CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001.

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE

TITLED ON

“OBLIGATIONS OF SERVIENT OWNER’

SUBMITTED TO:

DR. VIJAY KUMAR VIMAL

ASSISTANT PROFESSOR

PROPERTY LAW

SUBMITTED BY:

SAIM IMTIYAZ

ROLL NO: 1965

SEMESTER: SECOND

COURSE: B.A.LL. B (Hons.)

SESSION: 2018 – 2023

DECLARATION

I hereby declare that the project entitled “OBLIGATIONS OF SERVIENT

OWNER” submitted by me at CHANAKYA NATIONAL LAW
UNIVERSITY is a record of bona fide project work carried out by me under
the guidance of our mentor DR. VIJAY KUMAR VIMAL. I further declare
that the work reported in this project has not been submitted and will not be
submitted, either in part or in full, for the award of any other degree or diploma
in this university or in any other university.

_________

SAIM IMTIYAZ

Roll no. – 1965

B.ALL. B. (Hons.)

Session – 2018-2023

2|Page
ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable to
an extent. This research work, although prepared by me, is a culmination of efforts of a lot of
people who remained in veil, who gave their intense support and helped me in the completion of
this project.

Firstly, I am very grateful to my subject teacher Dr. VIJAY KUMAR VIMAL, without
the kind support and help of whom the completion of this project was a herculean task for me.
She donated her valuable time from her busy schedule to help me to complete this project. I would
like to thank her for her valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project. I am also thankful to the library staff of my college
which assisted me in acquiring the sources necessary for the compilation of my project.

Last but not the least, I would like to thank the Almighty who kept me mentally strong and in
good health to concentrate on my project and to complete it in time.

I thank all of them!

SAIM IMTIYAZ

Roll No. – 1965

B.A.LL.B. (Hons.)

Session – 2018 -2023

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CERTIFICATE

This is to certify that the project report entitled “OBLIGATIONS OF SERVIENT OWNER”
submitted by SAIM IMTIYAZ in partial fulfilment of the required for the award of degree of
B.A. LL. B to Chanakya National Law University, Patna is a record of the candidate’s own work
carried out by him under my supervision. The matter embodied in this project is original and has
not been submitted for the award of any other degree.

DATE: -

(Dr. VIJAY KUMAR VIMAL)

Assistant Professor, PROPERTY LAW

III | P a g e
TABLE OF CONTENTS

DECLARATION ________________________________________________________________________________ II

ACKNOWLEDGEMENT _________________________________________________________________________ II

CERTIFICATE ________________________________________________________________________________ III

TABLE OF CONTENTS _________________________________________________________________________ IV

1. INTRODUCTION ____________________________________________________________________________ 5

AIMS AND OBJECTIVE __________________________________________________________________________ 7

SOURCES OF DATA ____________________________________________________________________________ 7

LIMITATIONS OF STUDY ________________________________________________________________________ 7

TENTATIVE CHAPTERISATION ___________________________________________________________________ 7

2. EASEMENT ______________________________________________________________________________ 8

WHAT IS AN EASEMENT? _____________________________________________________________________ 8

HISTORICAL BACKGROUND OF EASEMENTS ______________________________________________________ 9
EASEMENT DIFFERENTIATED FROM OTHER CONCEPTS_____________________________________________ 10
REQUIREMENTS OF A VALID EASEMENT ________________________________________________________ 11

3. SERVIENT OWNER _______________________________________________________________________ 13

OBLIGATIONS OF SERVIENT OWNER ___________________________________________________________ 14

ILLUSTRATIONS: ______________________________________________________________________________ 14

4. NATURE & CHARACTERISTICS OF EASEMENT _________________________________________________ 16

[B]- Easement is a Right over the Land of Another: _____________________________________________ 17

[D]- Easement should be Beneficial to the Dominate Owner: _____________________________________ 19

5. CONCLUSION & SUGGESTIONS _____________________________________________________________ 21

BIBLIOGRAPHY ______________________________________________________________________________ 22

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1. INTRODUCTION

WHAT IS AN EASEMENT?
The term ‘easement’ comes from the Old Latin word ‘aisementum’ meaning “comfort,
convenience or privilege” and it developed into “a legal right or privilege of using something not
one's own" from the early 15c. An easement is the grant of a nonpossessory property interest that
grants the easement holder permission to use another person's land. In simple terms, it refers to
the right which a man sometimes has over one piece of land by reason of his ownership of another.
Section 4 of the Indian Easement Act, 1882 defines it as follows:
“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.” 1
Easements are nowhere defined in English law. Lord Esher in
# Metropolitan Railway V. Fowler 2defines it as “some right which a person has over land which
is not his own”. The English Court introduces them by saying: The common law recognized a
limited number of
rights which one landowner could acquire over the land of another; and these rights were called
easements and profits. Examples of easements includes rights of way, rights of light and rights
of water.

DOMINANT AND SERVIENT OWNER

The landowner who will benefit from the property which is not his own and over which he has a
right is called dominant tenement and the owner of such a land is called the dominant owner
because the owner has control over the use of that particular land which he does not possess.
The actual landowner who cannot object to the other using his land is called servient tenement
3
and the owner of such a land is called servient owner because he has to abide by the requirements
and convenience of the dominant owner. In fact, whether he likes it or not, it is a burden brought
to bear on him by grant, by custom or by prescription. He cannot do anything on his own land

1
The transfer of Property Act, Mulla.
2
Metropolitan Railway Co v Fowler [1892].
3
Property law, Dr. Poonam Pradhan Saxena.
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which affects the dominant heritage and he is bound to suffer for the advantage of the dominant
owner.

Servient Heritage means an inherited property over which the dominant owners have a right to
use it to their advantages. Dominant Heritage means inheriting a right over another’s property
without owning it.
Section 4 of the Indian Easements Act, 1882 “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; the land on which the liability is imposed is called the servient heritage,
and the owner or occupier thereof the servient owner.” 4
E.g. X owns a piece of land. Y has the right of way over it. Here X is the servient owner and has
the servient heritage. Y is the dominant owner and he has the dominant heritage. The dominant
and servient owners have certain rights and obligations to maintain and preserve the easement.
While exercising his right over the property of the servient heritage, the dominant owner has
responsibilities to preserve the easement. His acts and deeds shall no put the servient owner into
inconvenience. Being the actual user he shall rectify the damages if any caused by his acts at his
own expense. The servient owner is not obliged to do anything for the advantage of the dominant
heritage. He has no liability whatsoever to construct a way for the use of the dominant owner or
to carry out repairs in case of any damage to the passageway. As the holder of the property he is
free to use the servient heritage in any manner he likes, but his acts shall not dilute the right of
the dominant owner.

4
Transfer of property act, S N Shukla.
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AIMS AND OBJECTIVE

 The researcher tends to throw some lights on the Rights of the servient owner
 The researcher tends to know about nature and characteristics of easemen

SOURCES OF DATA

The researcher uses both, primary as well as the secondary sources to complete the project.

 Primary Sources: Books, Interviews

 Secondary Sources: Newspapers, journals, cases and websites and Wikipedia.

LIMITATIONS OF STUDY

The researcher has territorial, monetary and time limitations in completing the project.

TENTATIVE CHAPTERISATION

 INTRODUCTION
 EASEMENT
 MODES OF EXTINGUISHMENT OF EASEMENTES
 SERVIENT OWNER
 NATURE & CHARECTERISTICS OF EASEMENT
 CONCLUSION AND SUGGESTIONS.

7|Page
 2. EASEMENT

WHAT IS AN EASEMENT?

The term ‘easement’ comes from the Old Latin word ‘aisementum’ meaning “comfort,
convenience or privilege” and it developed into “a legal right or privilege of using something not
one's own" from the early 15c. An easement is the grant of a nonpossessory property interest that
grants the easement holder permission to use another person's land. In simple terms, it refers to
the right which a man sometimes has over one piece of land by reason of his ownership of another.
Section 4 of the Indian Easement Act, 1882 defines it as follows:
“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.” 5
Easements are nowhere defined in English law. Lord Esher in
# Metropolitan Railway V. Fowler 6defines it as “some right which a person has over land which
is not his own”. The English Court introduces them by saying: The common law recognised a
limited number of
rights which one landowner could acquire over the land of another; and these rights were called
easements and profits. Examples of easements includes rights of way, rights of light and rights
of water.
Illustrations
(a) A, as the owner of a certain house, has a right of way thither over his neighbour B's land for
purposes connected with the beneficial enjoyment of the house, this is an easement.
(b) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take
water for the purposes of his household out of a spring therein. This is an easement.
(c) 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.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own
cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family,

6
IBID 2.
8|Page
guest’s lodgers and servants, water or fish out of C's tank, or timber out of D's wood or to use,
for the purpose
of manuring his land, the leaves which have fallen from the trees on E's land. These are easements.

(e) 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.
(f) 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 .

HISTORICAL BACKGROUND OF EASEMENTS

The concept of easement7 :can be traced to antiquity and it is said that easement is as old as the
concept of property itself. The earliest reference of easements is found in a. Halhed Gentoo Code
which is a compilation of the ancient Hindu laws in force during the period 1773-1775 in India
under the direction of Warren Hastings. From the code it appears that a person had a right of
easement in respect of privacy, light, air and discharge of water through drains. The ancient Hindu
law text b. ‘Vivada Chinthamani’ also makes a reference to the concept of easements.
Hamilton’s edition of the c. Hedaya digest shows that a right in the nature of a waste land is
acquired by one who digs a well in the waste land that no one shall dig within a certain distance
of it so as to disturb the flow of water. It also recognises other easmetary rights which include the
right to water for irrigation and the right to discharge water on the terrace of another.
The concept of easements: were known as by an umbrella term called as ‘servitudes’ in Roman
law which was broader than the former. Praedial Servitudes was the Roman law equivalent of
Easement relating to immovable. Servitudes were divided into two types namely., (a). Rural
Servitudes (Right of way for man, passage for animals, etc.,) (b). Urban Servitudes (Right to
support to buildings, Right to Light, etc.,). Servitude is a device that ties rights and obligations to
ownership or possession of land so that they run with the land to successive owners and occupiers.
The whole bundle of rights which constitute the complete ownership of property was called as
dominium, servitudes were regarded as fragments of dominium severed from the original stock
and granted to some person other than the original proprietor in restriction of the latter’s absolute
ownership. It was referred to as ‘servitudes’ because the property, over which they exercised,
became subject to a sort of slavery, as it were for the benefit of the dominant owners.

7
Property law, Dr. Poonam Pradhan Saxena.
9|Page
The notion of easements during its early days in England was an admixture of Roman, Saxon,
Danish and Briton Law8. In this period, the remedy for disturbance of an easement lay by action
for damages in law or a suit for injunctions in equity. After the abolition of the equity courts by
virtue of the Judicature Act, 1873 both remedies were available in the Courts.

EASEMENT DIFFERENTIATED FROM OTHER CONCEPTS

An easement involves a right to use the other's land, a real covenant the right to insist that
the other perform a land related duty, and an equitable servitude the right to control the use to
which the other may put his land. Examples are, respectively, a right of way to cross over a
neighbor's land, a right that a neighbor share the cost of maintaining a boundary fence, and a right
that a neighbor not use his land for commercial purposes.
The ownership of an easement is a mere right which confers certain rights over the land
in question, but never any exclusive right to possession. In common law, an easement came to
be treated as a property right in itself and is still treated as a kind of property by most jurisdictions.
In some jurisdictions, another term for ‘easement’ is equitable servitude, although easements do
not have their origin in equity.
An easementary right is often described as the right to use the land of another for a special
purpose9. Unlike a lease, an easement does not give the holder a right of "possession" of the
property, only a right of use. It is distinguished from a license that only gives one a personal
privilege to do something even more limited on the land of another. An example of a license is
the right to park a car in a parking lot with the consent of the parking lot owner. Licenses in
general can be terminated by the property owner much more easily than easements. Easements
also differ from licenses in that most easements (“easements appurtenant”) are attached to and
benefit another parcel of land, not a specific person. This means that a
property that enjoys an easement over another will continue to enjoy the easement even if the
property gets transferred to a different owner.
A p rofitaprendre refers to the right to remove and appropriate any part of the soil belonging to
another, or any other thing growing upon or attached to the soil for the purpose of the profit to be
gained from the property, thereby acquired, that is, for example, a right to take gravel, stone, trees
and so forth. (Chundee Churn Roy v. Shib Chunder Mundul 10).

8
The transfer of Property Act, Mulla.
9
The transfer of Property Act, SN SHUKLA.
10
(1880) ILR 5 Cal 945.
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Historically, the common law courts would enforce only four types of easement: the right-of-way
easements of way), easements of support (pertaining to excavations), easements of "light and air",
and rights pertaining to artificial waterways, although this is not so now. Traditionally, it was a
right that could only attach to an adjacent land and was for the benefit of all, not a specific person;
this is also no longer true in many jurisdictions.

REQUIREMENTS OF A VALID EASEMENT

The essential features of an easement, in the strict sense of the term, are therefore these: (a) Itis
an incorporeal right; a right to the use and enjoyment of land not to the land itself;
(b) it is imposed upon corporeal property; 11
(c) it requires for its constitution two distinct tenements the “dominant tenement” which
enjoys the right, and the “servient tenement” which submits to it. This last characteristic
excludes from the category of easements the so called “easements i n gross, such as a right of
way conferred by grant independently of the possession of any tenement by the grantee. The true
easement is an " appendant " or " appurtenant " easement, not an “easement in gross”. Both the
Indian as well as the English Law of easements does not recognize the concept of ‘easements in
gross’ as they do not comprise of the dominant and servient estate.
In order to assess the validity of an easement it is essential to look both at its substantive
characteristics and at the way in which it has been created. The characteristics that are necessary
for the validity of an easement has been laid down by the decision in
#InR e Ellenborough Park. The Court of Appeal had to decide the status of a right for residents
to use a garden in the middle of a square around which their houses were built. That case gave
rise to the four well-known
characteristics of easements viz.,
(1) there must be a dominant tenement and a servient tenement;
(2) the easement must accommodate the dominant tenement;
(3) the dominant and servient tenements must be owned by different persons; and
(4) the easement must be capable of forming the subject matter of a grant.
In India, there are two more requirements namely that the easement should be for the ‘beneficial
enjoyment’ of the dominant tenement and that the easement should entitle the dominant owner to
do or to continue to do something, or to prevent or to continue to prevent, something in or upon

11
Law of transfer of property, G C V Subba Rao.
11 | P a g e
or in respect of the servient tenement. (C. Mohammed v. Ananthachari) 12The courts have from
time to time rejected claims to easements on the ground that the right would be too wide and
vague.
Characteristics of an easement under Indian law:
A] There must be a dominant and servient tenement.
B] The right of easement must be possessed for the beneficial requirement of the dominant
tenements.
C] Dominant and servient owners must be different persons.
D] The right should entitle the dominant owner to do and to continue to do something or to
prevent and continue to prevent something being done, in or upon or in respect of the servient
tenement.
E] That something must be of a certain or well defined character and must be capable of forming
the subject matter of a grant
#In Hunter v Canary Wharf Limited13, although the right to television reception was not pleaded
as an easement, the House of Lords nonetheless considered the issue. Lord Hoffmann concluded
that such a right should not be recognized as it would place a burden on a wide and indeterminate
area. As already pointed out there must be a dominant owner and a servient owner, it must be for
the advantage of the dominant owner, it may be permanent or temporary, or for a limited period
of time or seasonal or for a specified event or out of necessity, the owners must be two different
persons and it must be capable of forming the subject matter of a grant.
The Indian law relating to Easements includes p rofitaprendre14 provided it is
supported by a dominant and servient heritage (profitaprendre appurtenant). This is to be
contrasted with the English Law wherein p rofitaprendre and easements are separated. However,
the Indian position is such that it does not recognize profitaprendre in gross.

12
Equivalent citations: AIR 1988 Ker 298.
13
Hunter v Canary Wharf Limited.
14
Transfer of property act, S N Shukla.
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 3. SERVIENT OWNER

A „Servitude‟ is a right either to use a thing belonging to another in some definite way or to
prevent the owner thereof making some particular use of it. The property over which such a
right is availed was called the „Res Serviens‟ or „Serien Tenement‟.15 In English law
servitudes are known as “Easements”. Easements are helpful for providing pathways across
two or more pieces of property or allowing an individual to fish in a privately owned pond.
An easement is considered as a property right in itself at common law and is still treated as a
type of property in most jurisdictions.

An easement is the grant of a nonpossessory property interest that grants the easement holder
permission to use another person's land. There are different kinds of easements. If an easement
appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement
that bears the burden, and the other the dominant tenement, which benefits from the grant of the
easement and has permission to use the servient land in some manner.

The rights of an easement holder vary substantially among jurisdictions. Historically, the
common law courts would enforce only four types of easement:16

1. Right-of-way (easements of way)

2. Easements of support (pertaining to excavations)
3. Easements of "light and air"
4. Rights pertaining to artificial waterways

Modern courts recognize more varieties of easements, but these original categories still form
the foundation of easement law.
The most common type of easement is the right to travel over another person's land, known as
a right of way. In addition, property owners commonly grant easements for the placement of
utility poles, utility trenches, water lines, or sewer lines. An easement may be for an identified
path or for use at any reasonable place.

15
Transfer of property act, S N Shukla.
16
The transfer of Property Act, Mulla.
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 Easements can be created in a variety of ways. They can be created by an express grant, by
implication, by necessity, and by adverse possession. Easements are transferrable and transfer
along with the dominant tenement.
Additionally, easements can also be terminated. An easement can be terminated if it was
created by necessity and the necessity ceases to exist, if the servient land is destroyed, or if it
was abandoned.

OBLIGATIONS OF SERVIENT OWNER

The land for the beneficial enjoyment of which the right exists is called the dominant heritage,
& the owner or occupier thereof the dominant owner; the land on which the liability is imposed
is called the servient heritage, & the owner or occupier thereof the servient owner17.

Explanation: in the first & second clauses of this sec., the expression “land” includes also
things attached to the earth: the expression beneficial enjoyment” includes also possible
convenience, to remote advantage, & even a mere amenity; & the expression “to do something”
includes removal & appropriation by the dominant owner for the beneficial enjoyment of the
dominant heritage. Of any part of the soil of the servient heritage or anything growing or
subsisting thereon.

Illustrations:

a) A, as the owner of certain house, has a right of way thither over his neighbor B‟s land
for purposes connected with the beneficial enjoyment of the house. This is an easement.
b) A, as the owner of a certain house, has the right to go on his neighbor B‟s land, & to
take water for the purposes of his household out of a spring therein. This is an easement.
c) 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.
d) A, as the owner of a certain house & farm, has the right to graze a certain number of
his own cattle on B‟s field, or to take, for the purpose of being used in the house, by
himself, his family, guests, lodgers & servants, water or fish out of C‟s tank, or timber
out of D‟s wood, or to use, for the purpose of manuring his land, the leaves which have
fallen from 18the trees on E‟s land. These are easements.

17
The transfer of Property Act, Mulla.
18
Law of transfer of property, G C V Subba Rao.
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 e) A dedicates to the public the right to occupy the surface of certain land for the purpose
of passing & re-passing. The right is not an easement.

f) A is bound to cleanse a water course running through his land & keep it free from
obstruction for the benefit of B, a lower riparian owner. This is not an easement.

Therefore, it is clear that an “easement” as understood in Indian Law is wider in scope than the
corresponding English conception.

As per section 25 of the Act19, the expenses incurred in constructing works, or making repairs,
or doing any other act necessary for the use or preservation of an easement, must be defrayed by
the dominant owner.

As per section 26 20of the Act, where an easement is enjoyed by means of an artificial work, the
dominant owner is liable to make compensation for any damage to the servient heritage arising
from the want of repair of such work.

As per section 27 21of the Act, the servient owner is not bound to do anything for the benefit of
the dominant heritage, and he is entitled, as against the dominant owner, to use the servient
heritage in any way consistent with the enjoyment of the easement; but he must not do any act
tending to restrict the easement or to render its exercise less convenient.

As per section 29 of the Act, the dominant owner cannot, by merely altering or adding to the
dominant heritage, substantially increase an easement.

19
Transfer of property act, S N Shukla.
20
IBID 18.
21
IBID 18.
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 4. NATURE & CHARACTERISTICS OF EASEMENT

It is necessary to note the characteristic features of an easement for there are other rights
closely resembling an easement which, however, are not easements. On a transfer of property
all easements connected therewith pass to the transferee without any specific grant1 inferior
rights,
e.g. a license, a personal covenant as between adjoining owners, though closely relating to an
easement, do not pass by a mere transfer of the property. It is thus of a great practical
importance to distinguish an easement from other rights.

[A]- Easement is Appurtenant to Land: An easement is a right which the owner or

occupier of certain land possesses as such i.e., as such owner occupier of the land22.

Thus the essential feature of an easement is that it is possessed by a person in respect of his
enjoyment of a particular piece of land to which it is appurtenant. There can be no easement
in gross, i.e., irrespective of one’s enjoyment of some tenement.
Illustration: In an action of trespass defendants justified under a right of way supposed to
have been conveyed to them by S. S himself claimed under a conveyance containing the
following words: “with all ways………. Particularly the right & privilege to & for the owners
& occupiers of the premises conveyed& all person having occasion to resort thereto of
passing & re-passing for all purposes in, over, along& through a certain road”. The
defendant’s purchasers of the premises for S claimed the right of way over the road “for their
own purposes”23:
Held: [1]- The right granted by the conveyance to S was not restricted to a user of the road
for purposes connected with the enjoyment of the premises conveyed to S. A vendor cannot
create rights not connected with enjoyment of the land & annex them to it.
[2]- The right claimed by the defendant not being limited to purposes connected with
the use & enjoyment of the premises could not pass to a grantee as an easement appurtenant
to it…...

Dominant Tenement: since easements are annexed to the ownership of some land, they are
regarded as extensions of the ordinary rights of ownership in the land for the beneficial

22
Transfer of property act, S N Shukla.
23
Transfer of property acT MULLA.
16 | P a g e
 enjoyment of which they exist. The land to which they are thus appurtenant is called the
dominant tenement & the person entitled to exercise them by virtue of his interest in the
dominant tenement is called the dominant owner.24

It is clear that according to sec- 4 of the Indian Easements Act the position in India is
that here can be no easement in regard to an incorporeal right.25
This characteristic of an easement to attach itself to a tenement is called “appurtenance”, &
the easement is said to be appurtenant to the dominant tenement

[B]- Easement is a Right over the Land of Another:

Servient Tenement: An easement is a right…. to do & continue to do something or to prevent

& continue to prevent something being done, in or upon, or in respect of certain other land not
his own….” easement is not a personal right of the owner but attaches to the dominant
tenement. The property hearing the burden of the easement is called the servient tenement &
its owner or occupier is called the servient owner26.

Right of the Dominant Owner: since an easement imposes an obligation only on the service
tenement & not on the servient owner personality, it is not a jus in persona, but a jus in rem.
It is a necessary characteristic of an easement that it should be right not merely to do or prevent
from being done some single oe isolated act, but should extend over a period of time, though
not continuously, to a repetition of the act when occasion arises.

Right should be Definite: the right claimed as an easement should not be vague, indefinite or
incapable of definition. Thus a right to the free current of air floating over the whole of the
tenement & not in respect of some defined channel, such as a ventilator in a building, is not an
easement.2 The right claimed as an easement should generally be one which might have been
made the subject matter of a deed of grant.27

Devolution of the Right: an easement attaches to the dominant & servient tenements as such
permanently binding the land over which it is exercisable & permanently continuing as a

24
Law of transfer of property, G C V Subba Rao.
25
sec-8. TPA, 1882; Sec-9 Indian Easements act, 1882; sec- 62[1], law of Property act, 1925.
26
- Harrisv. De Pinna {1863}.
27
- Raja venkata rao v. Raja sitaramchandra rao {1940}.
17 | P a g e
 benefit to the land for the advantage of which it exists. For this reason, it follows the tenements
into the hands of whosoever may from time to time become the dominant or servient owner.
The occupier of the dominant tenement, even though he may be a tress-passer is entitled to
exercise any easement attached to it.28

Obligation on Servient Owner: the obligation imposed on a servient owner is to submit the
commission of some act on his tenement by the dominant owner or to refrain from committing
some act himself. The servient owner is under no obligation to do any positive act himself.29
An easement should not deprive the servient owner wholly of his right to use his land & oust
him from his tenement altogether.4 This is because an easement involves a curtailment, without
amounting to a nullification of the servient owner’s rights.

[C]- Dominant & Servient Owners should be Different Persons: A right of easement involves
an extension of the rights of ownership of the dominant tenement & a curtailment of the ordinary
rights of the owner of the servient tenement. The two tenement should belong to different owners
for one servient cannot have an easement in respect of one’s own land. An easement is some
right which a person has over land which is not his own but if the land is his own, if he has an
interest in it, then this right is not an easement. One cannot have easement over his own land. If
a person has ownership, obviously the inferior right of easement merges in it.

Landlord & Tenant: since unity of ownership prevents the acquisition of an easement, it
follows that a lessee cannot by user for any length of time acquire an easement in favor of the
land occupied d by him as tenant as against the land belonging to his landlord.
A Full Bench of the Allahabad High Court followed this decision in Udit Singh v. Kashiram30

Tenant of Site Building a House: when the tenant of the site builds a house upon it the
question arises whether he can as against his landlord acquire as easement of light & air or of

28
- Raja venkata rao v. Raja sitaramchandra rao {1940}
29
- Biharilal v. Ashutosh AIR 1925 Cal. 788.

30
ILR 14 All. 185.
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 support for that house. It is submitted with respect that the view of the Bombay High Court in
Ambaram v. Budhalal31 is that the tenant does not become the owner of the house for more
than the leasehold interest. He may have a right to remove the materials of the house & may be
regarded as the owner of the same.

Presumption of Grant: in some cases, the rights of the lessees to easements against the lands
of landlords were recognized, but were rested on the footing of a term in the original contract
of tenancy or of a presumption of grant from immemorial user. 32

Tenants of the Same Landlord: a tenant cannot by prescriptive use acquire an easement
against another tenant of the landlord33 a lessee cannot have an easement in favor of the land
comprised in his lease as against other land of his lessor. Further, the Indian Easement Act
provides that- “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
lease34

Co- Sharers: a co-sharer cannot acquire by use a right of easement against other co-sharers
because no person can have an easement in the land which he himself own. Thus where a
person who has already completed twenty years’ user becomes a co- sharer, he cannot claim
any right of easement. This is because an easement cannot co-exist with ownership

[D]- Easement should be Beneficial to the Dominate Owner:

Beneficial Enjoyment: it is essential to the validity of an easement that it should conduce

to the beneficial enjoyment of the dominant tenement35

Explanation to sec- 4 of the easements act makes it clear that beneficial enjoyment by way
of doing something on the servient tenement includes-

“removal & appropriation by the dominant owner, for the beneficial enjoyment of the
dominant heritage, of any part of the soil of the servient heritage on anything growing or
subsisting thereon.”

31
AIR 1943 Bom. 443.
32
- AIR 1943 Bom. 443.
33
Kilogour v. Gaddes [1904}.
34
sec-12 para 3.
35
Gale on Easements [10th ed.]. 490.
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 Easement is an interest in property. Dominant owner however has no right or title to servient
tenement.

Ornamentation & Prospect: in Nrittakumari Dasi v. Puddomon36 an easement right for the
projection of an ornamental cornice over the servient heritage was negatived by the Calcutta
High Court on the ground that-

“one fundamental principle of the right to an easement is that it confers some benefit on the
person who claims it, & does not serve merely a purpose of ornamentation”.

The decision is applicable in provinces where the Easements act is not in force. Where the
act applies it must be borne in mind that-

“beneficial enjoyment includes also possible convenience, remote advantage & even a mere
amenity”37

An easement for ornamnetation or prospect may well be within the scope of sec-4 of the
easements act. But the better view seems to be that such a right is not an easement & may be
acquired only under a covenant or agreement.

36
ILR 30 Cal-503.
37
G. Satyanarayan v. G. Venkatarao AIR 1963 A.P. 131.

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 5. CONCLUSION & SUGGESTIONS

The obligation imposed on a servient owner is to submit the commission of some act on his
tenement by the dominant owner or to refrain from committing some act himself. The
servient owner is under no obligation to do any positive act himself.
An easement should not deprive the servient owner wholly of his right to use his land & oust
him from his tenement altogether.4 This is because an easement involves a curtailment, without
amounting to a nullification of the servient owner’s rights.

Dominant & Servient Owners should be Different Persons: A right of easement involves an
extension of the rights of ownership of the dominant tenement & a curtailment of the ordinary
rights of the owner of the servient tenement. The two tenement should belong to different
owners for one servient cannot have an easement in respect of one’s own land. An easement is
some right which a person has over land which is not his own but if the land is his own, if he
has an interest in it, then this right is not an easement. One cannot have easement over his own
land. If a person has ownership, obviously the inferior right of easement merges in it.

Landlord & Tenant: since unity of ownership prevents the acquisition of an easement, it follows
that a lessee cannot by user for any length of time acquire an easement in favor of the land
occupied by him as tenant as against the land belonging to his landlord.

The land for the beneficial enjoyment of which the right exists is called the dominant
heritage, & the owner or occupier thereof the dominant owner; the land on which the liability
is imposed is called the servient heritage, & the owner or occupier thereof the servient owner
Explanation: in the first & second clauses of this sec., the expression “land” includes also
things attached to the earth: the expression beneficial enjoyment” includes also possible
convenience, to remote advantage, & even a mere amenity; & the expression “to do
something” includes removal & appropriation by the dominant owner for the beneficial
enjoyment of the dominant heritage. Of any part of the soil of the servient heritage or
anything growing or subsisting thereon.

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BIBLIOGRAPHY

 Introduction to Property Law by Subbarao

 Transfer of Act by Pollock & Mulla

 Wikipedia

 Reports of Law Journals on property law

 Lexis Nexis.com

 Lawsutra.com

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