Section 25. Acquisition of easement by prescription
(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) 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.
(2) 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.
(3) Where the property over which a right is claimed under sub-section (1) belongs to the government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.
Explanation : Nothing is an interruption with the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
Acquisition of Easements by Prescription – According to Sec. 2(f), Limitation Act, “Easement” includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to, or subsisting upon, the land of another.
Sec. 25 of the Limitation Act provides that:
(a) Where the access and use of light or air to and for any building have been (i) peaceably enjoyed, (ii) as an easement, (iii) and as so right, (iv) without interruption, and (v) for 20 years (30 years in the case of property belonging to the Government), then such right to such access and use of light or air becomes absolute and indefeasible.
(b) Where any way or watercourse or the use of any water or any other easement (whether affirmative or negative), has been – (i) peaceably and openly enjoyed, (ii) by any person claiming title thereto (iii) as an easement, (iv) and as of right, (v) without interruption, and (vi) for 20 years (30 years in the case of property belonging to the Government, as laid watercourse, use of water or other easement becomes absolute and indefeasible (Sec. 25(1).
It is also clarified that-
(i) The period of 20 (or 30, as the case may be ) years is to be taken to be a period ending within two years before the institution of the suit wherein the claim to which such period relates is contested (Sec. 25(2).
(ii) “Interruption” for the purpose of Sec. 25, means actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and the person making or authorising the same to be made (Explanation, Sec. 25).
Easement is acquired by prescription. Prescription is the acquisition of title to land or to an easement or an interest in land, by long user or enjoyment against the will of the former owner, or in disregard of any other claim of title.
Sec. 25 is concerned only with the acquisition of the easement and does not purport to measure the extent of the right or to indicate the remedy by which a disturbance of the right is to be vindicated. Sec. 25 will not apply to easements acquired otherwise than under the provisions of Sec. 25, such as grant, express or implied, custom etc.
The maxim of the law is that the enjoyment of easement must be nec vi, nec clam, nec precario, that is, it must be neither by violence or force, nor by stealth, nor must it be permissive or precarious (i.e. by leave and licence; payment of any rent howsoever nominal). These three requirements are embodied in Sec. 25 of the Limitation Act.
There is a difference between the mode of enjoyment of air and light on the one hand, and of the other easements on the other hand, It is sufficient if the air and light have been enjoyed peaceably, but the other easements must have been enjoyed openly and peaceably. The reason for this difference is that may one by simply looking at the condition of his neighbour’s premises from the outside can see what light or air his neighbour enjoys; there can be no question of a stealthy user. But the other easements may be used clandestinely viz. in the case of the use of a way or of a watercourse.
The word “openly” means that the enjoyment has from the very beginning, been visible and manifest, nor furtive or secret.
As an Easement – A right of ownership and a right of easement are incompatible. If a person claims a site as owner, he cannot claim a right of way or user of watercourse over the same as an easement.
The words “as an easement” show that the acts relied upon as evidence of the existence, of a right must be done by one person upon the land of the other. The acts must not be done by him upon his own land or land in his possession. While unity of possession lasts, no question of easement can arise.
A plaintiff may claim an easement and ownership in the alternative in the same suit.
Easement is not a right to take earth from land of another person but a profit a prendre in gross. ‘Profit a prendre’ is the right of taking soil, produce or minerals, and the like in which there is a supposable value from the land of another. The following are some of the rights of easement:
i. A right of fishing in another’s water (Lokenath V. Jabnia Bibi, 14 CLJ, 572)
ii. The right to maintain a ferry over the property of another (Parmeshari V. Mahomed, 6 Cal. 608).
iii. Where the roof of one person overhangs the land of another for more than 30 years, such enjoyment will vest in the former a proprietary right in the space covered by the overhanging roof (Mohanlal Vs. Amratlal, 3 Bom. 174)
iv. A tenant may have a right of pasturage on his landlord’s waste lands by immemorial user (Bholanath V. Midnapur Zamindary Co., 31, Cal. 503 (PC).
v. A right to discharge rain-water flowing from the roof of the plaintiff’s house upon the roof of the defendant’s house can be acquired by prescription (Mohanlal v. Amratlal, 3 Bom. 174).
vi. An easement of the supply of water from a natural stream may be acquired by 20 years’ user under Sec. 25 (Abdul Rahman V. Muhammad Alam, 57 PR 1918.
Without Interruption – The expression “without Interruption” means without any obstruction on the part of the person against whom the easement is claimed. Mere protests by the latter or mere verbal denials of the right claimed (Ram Sarup V. Abdul Haq AIR 1931 Lah. 395), not followed by any act to prevent the user, do not constitute an interruption. On the other hand, ineffectual opposision to the exercise of what is claimed to be a right may be evidence in support of the right rather than of its non-existence.
The term ‘interruption’ in Sec. 25 is altogether inapplicable to any voluntary discontinuance of the user by the claimant himself.
“Without Interruption” does not imply that there must be a continuous user. In the case of a “discontinuous Easement” continuous use is, of course, not possible. But even as to a “Continuous easement” like right to the uninterrupted flow of a stream, it is not necessary that the right should have been enjoyed at every moment; so that there may be a user “without interruption” although the stream remains dry for the greater party of the year. What is necessary is that the right must have been substantially enjoyed whenever occasion required. Mere non-user on the part of person claiming the easement and at his own will, does not constitute an interruption, unless there has been such abandonment that intentional relinquishment can be presumed.
However long the period of actual enjoyment may be, no absolute and indeafeasible right can be acquired, until the right is brought in question in some suit, and until it is so brought, the right is inchoate (incomplete) only; and in order to establish it when brought into question, the enjoyment relied upon must be an enjoyment for twenty years up to ‘within two years of the institution of the suit’. The right is perfected only by at least twenty years’ enjoyment continuing up to within two years of the suit in which the right is litigated. Thus, there the twenty years’ enjoyment has been interrupted, and no suit is brought within two years from such interruption, the right cannot be established.
The expression ‘belongs to the Government’ means that at the time the right is claimed in the suit, the servient tenement must belong to the Government. The word ‘belongs’ has reference to ownership and not possessions. If the Government is owner of the land on the date the claim of easement is made, a period of 30 years is to be proved, even if the said property may be in possession of a lessee or other person with a limited right.
In Dwarka V. Patna City Municipality (AIR 1938 Pat. 423), it has been held that an interruption within the meaning of the Explanation to Sec. 25 for more than a year will operate to prevent the claimant from adding the period of his previous enjoyment of the right to any period of enjoyment after such interruption so as together to make up the requisite total of 20 years, but will not, by itself, suffice to nullify any right that may have been already acquired by 20 years’ uninterrupted enjoyment, for the section entitled the claimant to sue within two years.