Section 25 of the Limitation Act, 1963 proves that:
(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 water course 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
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(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.
Nothing is an interruption within 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 is submitted to or acquiesced in for one year after claimant has notice thereof and of the person making or authorising the same to be made.
Section 25 of the Limitation Act 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.
The claim of public right over a public land is not a claim of easement governed by the Section 25 of the Limitation Act. Section 25 does not apply to natural rights. In R. Pandey v. S. Pandey, (AIR 1963 Pat. 76), it has been held that the right to drain off rain water according to the lie of the land in a natural way does not attract the Section 25. In Manindra v. Balaram, (AIR 1973 Cal. 145), it has been held that customary right of way for all the villagers is not a right which can be acquired by prescription under Section 25.
The Limitation Act places light and air on the same footing. The only amount of light for a dwelling house which can be claimed by prescription or by length of enjoyment without an actual grant is such an amount as is reasonably necessary for the convenient and comfortable habitation of the house. The owner does not obtain by his easement a right to all the light he has enjoyed. He obtains a right to so much of it as will suffice for the ordinary purposes of inhabitating or business according to the ordinary notions of mankind, having regard to the locality and surroundings. In
Jotindra v. Probodh Kumar Dutta, (AIR 1932 Cal. 249), it has been held that if for 20 years light arid air has come to the plaintiffs building in a defined channel by the same access, the conditions of the section are fulfilled.
In Nagendra v. Priya, (43 CWN 636), it has been held that a lessee of land, who owns a building thereon, can acquire by prescription a right to light and air against another lessee under the same landlord in respect of the adjacent plot.
In Mathu Goundan v. Anantha, (29 MLJ 685), it has been held that the word ‘peaceably’ means that the plaintiff who claims to be the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 20 years, nor has he been prevented by the use of physical force by the defendant in his enjoyment of such right. Mere protest on the part of the servient owner orally or oral expression of opposition cannot prevent the enjoyment being peaceful. In Ram Sarup v. Abdul Haq, (AIR 1931 Lah. 395), it has been held that mere denial by the defendant of the plaintiffs right and an unsuccessful attempt to have it negatived in Courts of law does not prevent the plaintiff acquiring the right.
The word ‘openly’ means that the enjoyment has, from the very beginning, been visible and manifest, not furtive or secret. It must at least be shown that the servient owner might be expected to have known of the assertion of the right of easement on the part of the dominant owner. In Anandi Hati v. Dharamu Behera, (AIR 1974 Ori. 213), it has been held that where it is found that the plaintiffs latrine has been cleansed by the municipal sweeper through passage on the land of the defendant from time immemorial peaceably and without interruption, it must be held that the plaintiff has acquired a right of way by prescription.
In Chunilal v. Mangal Das, [(16 Bom. 592], it is held that 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 another.
The term ‘as of right’ signifies enjoyment by a person in the assertion of a right. The words ‘as of right connote that the person claiming the right must have exercised it as if he had been the true owner without permission or licence from anyone. In Bankaylal v. Krishnan Lai, (AIR 1967 All. 43), it has been held that a right of way may be acquired if it is exercised openly and with the knowledge of the servient tenement for a period of 12 years. Enjoyment of a right by a person really means that there must be an exercise of that right by that person.
In Gangaram v. Tribeni Rai, (AIR 1973 All. 462), it has been held that if the enjoyment has not been made secretly or stealthily or by tacit sufficiency or by leave or favour or licence, but has been made openly or notoriously it would be an enjoyment as of right. The words “as of right” denote that it is not enough that the right is merely exercised but that it should be exercised consciously as assertion of the right claimed. The phrase ‘as of right’ does not imply a right obtained by grant from the owner of the servient tenement.
The term ‘interruption’ in Section 25 is altogether inapplicable to any voluntary discontinuance of the user by the claimant himself. An interruption to be effective must result in actual discontinuance of the enjoyment of the right of the claimant. In Raghunath v. Madan Mohan, [(1973) 39 Cut.LT 1179], it has been held that there can be interruption only if in execution the decree-holder takes possession of the property thereby physically preventing the other party from continuing in enjoyment of the right. Mere protests do not amount to interruption. A right of easement is not interrupted by mere verbal quarrels or contentions.
A right to easement is not indefeasibly established by an enjoyment for less than 20 years. A title to easement is not complete merely upon the effluxion of 20 years and however long the period of enjoyment may be, no indefeasible right can be acquired until the right is brought in question in some suit, and until so brought, the right is inchoate only; and in order to establish it when brought into question, the enjoyment relied on must be an enjoyment for 20 years upto within two years of the institution of the suit.
In A. Sundar v. S.N. Jaiswal, (AIR 1988 Pat. 216), it has been held that in a suit for removal of obstruction of the easement right, the limitation is two years from the date of obstruction otherwise the suit will be barred by limitation. A claim for prescriptive right would be defeated if the period of user had terminated more than two years before the filing of the suit. The period of 20 years or more of enjoyment must end within two years before the institution of the suit otherwise the claimant cannot succeed.
Sub-section (3) of Section 25 of the Limitation Act contains an express provision for the acquisition of easement against the Government by 30 years enjoyment. 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. Land belonging to a jagirdar cannot be a land belonging to the Government. The word ‘belongs’ has reference to ownership and not possession. If the Government is owner of the land on the date the claim of easement is made sub-section (3) of Section 25 of the Limitation Act will apply, 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 Section 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.
The rule of 20 years ‘user laid down in sub-section (1) or 30 years ‘user laid down in sub-section (2) or the period of two years’ limitation prescribed in Section 25 will not apply to easements acquired otherwise than under the provisions of Section 25, such as grant, express or implied, custom etc. Section 25 does not exclude other modes of acquiring easements as for instance, by grant, express or implied. In Bhabadev v. Bhusan Chandra, (AIR 1926 Cal. 507), it has been held that it is not necessary to seek the aid of Section 25 for the acquisition of a right to the use of the water from a dedicated tanks to the public use.
The following are some of the rights of easement as per the judgments.
(1) A right of fishing in another’s water falls within the description of an easement under Section 25. (Lokenath v. Jahnia Bibi, 14 CLJ 572).
(2) The right to maintain a ferry over the property of another is a right of easement which can only be acquired by user for 20 years. (Parmeshari v. Mahomed, 6 Cal. 608).
(3) 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 v. Amratlal, 3 Bom. 174).
(4) A tenant may have a right of pasturage on his landlord’s waste lands by immemorial user. [Bholanath v. Midnapur Zemindary Co., 31 Cal. 503 (PC)].
(5) A right to discharge rain-water flowing from the roof of the plaintiffs house upon the roof of the defendant’s house can be acquired by prescription. (Mohanlal v. Amratlal, 3 Bom. 174).
(6) An easement of the supply of water from a natural stream may be acquired by 20 years’ user under Section 25. (Abdul Rahman v. Muhammad Alam, 57 PR 1918).