EASEMENTS ACT, 1977 THE EASEMENTS ACT, SVT. 1977 (1920 A.D.) [Act No. 14 of 1977] [8th April, 1925] An Act to define and amend the Law relating to Easements and
Licences. Whereas it is expedient to
define and amend the law relating to Easements and licences. It is hereby
enacted as follows:? (1)
This Act may be called the Easements Act, 1977. (2)
It extends to whole of Jammu and Kashmir State. It shall come into
force on the 1st day of Baisakh, 1978. Nothing herein contained
shall be deemed to affect any law not hereby expressly repealed; or to derogate
from,? (a)
any right of the Government to regulate the collection, retention
and distribution of the water of rivers and streams flowing in natural
channels, and natural lakes and ponds, or of the water flowing, collected,
retained or distributed in or by any channel or other work constructed at the
public expense for irrigation; (b)
any customary or other right (not being a licence) in or over
immovable property which the Government, the public or any person may possess
irrespective of other immovable property; or (c)
any right acquired or arising out of a relation created, before
this Act comes into force. Omitted An easement is 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 other land not his own. Dominant and servient
heritages and owners. ? The land for the beneficial enjoyment of which the
right exists is called the dominant heritage, and the owner or occupier thereof
the dominant owner; the land on which the liability is imposed is called the
servient heritage, and the owner or occupier thereof the servient owner. Explanation. ?In the
first and second clauses of this section, the expression "land"
includes also things permanently attached to the earth; the expression
"beneficial enjoyment" includes also possible convenience, remote
advantage, and even a mere amenity; and the expression "to do
something" includes removal and appropriation by the dominant owner, for
the beneficial enjoyment of the dominant heritage, of any part of the soil of
the servient heritage or anything growing or subsisting thereon. Easements are either
continuous or discontinuous, apparent or non-apparent. A continuous easement is
one whose enjoyment is, or may be, continual without the act of man. A discontinuous easement is
one that needs the act of man for its enjoyment. An apparent easement is one
the existence of which is shown by some permanent sign which, upon careful
inspection by a competent person, would be visible to him. A non-apparent easement is
one that has no such sign. An easement may be
permanent, or for a term of years or other limited period, or subject to
periodical interruption, or exercisable only at a certain place, or at certain
times or between certain hours, or for a particular purpose, or on condition
that it shall commence or become void or viodable on the happening of a
specified event or the performance or non-performance of a specified act. Easements are restrictions
of one or other of the following rights, namely:? (a)
The exclusive right of every owner of immovable property (subject
to any law for the time being in force) to enjoy and dispose of the same and
all products thereof and accessions thereto; (b)
Right to advantages arising from situation.? The right of every
owner of immovable property (subject to any law for the time being in force) to
enjoy without disturbance by another the natural advantages arising from its
situation. An easement may be imposed
by any one in the circumstances, and to the extent, in and to which he may
transfer his interest in the heritage on which the liability is to be imposed. Subject to the provisions
of section 8, a servient owner may impose on the servient heritage any easement
that does not lessen the utility of the existing easement. But he cannot,
without the consent of the dominant owner, impose an easement on the servient
heritage which would lessen such utility. Subject to the provisions
of section 8, a lessor may impose, on the property leased any easement that
does not derogate from the rights of the lessee as such, and a mortgagor may
impose, on the property mortgaged, *any easement that does not render the
security insufficient. But a lessor or mortgagor cannot, without the consent of
the lessee or mortgagee, impose any other easement on such property, unless it
be to take effect on the termination of the lease or the redemption of the mortgage. Explanation.? A security is
insufficient within the meaning of this section unless the value of the
mortgaged property exceeds by one-third, or, if consisting of buildings,
exceeds by one-half, the amount for the time being due on the mortgage. No lessee or other person
having a derivative interest may impose on the property held by him as such an
easement to take effect after the expiration of his own interest, or in
derogation of the right of the lessor or the superior proprietor. An easement may be acquired
by the owner of the immovable property for the beneficial enjoyment of which
the right is created, or on his behalf, by any person in possession of the
same. One of two or-more co-owners
of immovable property may, as such, with or without the consent of the other or
others, acquire an easement for the beneficial enjoyment of such property. No lessee of immovable
property can acquire, for the beneficial enjoyment of other immovable property
of his own, an easement in or over the property comprised in his lease. Where one person transfers
or bequeaths immovable property to another, (a)
if an easement in other immovable property of the transferor or
testator is necessary for enjoying the subject of the transfer or bequest, the
transferee or legatee shall be entitled to such easement; or (b)
if such an easement is apparent and continuous and necessary for
enjoying the said subject as it was enjoyed when the transfer or bequest took
effect, the transferee or legatee shall, unless a different intention is
expressed or necessarily implied, be entitled to such easement; (c)
if an easement in the subject of the transfer or bequest is
necessary for enjoying other immovable property of the transferor or testator,
the transferor or the legal representative of the testator shall be entitled to
such easement; or (d)
if such an easement is apparent and continuous and necessary for
enjoying che said property as it was enjoyed when the transfer or bequest took
effect, the transferor, or the legal representative of the testator, shall
unless a different intention is expressed or necessarily implied, be entitled
to such easement. Where a partition is made
of the joint property of several persons,? (e) if an
easement over the share of one of them is necessary for enjoying the share of
another of them, the latter shall be entitled to such easement, or (f)
if such an easement is apparent and continuous and necessary for enjoying
the share of the latter as it was enjoyed when the partition took effect, he
shall, unless a different intention is expressed or necessarily implied, be
entitled to such easement. The easements mentioned in
this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property
passes by operation of law, the persons from and to whom it so passes are, for
the purpose of this section, to be deemed, respectively, the transferor and
transferee. When a right to a way of
necessity is created under section 13, the transferor, the legal representative
of the testator, or the owner of the share over which the right is exercised,
as the case may be, is entitled to set out the way; but it must be reasonably
convenient for the dominant owner. When the person so entitled
to set the way refuses or neglects to do so, the dominant owner may set it out. 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. Each of the said periods of
twenty years shall be taken to be a period ending within two years next before
the institution of the suit wherein the claim to which such period relates is
contested. Explanation I. Nothing is an enjoyment
within the meaning of this section when it has been had in pursuance of an
agreement with the owner or occupier of the property over which the right is
claimed, and it is apparent from the agreement that such right has not been
granted as an easement, or if granted as an easement, that it has been granted
for a limited period, or subject to a condition on the fulfilment of which it
is to cease. Explanation II. ? Nothing is an interruption
within the meaning of this section unless where 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 acquired in for
one year after the claimant has notice thereof and of the person making or
authorising the same to be made. Explanation III. ? Suspension of enjoyment in
purauance of a contract between the dominant and servient owners is not an
inter?ruption within the meaning of this section. Explanation IV, In the case of an easement
to pollute water, the said period of twenty years begins when the pollution
first prejudices perceptibly the servient heritage. When the property over
which a right is claimed under this section belongs to Government, this section
shall be read as if, for the words "twenty years" the words
"sixty years" were substituted. Provided that, when any
land upon, over or form which any easement has been enjoyed or derived has been
held under or by virtue of any interest for life or any term of years exceeding
three years from the granting thereof, the time of the enjoyment of such
easement during the continuance of such interest or term shall be excluded in
the computation of the said last-mentioned period of twenty years, in case the
claim is, within three years next after the determination of such interest or
term, resisted by the person enti?tled, on such determination, to the said
land. Easements acquired under
section 15 are said to be acquired by prescription, and are called prescriptive
rights. None of the following
rights can be so acquired:? (a)
a right which would tend to the total destruction of the subject
of the right, or the property on which, if the acquisition were made, liability
would be imposed; (b)
a right to the free passage of light or air to an open space of
ground; (c)
a right to surface water not flowing in a stream and not
permanently collected in a pool, tank or otherwise; (d)
a right to underground water not passing in a defined channel. An easement may be acquired
in virtue of a local custom. Such easements are called customary easements. Where the dominant heritage
is transferred or devolves, by act of parties or by operation of law, the
transfer or devolution shall, unless a contrary intention appears, be deemed to
pass the easement to the person in whose favour the transfer or devolution
takes place. The rules contained in this
Chapter are controlled by any contract between the dominant and servient owners
relating to the servient heritage, and by provisions of the instrument or
decree, if any, by which the easement referred to was imposed. Incidents of customary
easements. ? And when any incident of any customary easement is
inconsistent with such rules, nothing in this Chapter shall affect such
incident. An easement must not be
used for any purpose not connected with the enjoyment of the dominant heritage. The dominant owner must
exercise his right in the mode which is least onerous to the servient owner;
and, when the exercise of an easement can, without detriment to the dominant
owner, be confined to a determinate part of the servient heritage, such
exercise shall, at the request of the servient owner, be so confined. Subject to the provisions
of section 22, the dominant owner may, from time to time, alter the mode and
place of enjoying the easement, provided that he does not thereby impose any
additional burden on the servient heritage. Exception. ? The
dominant owner of a right of way cannot vary his line of passage at pleasure,
even though he does not thereby impose any additional burden on the servient
heritage. The dominant owner is
entitled, as against, the servient owner, to do all acts necessary to secure
the full enjoyment of the easement; but such acts must be done at such time and
in such manner as, without detriment to dominant owner to cause the servient
owner as little inconvenience as possible; and the dominant owner must repair,
as far as practicable the damage (if any) caused by the act to the servient
heritage. Accessory rights. ?
Right to do acts necessary to secure the full enjoyment of an easement are
called accessory rights. The expenses incurred in
constructing works, or making repairs, or doing any other act necessary for the
use or preservation of an easement, must be defrayed by the dominant owner. Where an easement is
enjoyed by means of an artificial work, the dominant owner is liable to make
compensation for any damage to the servient heritage arising from the want of
repair of such work. The servient owner is not
bound to do anything for the benefit of the dominant heritage, and he is
entitled, as against the dominant owner, to use the servient heritage in any
way consistent with the enjoyment of the easement, but he must not do any act
tending to restrict the easement or to render its exercise less convenient. With respect to the extent
of easements and the mode of their enjoyment, the following provisions shall
take effect:? Easement of necessity.?An
easement of necessity is co-extensive with the necessity as it existed when the
easement was imposed. Other easements.? The
extent of any other easement and the mode of its enjoyment must be fixed with
reference to the probable intention of the parties and the purpose for which
the right was imposed or acquired. The dominant owner cannot
by merely altering or adding to the dominant heritage, substantially increase
an easement. Where an easement has been
granted or bequeathed so that its extent shall be proportionate to the extent
of the dominant heritage, if the dominant heritage is increased by alluvion,
the easement is proportionately increased, and, if the dominant heritage is
diminished by diluvion, the easement is proportionately diminshed. Save as aforesaid, no
easement is affected by any change in the extent of the dominant or the
servient heritage. Where a dominant heritage
is divided between two or more persons, the easement becomes annexed to each of
the shares, but not so as to increase substantially the burden on the servient
heritage: Provided that such
annexation is consistent with the terms of the instrument, decree or revenue
proceeding (if any) under which the division was made, and, in the case of
prescriptive rights, with the user during the prescriptive period. In the case of
excessive user of an easement the servient owner may, without prejudice to any
other remedies to which he may be entitled, obstruct the user, but only on the
servient heritage: Provided that such user
cannot be obstructed when the obstruc?tion would interfere with the lawful
enjoyment of the easement. The owner or occupier of
the dominant heritage is entitled to enjoy the easement without disturbance by
any other person. The owner of any interest
in the dominant heritage, or the occupier of such heritage, may institute a
suit for compensation for the disturbance of the easement or of any right
accessory thereto; provided that the
disturbance has actually caused substantial dam?age to the plaintiff. Explanation I. ? The doing of any act likely
to injure the plaintiff by affecting the evidence of the easement, or by
materially diminishing the value of the dominant heritage, is substantial
damage within the meaning of this section and section 34. Explanation II. ? Where the easement
disturbed is a right to the free passage of light passing to the openings in a
house, no damage is substantial within the meaning of this section unless it
falls within the first Explanation, or interferes materially with the physical
comfort of the plantiff, or prevents him from carrying on his accustomed
business in the dominant heritage as beneficially as he had done previous to
instituting the suit. Explanation III. ? Where the easement
disturbed is a right to the free passage of air to the openings in a house, damage
is substantial within the meaning of this section if it interferes materially
with the physical comfort of the plaintiff, though it is not injurious to his
health. The removal of the means of
support to which a dominant owner is entitled does not give rise to a right to
recover compensation, unless and until substantial damage is actually
sustained. Subject to the provisions
of the Specific Relief Act, sections 52 to 57 (both inclusive), an injunction
may be granted to restrain the disturbance of an easement? (a)
if the easement is actually disturbed ? when compensation for
such disturbance might be recovered under this Chapter; (b)
if the disturbance is only threatened or intended ?when the
act threatened or intended must necessarily, if performed, disturb the
easement. Notwithstanding the
provisions of section 24, the dominant owner cannot himself abate a wrongful
obstruction of an easement. When, from a cause which
preceded the imposition of an easement, the person by whom it was imposed
ceases to have any right in the servient heritage, the easement is extinguised. Exception. ? Nothing in
this section applies to an easement lawfully imposed by a mortgage in
accordance with section 10. An easement is extinguished
when the dominant owner releases it, expressly or impliedly, to the servient
owner. Such release can be made
only in the circumstances and to the extent in and to which the dominant owner
can alienate the dominant heritage. An easement may be released
as to part only of the servient heritage. Explanation I. ? An easement is impliedly
released? (a)
where the dominant owner expressly authorises an act of a
permanent nature to be done on the servient heritage, the necessary consequence
of which is to prevent his future enjoyment of the easement, and such act is
done in pursurance of such authority; (b)
where any permanent alteration is made in the dominant heritage of
such a nature as to show that the dominant owner intended to cease to enjoy the
easement in future. Explanation II. ?Mere
non-user of an easement is not an implied release within the meaning of this
section. An easement is extinguished
when the servient owner, in exercise of a power reserved in this behalf,
revokes the easement. An easement is extinguished
where it has been imposed for a limited period, or acquried on condition that
it shall become void on the performance or non-performance of a specified act,
and the period expires or the condition is fulfilled. An easement of necessity is
extinguished when the necessity comes to an end. An easement is extinguished
when it becomes incapable of being at any time and under any circumstances
beneficial to the dominant owner. Where, by any permanent
change in the dominant heritage, the burden on the servient heritage is
materially increased and cannot be reduced by the servient owner without interfering
with the lawful enjoyment of the easement, the easement is extinguished,
unless? (a)
it was intended for the beneficial enjoyment of the dominant
heritage, to whatever extent the easement should be used; or (b)
the injury caused to the servient owner by the change is so slight
that no reasonable person would complain of it; or (c)
the easement is an easement of necessity. Nothing in this section
shall be deemed to apply to an easement entitling the dominant owner to support
of the dominant heritage, An easement is extinguished
where the servient heritage is Joy superior force so permanently altered that
the dominant owner can no longer enjoy such easement: Provided that, where a way
of necessity is destroyed by superior force, the dominant owner has a right to
another way over the servient heritage; and the provisions of section 14 apply
to such way. An easement is extinguished
when either the dominent or the servient heritage is completely destroyed. An easement is extinguished
when the same person becomes entitled to the absolute ownership of the whole of
the dominant and servient heritages. A continuous easement is
extinguished when it totally ceases to be enjoyed as such for an unbroken
period of twenty years. A discontinuous easement is
extinguished when, for a like period, it has not been enjoyed as such. Such period shall be
reckoned, in the case of a continuous easement, from the day on which its
enjoyment was obstructed by the servient owner, or rendered impossible by the
dominant owner; and, in the case of a discontinuous easement, from the day on
which it was enjoyed by any person as dominant owner: Provided that if, in the
case of a discontinuous easement, the dominant owner, within such period,
registers, under the Registration Act, a declaration of his intention to retain
such easement, it shall not be extinguished until a period of twenty years has
elapsed from the date of the registration. Where an easement can be
legally enjoyed only at a certain place, or at certain times, or between
certain hours, or for a particular purpose, its enjoyment during the said period at another place, or
at other times, or between other hours, or for another purpose, does not
prevent its extinction under this section. The circumstance that,
during the said period, no one was in possession of the servient heritage, or
that the easement could not be enjoyed, or that a right accessory thereto was
enjoyed, or that the dominant owner was not aware of its existance, or that he
enjoyed it in ignorance of his right to do so, does not prevent its extinction
under this section. An easement is not
extinguished under this section? (a)
where the cessation is in pursuance of a contract between the
dominant and servient owners; (b)
where the dominant heritage is held in co-ownership, and one of
the co-owners enjoys the easement within the said period; or (c)
where the easement is a necessary easement. Where several heritages are
respectively subject to rights of way for the benefit of a single heritage, and
the ways are continuous, such rights shall, for the purposes of this section,
be deemed to be a single easement. When an easement is
extinguished, the rights (if any) accessory thereto are also extinguished. An easement is suspended
when the dominant owner becomes entitled to possession of the servient heritage
for a limited interest therein, or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest therein. The servient owner has no
right to require that an easement be continued; and, notwithstanding the
provisions of section 26, he is not entitled to compensation for damage caused
to the servient heritage in consequence of the extinguishment or suspention of
the easement, if the dominant owner has given to the servient owner such notice
as will enable him, without unreasonable expense, to protect the servient
heritage from such damage. Compensation for damage
caused by extinguishment or suspension. ? Where
such notice has not been given, the servient owner is entitled to compensation
for damage caused to the servient heritage in consequence of such
extinguishment or suspension. An easement extinguished
under section 45 revives (a) when the destroyed heritage is, before twenty
years have expired, restored by the deposit of alluvion; (b) when the destroyed
heritage is a servient building and before twenty years have expired such
building is re-built upon the same site; and (c) when the destroyed heritage is
a dominant building and before twenty years have expired such building is
rebuilt upon the same site and in such manner as not to impose a greater burden
oh the servient heritage. An easement extinguished
under section 46 revives when the grant or bequest by which the unity of
ownership was produced is set aside by the decree of a competent Court. A
necessary easement extinguished under the same section revives when the unity
of ownership ceases from any other cause. A suspended easement
revives if the cause of suspension is removed before the right is extinguished
under section 47. Where one person grants to
another, or to a definite number of other persons, a right to do, or continue
to do, in or upon the immovable property of the grantor, something which would,
in the absence of such right, be unlawful, and such right does not amount to an
easement or an interest in the property, the right is called a licence. A licence may be granted by
any one in the circumstances and to the extent in and to which he may transfer
his interest in the property affected by the licence. The grant of a licence may
be express or implied from the conduct of the grantor, and an agreement which
purports to create an easement, but is ineffectual for that purpose, may
operate to create a licence. All licences necessary for
the enjoyment of any interest, or the exercise of any right, are implied in the
constitution of such interest or right. Such licences are called accessory
licences. Unless a different
intention is expressed or necessarily implied, a licence to attend a place of
public entertainment may be trandferred by the licensee; but, save as
aforesaid, a licence cannot be transferred by the licensee or exercised by his
servants or agents. The grantor of a licence is
bound to disclose to the licensee any defect in the property affected by the
licence, likely to be dangerous to the person or property of the licensee, of
which the grantor is, and the licensee is not, aware. The grantor of a licence is
bound not to do anything likely to render the property affected by the licence
dangerous to the person or property of the licensee. When the grantor of the
licence transfers the property affected thereby, the transferee is not as such
bound by the licence. A licence may be revoked by
the grantor, unless? (a)
it is coupled with a transfer of property and such transfer is in
force; (b)
the licensee, acting upon the licence, has excuted a work of a
permanent character and incurred expenses in the excution. The revocation of a licence
may be express or implied. A licence is deemed to be
revoked? (a)
when, from a cause preceding the grant of it, the grantor ceases
to have any interest in the property affected by the licence; (b)
when the licensee releases it, expressly or impliedly, to the
grantor or his representative; (c)
where it has been granted for a limited period, or acquired on
condition that it shall become void on the performance or non-performance of a
specified act, and the period expires or the condition is fulfilled; (d)
where the property affected by the licence is destroyed or by
superior force so permanently altered that the licensee can no longer exercise
his right; (e)
where the licensee becomes entitled to the absolute ownership of
the property affected by the licence; (f)
where the licence is granted for a specified purpose and the
purpose is attained, or abandoned, or becomes impracticable; (g)
where the licence is granted to the licensee as holding a
particular office, employment or character, and such office, employment or
character ceases to exist; (h)
where the licence totally ceases to be used as such for an
unbroken period of twenty years, and such cessation is not in pursuance of a
contract between the grantor and the licensee; (i) in the case of an accessory
licence, when the interest or right to which it is accessory ceases to exist. Where a licence is revoked,
the licensee is entitled to a reasonable time to leave the property affected
thereby and to remove any goods which he has been allowed to place on such
property. Where a licence has been
granted for a consideration, and the licensee, without any fault of his own, is
evicted by the grantor before he has fully enjoyed, under the licence, the
right for which he contracted, he is entitled to recover compensation from the
grantor.
Preamble - THE EASEMENTS ACT, 1977PREAMBLE