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property_law:easement:acquire

Who may acquire easements

Section 12 of The Indian Easements Act, 1882.

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.

Para 1

An easement, for the beneficial enjoyment of any property, can be acquired either by its owner or by its occupier on behalf of the owner.

Para 2

As we have seen in section 8, ill. (e) a co-owner cannot impose an easement on the joint land without the consent of the other co-owners but for the acquisition of an easement no such consent is necessary. The reason for this is obvious.

Para 3

The reason why a lessee cannot acquire easements over the property leased to him is that he is put in possession of this property by his lessor and the rights which he exercises over it for the benefit of other immovable property of his own are exercised in virtue of his possession of it, and not as easements.

A tenant also cannot, as against his landlord, acquire by prescription an easement in favour of the land which he holds as such tenant over other land belonging to his landlord. The reason is that by virtue of the rule given in para 1, a tenant or other person in possession of some land, can, for the beneficial enjoyment of such land, acquire an easement only on behalf of the owner (here landlord) and not against him. Moreover, for the existence of an easement there should be two distinct heritages owned by two different persons. Here the owner of both heritages is the same person. For the same reasons it has been held, that a tenant of land, though having a permanent right of tenancy cannot acquire a right of easement by prescription in other lands of his lessor. A lessee or other person In lawful possession of land may maintain an action for the disturbance of an easement.

Important Question

Can a tenant of land who has permanent rights in it acquire an easement by prescription in other lands of his lessor? State your reasons.

Ans. No. The reason is that the land in which the tenant has permanent rights is the landlord’s and the landlord is in possession of it through the tenant. The tenant is not an owner claiming a right in respect of a dominant tenement over another servient tenement. He is not claiming this right for or on behalf of his landlord, but he is claiming it adversely to him, although for or on behalf of his (landlord’s) own properly.


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Created on 2021/04/02 11:38 by LawPage • Last modified on 2021/04/09 22:26 (external edit)