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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Vishakapatnam
TRANSFER OF PROPERTY
PROJECT
On
REVIVAL OF EASEMENTS
BY
C.ABHILASH
3rd SEMESTER
ROLL NO :32

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY


Vishakapatnam

INDEX
INTRODUCTION.3
CHARACTERISTICS OF EASEMENT3
EASEMENT ACCORDING TO INDIAN EASEMENT ACT 3
REVIVAL OF EASEMENT

EXTINCTION BY UNITY OF OWNERSHIP 6


SUSPENSION OF EASEMENT

CONLCUSION.8
BIBILIOGRAPHY.. 9

INTRODUCTION:

A right of use over the property of another. Easements frequently arise among owners of
adjoining parcels of land. An easement is the right to use the real property of another without
possessing it. A public right of way cannot be a easement1.
CHARACTERISTICS OF EASEMENT:

There must be dominant and servient tenement


The easement must accommodate the dominant tenement
The servient and dominant tenements must be owned by the different persons
The right must be capable of forming the subject grant

There must be dominant and servient tenement


The easement cannot exist in gross i.e without any estate in land to which the right is
connected.
The easement must accommodate the dominant tenement
The easement must benefit the dominant tenement
The servient and dominant tenements must be owned by the different persons
An easement is right of use over the property of another.One cannot have a easement over
their land.
The right must be capable of forming the subject grant
The servient owner must be fully able to grant an easement

EASEMENT ACCORDING TO INDIAN EASEMENT ACT


Section 4 of the Indian easement Act talks about the definition of easement
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 2.
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; and land on which the liability
1
2

http://legal-dictionary.thefreedictionary.com/easement
Indian easements Act 1882

is imposed is called the servient heritage, and the owner or occupier thereof
the servient owner.
ILLUSTRATIONS
(1) A, as the owner of a certain house, has a right of way thither over his
neighbour Bs land for purposes connected with the beneficial enjoyment of the
house. This is an easement
(2) A, as the owner of a certain house, has the right to go on his neighbours Bs
land, and to take water for the purposes of his household out of a spring therein.
This is an easement.

(3) A, as the owner of a certain house, has the right to conduct water from B?s stream to
supply the fountains in the garden attached to the house. This is an easement.
(4) A dedicates to the public the right to occupy the surface of certain land for the purpose of
passing and re-passing. This right is not an easement.
(5) A is bound to cleanse a watercourse running through his land and keep it free from
obstruction for the benefit of B, a lower riparian owner. This is not an easement.

REVIVAL OF EASEMENTS

Section 51 of the Indian easement Act talk about the revival of the easements
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 rebuilt upon the same site; and (c) when the
destroyed heritage is a dominate building and before twenty years have expired
such building is rebuilt upon the same site and in such a manner as not to
impose a greater burden on the servient heritage.

(A) when the destroyed heritage is, before twenty years have expired, restored by the
deposit of alluvion

If any one utilises the land near by the sea shore bund when it is destroyed due to the natural
calamities or any other reason and thereafter and same is restored before expiration of twenty
years for the reason of alluvion that is changes taken place in the sea, due to floods or other
circumstances which created in the sea and there by restored dominant heritage at the sea
shore bund
(B) when the destroyed heritage is a servient building and before twenty years have
expired such building is rebuilt upon the same site
If a person has easement right on a servient building when the building is destroyed easement
right is also destroyed if a building is contructed on the same site the easement right is
restored

(C) when the destroyed heritage is a dominate building and before twenty years have
expired such building is rebuilt upon the same site and in such a manner as not to
impose a greater burden on the servient heritage
If a person is having a easement right on the dominant heritage building and same has
destroyed and again restored same dominant heritage building before the expiration of twenty
years,the right enjoying on the dominant heritage building only restored and that over
greater burden should not be imposed on the servient heritage.In other words it can be said
that on the restoration of dominant heritage building greater burden should not be imposed
on the servient owner.
It was held in case Framji shapurji pathuck v Framji Edulji Dawaar 3 that such building
and same site does not mean a building of the same dimensions as the old one and so a
building erected partly on the site of the old and partly on the new site must be considered as
on the same site causing the revival of the easement provided there is no increase as result in
the burden on the servient tenement4
3
4

(1906)ILR 30 Bom 319


Halsburys Laws of India,Property and Easements,Lexis Nexis 2009 pg 658

ILLUSTRATION
A, as the absolute owner of field Y, has a right of way thither over B's field Z. A
obtains from B a lease of Z for twenty years. The easement is suspended so long
as A remains lessee of Z. But when A assigns the lease to C, or surrenders it to B,
right of way revives

Yosef David Varulekar vs Moses Solomon Talkar 5


In this case plaintiff is having easement right to use latrine constructed within his
premises by using the lane as available in the compound premises of defendant.
Since defendant obstructed the plaintiff usage of lane of his premises. Plaintiff
obtained decree against the defendant and same is challenged by the defendant
to the higher court .In this case plaintiff succeeds.

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
.
SECTION 46. Extinction by unity of ownership
An easement is extinguished when the same person becomes entitled to the
absolute ownership of the whole of the dominant and servient heritages.

Illustrations
(a) A, as the owner of a house, has a right of way over Bs field. A mortgages his
house, and B mortgages his field to C. Then C forecloses both mortgages and
becomes thereby absolute owner of both house and field. The right of way is
extinguished.
(b) The servient owner acquires the dominant heritage in connection with a third
person; the easement is not extinguished.
5

(1931) 33 BOMLR 1114

(c) The separate owners of two separate dominant heritages jointly acquire the
heritage which is servient to the two separate heritage; the easements are not
extinguished.
(d) The joint owners of the dominant heritage jointly acquire the servient
heritage, the easement is extinguished.
(e) A single right of way exists over two servient heritages for the beneficial
enjoyment of single dominant heritage. The dominant owner acquires only one of
the servient heritages. The easement is not extinguished.
(f) A has a right of way over Bs road. B dedicates the road to the public. As right
of way is not extinguished.
When easement right is existed between dominat heritage and servient heritage
when a third person obtains the easement right by purchasing dominant and
servient heritage he will become absolute owner and unity of ownership remains
with him. When court granted decree the unity of ownership is set aside the
decree prevails .Automatically easement revives

In Kandanath v chemboli valia veetil,Karnavan and Manager,Narayan


nair6 it was held that where

unity of possession continues for 20 years the

easement is destroyed altogether and does not revive upon the severance of
such possession after that period .

A suspended easement revives if the cause of suspension is removed before the


right is extinguished under section 47.

49. Suspension of easement


An easement is suspended when the dominant owner become entitled to
possession of the 7servant heritage for a limited interest therein, or when the
servant owner becomes entitled to possession of the dominant heritage for a
limited interest therein.
6

16 IC 375 Mad

According to Section 47 Of Indian Easement Act the Easement is extinguished if the


easement is not enjoyed .It is called Extinction of Easement for the Non Enjoyment.
If there is an suspension of easement the only way for revival of easement is the suspension
should be removed before the extinguishment of easement under section 47 of the Indian
easement Act
In a Important English case8
In this case plaintiff acquired by purchase an easement to pass up and down a stairway
situated between two adjoining buildings also an easement in the party wall,which were
suspended by the total destruction of the buildings by fire. It is held that by the reconstruction
of the buildings including the stairway and party wall as they existed originally , the easement
revived.
In Anantha v Ganu9 the right of easement also revives by estoppel where a person by his
conduct permits the other to believe that they will have a right to irrigate upon their repairing
well and the later acted upon the permissions and repairs the well10.

Conclusion
The destruction of the dominant tenement causes the extinction of the easement .For example
if a house is pulled down it puts end to the ancient lights .But under section 51 the right is
revived if before 20 years house is rebuilt in such a manner it should not impose greater
burden on the servient tenement
The restoration of the servient tenement revives the easements lost by its destruction
By the union of the servient and dominant tenements in the same hand in absolute
ownership,the easement is destroyed .If a grant or bequest which brought about the unity of
ownership is set aside by the court of law , or , in the case of an easement of neccesity , the
unity of ownership ceases and there is revival of the easement

Douglas v coonleys
AIR 1921 Bom 417
10
Halsburys Laws of India,Property and Easements,Lexis Nexis 2009 pg 658
9

BIBILIOGRAPHY
Indian Easement 1882 Act
Halsburys laws of India , Property and Easements
G.C.V Subba Raos Law of Transfer of Property, Easement,Trust and Wills.
Web sources
Legal dictionary
Indain kanoon
Westlaw India