala High Court, 1985). However, this is a rebuttable presumption. If a pathway over reclaimed land (formerly paddy field ridges) is used for the statutory period with all requisites of prescription, such a right can be acquired (Pappachan And Another v. Alex And Another, Kerala High Court, 2023).

Character of User: From Footpath to Motorable Way

The extent and nature of the prescriptive right are determined by the actual user. If a prescriptive right for a motorable way is claimed, the evidence must establish user for vehicular access for the statutory period. A mere footpath cannot automatically be claimed as a motorable way unless such specific user is proven (JACOB v. ANTONY VARGHESE, Kerala High Court, 2018, where the existence of a 4-meter wide way was admitted, but the dispute was about the right to vehicular access).

Pleadings, Proof, and Procedural Considerations

A claim for prescriptive easement, being a precarious plea that curtails the rights of the property owner, must be specifically pleaded with necessary details and strictly proved (JACOB v. ANTONY VARGHESE, Kerala High Court, 2018). While Anathula Sudhakar v. P. Buchi Reddy (2008 SCC 4 594) primarily deals with suits for injunction and declaration of title, its emphasis on proper pleadings and the nature of relief sought is generally relevant to property litigation. The court noted that where title is in dispute in an injunction suit, a prayer for declaration of title is necessary. Similarly, in easement suits, the basis of the claim (prescription, necessity, grant) must be clearly articulated. Courts may direct parties to maintain status quo pending trial where a prima facie case is made out and the issue requires evidence (Kunjumon v. Lissy, Kerala High Court, 2016).

Interruption: Breaking the Chain of Prescription

As per Explanation I to Section 15 of the Indian Easements Act, 1882, an interruption is an obstruction by someone other than the claimant. For this interruption to be effective in defeating a claim of prescription, it must be submitted to or acquiesced in by the claimant for one year after they have notice of the obstruction and the person causing it. A mere partial prohibition or a reduction in the extent of enjoyment may not be sufficient to constitute cessation of enjoyment or an effective interruption (Sivaraman Nair v. Gopalakrishnan Nair, Kerala High Court, 2023). If an obstruction is challenged and the suit is filed within two years of such obstruction (and the one-year acquiescence period has not run out for that specific obstruction to be counted as an interruption breaking the 20-year chain), the right may still be established (Pankan Soman v. Manoharan C.K., Kerala High Court, 2018; T.M.RAJU v. BALAKRISHNAN, Kerala High Court, 2022).

Scope of Adjudication in Easement Suits

A suit for declaration of a prescriptive easement right of way focuses on the establishment of this specific incorporeal right. While the title of the servient owner forms the backdrop, the primary adjudication revolves around the fulfillment of the conditions under Section 15. In some complex property litigations, courts may decide on specific reliefs while keeping broader questions, such as absolute title, open for future agitation if necessary. For instance, in M. Kallappa Setty v. M.V Lakshminarayana Rao (1973 SCC 2 358), the Supreme Court, considering the protracted litigation over a low-value property, kept the question of title open while confirming a decree for a different relief (Relief 2, nature unspecified in the provided extract). This illustrates a pragmatic approach where specific rights, potentially akin to easementary claims if Relief 2 was such, can sometimes be adjudicated with a degree of separation from conclusive title determination, though typically the servient owner's capacity to be burdened by an easement is relevant.

Conclusion

The law of prescriptive easement of right of way in India, codified primarily in Section 15 of the Indian Easements Act, 1882, represents a complex interplay of statutory requirements and judicial interpretations. Establishing such a right demands rigorous proof of peaceable, open, and uninterrupted enjoyment, as an easement and as of right, for the statutory period of twenty years. The claimant bears a significant evidentiary burden. Courts meticulously examine the nature of the user, the character of the land, the existence of alternative pathways, and the conduct of the parties to determine whether the enjoyment was permissive or asserted as a matter of right. The distinction from other forms of easements, such as those of necessity or implied grant, is critical. Judicial pronouncements have consistently underscored the need for strict adherence to the statutory conditions, thereby safeguarding the rights of property owners while recognizing claims legitimized by long and unequivocal user. The jurisprudence in this area continues to evolve, adapting to modern societal conditions while upholding the foundational principles of easement law.