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Vaniyankandi Thazha Kuniparambil Parkum Ponmani Chintagath Koyyomma and ors. Vs. Thayithottathi Kuttiammoo and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in50Ind.Cas.291; (1919)37MLJ28
AppellantVaniyankandi Thazha Kuniparambil Parkum Ponmani Chintagath Koyyomma and ors.
RespondentThayithottathi Kuttiammoo and ors.
Cases Referred and Fahey v. Dwyer
Excerpt:
.....from the broad view which underlies the judgment has never been disapproved. (1) whether an easement right can be acquired by prescription against a tenant for the term of his tenancy, and (2) whether by virtue of section 16 of the easements act the owner of the land is prevented from disputing the easement claimed, because he did not resist the easement within 3 years of the determination of the tenancy from 1887 to 1899. 8. so far as the second question is concerned, it appears that the plaintiffs enjoyed this easement right from 1877 until the date of suit in 1913, which is a great deal longer than the statutory period of 20 years prescribed for the acquisition of an easement by prescription. it is not however proved that there was any grant to the tavazhi, and i think it must..........any easement has been enjoyed...has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.' these sections imply that by reason of a prescriptive easement the rights of the owner of the servient tenement are modified or restricted to that extent and not merely those of the lessee for the term of his lease. no doubt an easement may be permanent or for a limited period as stated.....
Judgment:

Abdur Rahim, J.

1. The plaintiffs in this suit claimed an easement of light and air acquired by prescription over the premises in occupation of the defendants. The dominant tenement is a warehouse and the lower appellate court has found that with respect to the windows 11 to 16 in the plan, Exhibit B, the plaintiffs who are in the occupation of the warehouse had been in unobstructed enjoyment of light and air since the year 1877 until the defendants threatened to obstruct the access of such light and air by building a two storeyed warehouse on their land shortly before the institution of this suit in 1913. From 1877 to 1887 the land was in the possession of a tavazhi to whom the Orkatteri tarwad had made a grant of it for maintenance. In 1887 the defendants obtained the land from the tavazhi on a kanom of 12 years. On its expiry in 1899 they continued in' possession without any lease until 1905 when they obtained a fresh kanom for another term of 12 years. Neither the tavazhi, the lessor of the defendants, nor the superior proprietor, the tarwad, has taken any steps to resist the plaintiffs' claim and the question is whether the defendants' possession since 1887 as tenants of the servient heritage is a bar to the maturing of the plaintiffs' prescriptive rights.

2. On the question whether a prescriptive right to access of light and air can be acquired in the nature of an easement for a limited period, for instance, during the time the servient tenement is in the occupation of a lessee for years, I am of opinion that it cannot, Section 15 of the Easements Act, V of 1882, lays down that 'where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for 20 years...the right to such access and use of light or air...shall be absolute,' and Section 16 says 'provided that, when any land upon, over or from which any easement has been enjoyed...has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.' These sections imply that by reason of a prescriptive easement the rights of the owner of the servient tenement are modified or restricted to that extent and not merely those of the lessee for the term of his lease. No doubt an easement may be permanent or for a limited period as stated in 5. 6. But the question is whether an easement for a limited period can be acquired by prescription. In Chapter II the imposition, acquisition and transfer of an easement are dealt with. Wherever an easement is spoken of as 'imposed' the phrase is used to mean the creation of an easement by a voluntary act of the owner or lessee or of any other person having power to transfer an interest in the servient tenements. This will be apparent from Sections 8, 9, 10,11, 20, 28, 37, 40 and the illustrations appended thereto, especially those to Section 9. They show that the imposition of an easement as contemplated is to be by such an act as a grant or a bequest of the owner or occupier of the servient heritage. That a lessee can create or impose an easement by a grant for the period of his term cannot be doubted. (See Section 11.) In contradiction to such 'imposition' of an easement by the owner or lessee of the servient tenement the legislature speaks of acquisition of an easement by the owner of the dominant heritage by prescription or custom, in Sections 15, 16,17, 18 and elsewhere. There are no express words in the Act providing for the acquisition of an easement for a limited time by prescription by the owner or occupier of the dominant heritage though the Act in various places deals with the imposition of an easement by the owner or lessee of the servient tenement. And in ray opinion without the intention of the legislature being in this connection expressed in so many words or capable of being inferred from any plain indications in the Act we should not be justified in recognising a prescriptive right to light and air by way of easement for a limited period, such as during the occupation of the servient heritage by a lessee, when it is clear that no such right has ever been recognised by the English law.

3. The English law on the subject is clearly stated in Wheaton v. Maple & Co. (1893) 3 Ch. 48 by Lindley, L.J. in the Court of Appeal. 'The whole theory of prescription at Common Law is against presuming any grant or covenant not to interrupt, by or with any one except an owner in fee. A right claimed by prescription must be claimed as appendant or appurtenant to land, and not as annexed to it for a term of years' (page 63), and further on after quoting the words of the English Prescription Act, 2 and 3 Will IV, c. 71 'the expression 'absolute and indefeasible' as applied to easement of all kinds...shows that the easements dealt with were easements appendant or appurtenant to land, and which, when acquired, imposed a burden for ever on the servient tenement. This view of the statute was clearly expressed soon after it was passed in Bright v. Walker (1884) 40 R.R. 586 and although some passages in Baron Parke's judgment in that case have been criticised, and even dissented from the broad view which underlies the judgment has never been disapproved. That view, as I understand it, is that the Act has not created a class of easements which could not be gained by prescription at Common Law, or in other words, has not created an easement for a limited time only, or available only against particular owners or occupiers of the servient tenement. Such easements can only be created since the. Act as before the Act--viz., by grant or by an agreement enforceable in equity, which for most purposes, is as efficacious as a deed under seal. Such a grant or agreement must, moreover, be proved as a fact and not be purely fictitious.' It will appear from Gale on Easements, 9th Edn. (pages 210, 211 &c.;,) that this exposition of the law has been accepted without question or doubt in England. If the Indian legislature, which must be presumed to have been familiar with the English law on the subject, intended to alter it on this point it would have plainly expressed or indicated such intention.

4. But the plaintiffs have in my opinion nevertheless acquired an absolute title to light and air by prescription as claimed by them by reason of the fact that their claim was not resisted by the owner of the premises within three years of the termination of the period of the defendants' lease in 1899. The clear effect of Section 16 is that the time during which the servient premises have been in occupation for any term of years is to be deducted in computing the period of enjoyment of the easement claimed only if that claim is resisted within 3 years next after the termination of the term by the owner of the land. The owner did not resist the plaintiffs' claim for 3 years and more after 1899 and it follows that the plaintiffs' right acquired by enjoyment for 20 years became absolute within the meaning of Section 15 of the Easements Act. The fact that the defendants continued in possession as tenants by holding over after the expiry of the lease for years cannot make any difference.

5. It was also argued on behalf of the appellant that the tavazhi whose tenants the defendants were, held the servient premises for life within the meaning of Section 16. I have no doubt that the grant for maintenance of the tavazhi can never be called an interest for life as contemplated by the Act unless it can be shown that it was intended for certain definite lives. We have no document to show what the terms of the grant were, supposing there was a grant, and as the Subordinate Judge finds, the arrangement, such as it was, was capable of being revoked at any time by the tarwad to whom the property belonged. The appeal therefore fails on all the points argued before us and must be dismissed with costs.

Phillips, J.

6. This suit is brought by the plaintiffs for an injunction restraining the defendants from obstructing the access of light and air to the plaintiffs' warehouse. The warehouse was built in 1877 and the land now in the possession of the defendants was in the possession of its owner from 1877 to 1887. In 1887 the land was demised on kanam for 12 years and was held over until 1905 when there was a fresh renewal for 12 years. The defendants' land belongs to the Orkatteri tarwad and was allotted to a tavazhi for maintenance. The kanam demises were granted by the tavazhi.

7. Two questions arise for consideration in this appeal; (1) whether an easement right can be acquired by prescription against a tenant for the term of his tenancy, and (2) whether by virtue of Section 16 of the Easements Act the owner of the land is prevented from disputing the easement claimed, because he did not resist the easement within 3 years of the determination of the tenancy from 1887 to 1899.

8. So far as the second question is concerned, it appears that the plaintiffs enjoyed this easement right from 1877 until the date of suit in 1913, which is a great deal longer than the statutory period of 20 years prescribed for the acquisition of an easement by prescription. For part of this period, namely from 1887 to 1899, the land was in the possession of the defendants and their predecessors as tenants under the kanam granted to them for 12 years. This kanam expired in 1899 and it would therefore appear that unless the owner intervened within 3 years from 1899 the easement would become absolute.

9. It is contended for the defendants that the term had not been determined by the landlord and therefore Section 16 would not apply. Section 16 is however clear. It says, ' When any land has been held for any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such term, resisted by the person entitled, on such determination, to the said land. ' The contention is that the determination of such term means the determination of the tenant's right, and it is argued that inasmuch as the tenants were allowed to hold over for 6 years and were then confirmed in their right by a renewal deed, there has been no determination of their right. The language of the section is however clear. In the words ' determination of such term,' ' such term' means ' any term of years exceeding three years from the granting thereof.' In this case a term of 12 years was granted and when that term expired it must be held to be a determination of such terra. The landlord did not take advantage of his right to intervene within 3 years of that date and therefore the period of tenancy, is not excluded in the computation of the period of 20 years.

10. A further argument is put forward, namely, that the kanam was not granted by the owner but by the tavazhi, which itself had only a life-interest in the land. No evidence has been adduced as to the exact terms on which the tavazhi was in possession of the land but the kanam-deed, Exhibit III, merely recites that the land has been set apart towards the expenses of the Orkatteri house. Even if there had been a grant to the tavazhi it would not be a grant of a life-interest, for there is no one life during which such interest could subsist and the interest would continue so long as the tavazhi existed. It is not however proved that there was any grant to the tavazhi, and I think it must be held that the tavazhi was allowed to enjoy this land under the tarwad and that its possession was nothing more than the possession of the tarwad. In that view, the landlord was really the tarwad acting through its agent the karnavan of the tavazhi, and Section 16 would be applicable. In this case I think that the plaintiffs have made their right absolute by more than 20 years enjoyment and are entitled to a decree.

11. The first question is one of greater difficulty, the contention for the appellants being that no easement right can be acquired by prescription against a tenant and this appears to be the principle recognized by the Common Law of England vide Wheaton v. Maple & Co. (1893) 3 Ch. 48 and Kilgour v. Gaddes (1904) 1 K.B. 457. In an earlier case apparently a contrary view was suggested (Daniel v. Anderson (1862) 31 L.J. Chancery 610 and in two Irish cases this contrary view was adopted. Beggan v. M'Donald (1878) L.R. 2 Ir. 560 and Fahey v. Dwyer (1874) L.R. 4 Ir. 271. The question is whether the Common Law principle has been embodied in the Indian statute, the Easements Act. It is not disputed that a tenant could grant an easement for the period of his tenancy even under English Law. But the possibility of its acquisition by prescription is not recognized on the theory that there can be no presumed grant except from the owner. In the Easements Act, we find in Section 6 that an easement may be for a term of years or for other limited period. In Section 4 it is defined as a right which the owner or occupier of certain land possesses as such. Again in Section 8 'an easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.' Again in Section 11, ' No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor. '' I do not think the word ' impose ' in these sections must necessarily mean, impose by some act, such as a grant but it will include ' impose by omission to take steps to prevent acquisition by prescription.' Similarly in Explanation I to Section 15. 'Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfillment of which it is to cease. ' Section 37 says ' when, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished. ' All these provisions seem to imply the possibility of an easement being acquired against a lessee or other person having a derivative interest in the property, and the only section which throws some doubt is Section 7 which says, 'easements are restrictions of one or other of the following rights (namely):

(a) The exclusive right of every owner of immoveable property to enjoy and dispose of the same (b) The right of every owner of immoveable property to enjoy without disturbance by another the natural advantages arising from its situation. ' This section seems to imply that easements can only be acquired against an owner of property. It does not say that the owner must be the absolute owner, and the following section (Section 8) is inconsistent with such interpretation of the word, for it says that an easement can be imposed to the ested to which any one may transfer his interest in the heritage, which obviously contemplates the existence of a lesser interest than absolute ownership. I think therefore that the word 'owner' in Section 7 cannot be interpreted as meaning necessarily absolute owner. The whole scheme of the Act seems to imply that easements can be acquired even against limited owners. The Act undoubtedly goes further than the English Law on the subject of prescription, for Section 8 of the English Act (2 and 3 William IV, c. 71 which corresponds to Section 16 of the Easements Act is restricted to rights of way and water, whereas Section 16 of the Indian Act is applicable to all kinds of easements. This is one instance wherein English Law has not directly applied in India, and there being this one instance, it is not so difficult to hold that in other respects also the legislature did not wish to adopt all the provisions of the English Common Law. If that be so, there is no serious objection to reading the sections I have enumerated above in a natural meaning, and understanding them as referring to the acquisition of easements against owners who are not absolute. If that is so, the easement has at any rate been acquired by the plaintiffs against the defendants and for the purpose of this suit to which the owners of the land were not parties the plaintiffs would be entitled to an injunction.

12. I agree therefore that the appeal must be dismissed with costs.


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