About the Author
Adv.Bhupesh is a member of Munsiff Magistrate exam training program.
Facts of the case
The larger property comprising the Plaint A and B schedule properties belonged to the father of the plaintiff and the defendant. On the death of the father, the plaintiff and the defendant partitioned the larger property in the year 1995. The plaint A schedule property was allotted to the plaintiff and the plaint B schedule property was allotted to the defendant. The plaint C schedule way is the only way to the plaint A schedule property. It forms part of plaint B schedule property and runs through it. A suit for declaration of easement right and injunction was instituted in 2020 when the defendant obstructed the way. According to the plaintiff, he has been using the C schedule way for access to A schedule property since 1995 openly, continuously, peacefully and as a matter of right and thereby 10 acquired prescriptive easement right over the same. The plaintiff claimed easement of necessity, as well, as originally A and B schedule property, belonged to a common owner and by severance, it devolved upon the plaintiff and the defendant.
Issues
Can the plea of prescriptive right of easement and easement of necessity co-exist in a suit?
Can one of the pleas be claimed as an alternative relief?
Examine-in the light of the inherent characteristics of both easements.
Law involved
Section 13 of Indian Easement Act– The easement by necessity arises when a person bequeaths or transfers an immovable property to another.Particularly sub clauses (a),(c), (e) of section 13 deals with easement by necessity.
Section 15 of Indian Easement Act-It prescribes the conditions in order to claim a right of prescriptive easement.
Easement by necessity
As per Section 13 of the Indian Easements Act, the easement by necessity arises when a person bequeaths or transfers an immovable property to another.Particularly sub clauses (a),(c), (e) of section 13 deals with easement by necessity.
As per sub clause (a), when a person transfers or bequeaths an immovable property, if an easement in another immovable property of the transferor or testator is necessary for the enjoyment of the subject matter of transfer or bequeath, the transferee or legatee shall be entitled to such easement. As per sub clause (e), when a partition is made of the joint property of several persons and 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. A right of easement by necessity arises when a single tenement is divided into separate and distinct tenements..Mere fact that servient tenement and dominant tenement belong to a common owner does not give rise to an easement of necessity. It must be established that both the tenements had constituted a single unit and after severance, the situation of a dominant tenement became such that it cannot be used at all without the easement claimed in the suit of servient tenement. A right of easement by necessity can be claimed only if such right is an absolute necessity and it cannot be invoked for the sake of convenience.
Easement by prescription
Section 15 of The Indian Easement Act, prescribes the conditions in order to claim a right of prescriptive easement. As per Section 15,when 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 for 20 years, then such easement shall become absolute. So basically the ingredients for prescriptive easement is that such right has to be enjoyed;
1)Peaceably
2)Openly
3)As an easement
4)As of right
5)Without interruption
6)For 20 years
7)By any person claiming the title thereto
So, if the above conditions are satisfied the usage of the servient tenement will mature into a right of prescription easement.
In the present case, a single tenement was severed into two distinct tenements where .one belong to plaintiff and the other belong to the defendant which are scheduled as A and B.The C schedule pathway runs through plaint B schedule property and if it can be shown that the C schedule pathway is an absolute necessity for the enjoyment of plaint A schedule property, then the plea of easement by necessity is maintainable. Also it is clear that in this case, the way is used peacefully, continuously,openly as a matter of right from 1995 to 2020 i.e for 25 years. Hence such usage has crystallized into a right of prescriptive easement. Therefore the plaintiff is entitled to invoke Section 15 of The Indian Easements Act. But here, the right of easement by prescription and easement by necessity are pleaded simultaneously.Both of these does not go together.While easement of necessity has its origin in statute the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person(servient heritage owner).
In order to succeed in a claim for prescriptive easement, the claimant has to show that he has open,continuous,hostile,and uninterrupted use of pathway for a period of 20 years. The concept of prescription is founded on utility rather than equity. Essential concominants for prescribing easement rights are peaceable, open, continuous and as of right , enjoyment of right for a stipulated period in order to mature the usage into a legal right.It is therefore clear that the basis of a prescriptive easement is the exercise of a right in accordance with the stipulations in Section 15 of the Act.Whereas easement of necessity arises on severance of immovable property by a transfer,bequest or partition. Easement of necessity recognized under Section 13 of the Act presupposes jointness of tenants at an anterior point of time and severance of them before enforcement of claim. Rights under Section 13 of the Act arise by operation of law under the situations mentioned therein.It can only
be invoked if absolute necessity arises i.e only if the enjoyment of the subject matter becomes impossible without such an easement right.Therefore if any alternative remedy is available for the enjoyment of the subject matter then the right of easement by necessity will be eclipsed and will be unenforceable till the alternate remedy available for such enjoyment ceases.
An easement right of necessity arises by virtue of conditions entirely different from easement rights created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negate the existence of away by continuous adverse users. The acquisition of way by an adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquiesced. Here in this case, the existence of a pathway which is being used for 20 years openly, continuously, as of right and as an easement will negate the claim of the right of way as a necessity. So the plaintiff has to abandon one of his pleas.Here the doctrine of election of pleas will apply. The plaintiff is supposed to elect one of the inconsistent pleas put forward by him and abandon the other. Such a relinquishment of a plea may be express (in writing) or implied. When the plaintiff adduces evidence he may elect one of those pleas and accordingly lead evidence. Here one claim cannot be pleaded as an alternative relief since both the claims are contradictory and the abandonment of a claim becomes inevitable.
Easement of necessity begins out of an implied grant or permission. A prescriptive right cannot begin out of an implied grant or permission.
Therefore, easement by prescription of a way does not begin as long as easement of necessity continues. The Kerala high Court in Ibrahimkutty v. Abdul Rahumankunju (1992(2) KLT 775) held that “The qualitative and quantitative requirements for the different kinds of easements are to a great extent mutually exclusive.” “It therefore follows that a claim of easement of necessity and prescription cannot co-exist. The origin of easement of necessity is on severance of tenements, while easement by prescription originates from express or implied grant.” “In cases where both easement of necessity and prescription are claimed, it can be seen that easement by prescription commences only when easement of necessity ends.” The above position was reiterated by the Kerala High Court in Devaki vs K.Joshi on 4 January, 2011 in which it was held that “easement of necessity has to necessarily arise at the time of severance. It cannot be postponed to a later date. If on the date of severance of tenement, it is found that dominant tenement holder did not have to use or did not use any portion of the property of the servient tenement owner, the dominant tenement owner at a later stage cannot claim a right of way as easement of necessity. Merely because there may not be a way for the plaintiffs to reach the outside world is not a ground to grant decree in their favour.” In Periyanna Gounder .v.Kumarasami 2000(1) MLJ 431m Madres High Court held that the very claim by prescription and necessity is itself inconsistent.
( Question from Munsiff Magistrate Exam 2022 Main paper)
