EASEMENT LAW (LB106)
TOPIC –
“OVERVIEW OF INDIAN EASEMENT
ACT”
1
, KANIKA MALIK
INTRODUCTION II YEAR STUDENT
GAUTAM
Man is a social animal. He expects BUDDHA
help UNIVERSITY, UP
and co-operation
from each person of the society. He has a wish that no
person should interfere in his property and rights relating
to property subjects. With this concept, the easement has
originated. It allows permission and right to the beneficial
enjoyment of the property of its owner and occupant.
Easement is a right that enables a person to use a
property, even when he/she is not the owner of the
property. Such a right is granted by the owner of the
property for the purpose of water, light, egress/ ingress
and passage to name a few. Merely by giving the
easement right for some particular reason does not imply
that the person with such easement rights can use the
land according to his wishes.
Section-4 of Transfer of Property Act 1882 defines
“Easement” as “a right which the owner or occupier of
certain land possesses. As such, for the beneficial
enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent
something being done, in or upon, or in respect of certain
another land not of his own.
According to Salmond, “Easement is the servitude which
is applied upon other parts of land for the benefit of a
part of the land. It is not serviceable which is called
2
benefit”.
,Peacock defines easement as “a privilege without
profit which user gets from the owner of the property,
by which the owner is prohibited to use the right of
absolute use”.
HISTORY AND ORIGIN
The right of easement is a right as old as the day
when the human race first emerging from barbarism,
adopted the custom of living together in towns or
living as each other's neighbors or respecting each
other's rights. History of right of easement can be
traced from early days of man- kind, when people
started living together and started acknowledging the
respective rights of every one in immoveable
property, as right of easement is a necessary
consequence of right of ownership of immoveable
property. So with the growth of civilization, right of
easement had started emerging as necessary
consequence and later took shape of well-recognized
statutory right. The existence of two houses adjoining
to each other necessitates the exercise of right of
easement for ensuring beneficial enjoyment of both
the houses. And this salutary principle appears to be
the original foundation on which easements are
based.
Even before British era, right of easement was
3
recognized in one way or other. During old and
, Medieval History of India, right of easement was
recognized in the form of common street, right about
drains, well, flow of water or Right of window etc. With
the advent of British rule in India, this branch of law
developed by application of English principles. The
first enactment in India which expressly recognized
easement right was Limitation Act of 1871 which was
later superseded by Act of 1877. These Acts enable a
man to acquire a title who had no other right at all but
did not exclude the mode of acquiring easementory
rights. But these acts were merely prescriptive as far
as their application to right of easement is concerned.
With the passage of time and growth of civilization
there was pressing need to have independent
enactment on right of easement which defines the
right and makes provisions of its application.
Indian Easement Act was enacted in 1882 defining
and clarifying the law relating to Easements and
licenses. The present Easement Act was therefore
enactment to make certain what was formerly vague
and to cure what was defective and to give shape and
form to multifarious rules constituting the law of
easement. It however does not repeal the old law; it
only repeals Sections 26 and 27 of Limitation Act of
1877.
Illustration- ‘A’ is the owner of a property. He can
4
construct anything on his land but he cannot construct
an object that creates a disturbance to his neighbor in
using natural facilities e.g. light, getting air or
TOPIC –
“OVERVIEW OF INDIAN EASEMENT
ACT”
1
, KANIKA MALIK
INTRODUCTION II YEAR STUDENT
GAUTAM
Man is a social animal. He expects BUDDHA
help UNIVERSITY, UP
and co-operation
from each person of the society. He has a wish that no
person should interfere in his property and rights relating
to property subjects. With this concept, the easement has
originated. It allows permission and right to the beneficial
enjoyment of the property of its owner and occupant.
Easement is a right that enables a person to use a
property, even when he/she is not the owner of the
property. Such a right is granted by the owner of the
property for the purpose of water, light, egress/ ingress
and passage to name a few. Merely by giving the
easement right for some particular reason does not imply
that the person with such easement rights can use the
land according to his wishes.
Section-4 of Transfer of Property Act 1882 defines
“Easement” as “a right which the owner or occupier of
certain land possesses. As such, for the beneficial
enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent
something being done, in or upon, or in respect of certain
another land not of his own.
According to Salmond, “Easement is the servitude which
is applied upon other parts of land for the benefit of a
part of the land. It is not serviceable which is called
2
benefit”.
,Peacock defines easement as “a privilege without
profit which user gets from the owner of the property,
by which the owner is prohibited to use the right of
absolute use”.
HISTORY AND ORIGIN
The right of easement is a right as old as the day
when the human race first emerging from barbarism,
adopted the custom of living together in towns or
living as each other's neighbors or respecting each
other's rights. History of right of easement can be
traced from early days of man- kind, when people
started living together and started acknowledging the
respective rights of every one in immoveable
property, as right of easement is a necessary
consequence of right of ownership of immoveable
property. So with the growth of civilization, right of
easement had started emerging as necessary
consequence and later took shape of well-recognized
statutory right. The existence of two houses adjoining
to each other necessitates the exercise of right of
easement for ensuring beneficial enjoyment of both
the houses. And this salutary principle appears to be
the original foundation on which easements are
based.
Even before British era, right of easement was
3
recognized in one way or other. During old and
, Medieval History of India, right of easement was
recognized in the form of common street, right about
drains, well, flow of water or Right of window etc. With
the advent of British rule in India, this branch of law
developed by application of English principles. The
first enactment in India which expressly recognized
easement right was Limitation Act of 1871 which was
later superseded by Act of 1877. These Acts enable a
man to acquire a title who had no other right at all but
did not exclude the mode of acquiring easementory
rights. But these acts were merely prescriptive as far
as their application to right of easement is concerned.
With the passage of time and growth of civilization
there was pressing need to have independent
enactment on right of easement which defines the
right and makes provisions of its application.
Indian Easement Act was enacted in 1882 defining
and clarifying the law relating to Easements and
licenses. The present Easement Act was therefore
enactment to make certain what was formerly vague
and to cure what was defective and to give shape and
form to multifarious rules constituting the law of
easement. It however does not repeal the old law; it
only repeals Sections 26 and 27 of Limitation Act of
1877.
Illustration- ‘A’ is the owner of a property. He can
4
construct anything on his land but he cannot construct
an object that creates a disturbance to his neighbor in
using natural facilities e.g. light, getting air or
