Easement Right Cannot Be Created By Parties Themselves, Has To Be Proved According To The Act: Madras High Court

The Madras High Court bench of Justice Teeka Raman has held that the easement right cannot be created by the act of the parties themselves without any recital in the documents. The easement right is a statutory right and therefore has to be proved in a manner known to law. The court was hearing a second appeal filed by one Nallammal for permanent injunction. The lower courts had passed orders against the appellant holding that the respondents herein (defendants in the suit) had a right of easement by necessity. Background The plaintiff sought for the permanent injunction restraining the defendants from interfering with his possession. The respondents/defendants came forward with a case of right to cart track alleged to have existed in the southern side of the property as a right of easement and therefore claims entitlement to use the same. The court was satisfied on the question of title of the parties to their respective properties. The only point for consideration was whether the defendant had an easement right over the property of the plaintiff. According to the plaintiff, the defendant has a pathway to reach his property, which is running on the western side of S.No.88/1 and they never used the plaintiff's property to reach S.No.88/1. The defendants have invented a novel right of cart track in S.No 88/1 through the S.No. 88/3 in which the plaintiffs property is also situated but there is no such cart track nor are they entitled to it. Neither the defendants nor their ancestors or predecessors of the title and enjoyed such right over plaintiffs property. According to the defendants, they claim easement of necessity grant and prescription viz., all the points available under the Easement Act as a wholesome defence. The defendants claimed that they have purchased the undivided two cents in S.No.88/3. Court's Observation The court started by going into the meaning of the term "right" as contained under the Easement Act. "A 'right' as an 'easement right' means and includes a right to use on the other man's property either for necessity or by permission or by prolonged use for more number of years as mentioned under the Indian Easement Act, 1882." The court relied upon the village map in which it can be clearly seen that the cart track stops at a particular point, namely, before the plaintiff's land. Hence, the onus was on the defendants to prove the existence of easement right of using the pathway, which is alleged to have situated in the plaintiff's land, either by the defendants or by the predecessors in title since the land is exclusively private land of the plaintiff. After going through the documents submitted by the parties, the court concluded that there was no reflection of any cart track in the parent document. The defendants had themselves divided the property amongst themselves and created a pathway in their private lands for the easy and convenient enjoyment of their property. Other than the mere oral submissions of the defendants, there were no documentary evidence to prove existence of an easement right. The court also relied on the decision in K. Kalianna Gounderand another v. Sundararaj and another (2019) wherein it was held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act. It has been further held that easement right is statutory right subject to the conditions and pre-requisite conditions and the burden of prove as stated in the Indian Easement Act and it is "neither can be created nor be destroyed by reading of recital in document to the convenience of the parties". Thus, in the absence of any recital in the parent document, the defendants could not go through the private land of the plaintiff claiming an easement right. The defendants merely made a clandestine attempt to trespass into the land of the plaintiff by making a false plea of easment right. The court therefore held that the plaintiff successfully proved his case and the defendants had failed to discharge the onus of prove of easement right over the plaintiff's land.Case Title: Nallammal and another v. Sengoda Gounder and othersCase No: S.A No. 302 of 2012Citation: 2022 LiveLaw (Mad) 170Click here to read/download judgement

Easement Right Cannot Be Created By Parties Themselves, Has To Be Proved According To The Act: Madras High Court

Upasana Sajeev

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