EASEMENT ACT, 1872 (V OF 1882)
Sections—2,4, 15 and 18
Customary right —
Right of way when not available — It has been noticed that the plaintiffs were
recent purchasers and there was no clear evidence that the right of’ way was
exercised peaceably from time immemorial — Easement being a right super-added
to ordinary common law incidents of the ownership of a dominant tenement, which
connotes a corresponding burden on a servant tenement, can only be created by
grant or by statute — Customary rights though unappurtenant to dominant
tenement and no fixed period of enjoyment is necessary to establish it, the
custom must be reasonable and certain— The plaintiffs claimed customary right
and no customary easement right but they failed to prove customary right on
Abdul Matin and ors. Vs. Shuruj Mm being Dead his heirs: Taibunnessa
and others; 9BLD(AD)74
Ref: A.I.R.1965 (Raj) 219; A.1.R.1926(Lah >473; A.I.R. 1927
(Lah) 492 AIR. 1944 (Lah) 417; A.I.R.l962 (Punjab) 299;A.1.R. 1981 (Pat) 133;
A.LR.1938 (Cal) 202; A.I.R 1968 (SC)28l —Cited.
Customary right —
Essential elements of a valid custom — Reasonableness is an essential element
of a valid custom — Considering the changed circumstances the Court may modify,
extend or even disallow a right based on custom that was otherwise resonable at
its inception — A limited user or indulgence will neither make it a custom from
time immemorial nor reasonable.
Moniruddin Sarker being dead his heirs Faziul Huq and others
Vs. Nurul Huq Khan and others; 8BLD(AD)80
Ref: 7DLR464; 34 C.L.J. 319; 42 C.W.N. 1102; LLR 63(Cal)851:
A.I.R. 1937 (Cal) 46: I.L.R.63(Cal)85 I ;1LR42(Cal)455: A .I.R. 1937 (Cal)245;
(.1904)2 Ch. 534; 48 R.R.539; AIR 1931 Mad2 1:31937 (Cal) 245; (1 904)2Ch.534;
48R.R.539; A.I.R. 193 l(Mad)21 3; A.l.R. 1968 (SC) 281; I.L.R. 61 (Cal) 45
A.I.R. 1934 (Cal) 461; (1904)31 l.A. 75; 18 C.W.N. 735: 54 C.W.N. 143(P.C.)
Section — 18(b)
easement—Question of customary right in the changed circumstances—A remand of
the suit to ascertain as to whether the plaintiffs are still entitled to the
customary easement right of privacy is necessary—Easement Act,l882 (V of 1882)
S. 18(b); Code of Civil Procedure (V of 1908) S. 107. Or. 7, r. 7, Or. 39 r. 7
and Or. 41 r. 33.
Abdus Sobhan Vs. Jainiruddin .!aigirder and others; 8BLD(HCD)257
Ref: AIR. 1921 (Sind) 155; A,l.R. 1928 (All) 201; AiR. 1945
(Nag) IS; AIR. 1946(Oudh) 139; A.LR.l977(A11)l 18; AIR. 1974(SC) 1178:
A.I.R.1975 (SC)1409; A.I.R. 1943(SC) 171; A.I.R. 1957 (SC) 875; 28DLR (SC) 103
and 392: 37DLR(AD)63.
Right of easement —
Question of customary right in the changed circumstances – A remand of the suit
to ascertain present facts of the case and if the p1ainiffs are still entitled to
the customary easement right of privacy is necessary — Code of Civil Procedure
(V of 1908), S. 107; Or. 7 Rule7; Or. 39 Rule 7 and Or. 41 Rule 33.
Vs.Jamiruddin Jagirder and others; 8BLD(HD)257
Ref: A.I.R. 1921 (Sind) 155; AJ.R. 1928 (All)20l; A.I.R. 1945
(Nag) 15: A.I.R. 1946(Oudh)139: AIR. l977(All)l 18; A.I.R. 1974(SC)1 178:
A.I.R. 1975(SC)l409; A.I.R. 1943(SC)171: A.I.R. l957(SC)875; 28DLR (SC)103;
Lease and Licence—Distinction
of—. Exclusive possession of land cannot convert a licence into a lease —
Intention of the parties is to be looked into whether the agreement creates
lease or licence—Conduct of the parties is immaterial where there is a written
document creating the relationship between the parties — Transfer of Property
Act. 1882 (IV of 1882) S. 105.
The New Dhamai Tea Estate Ltd. Vs. ArJun Kurmi, 3 BLD(AD)121
Ref: 16 DLR (SC) 169; A.I.R. 1965(SC)610: (1952) 1
All.E.R.l49; (1952)1 All. E.R. II 9: (I 960 I AIIE.R.348; (1965)3All.E.R.77: I
o)57) 3All. ER. 563: (1963) 2 All. ER. 647.
Cancellation of licence
— Whether untier the deeds of licence any property right or legal right in
respect of a property accrues to the licensee — Granting of licence cannot
create an’ interest or any easement — The licensee, however, can claim
compensation if his licence is unreasonably cancelled and that compensation
would include the refund of fees paid to the licensor for the unexpired period
of the licence.
Majibur Rahman and others Vs. The Chairman, BIWTA and others; 6BLD
Sections—59 and 60
Licensee — When a
license is revocable and licensee can be evicted — A two-storied hogla hut
constructed by the licensee acting on the license is a work of permanent
character and the licnesee must have incurred expenses in building the hut —
Such sort of license is not revocable by the grantor of the license — If before
the purchase the transferor had no right to revoke the license then after
purchase the transferee will not get a better right than that of the transferor
— Such license is irrevocable and licensee cannot he evicted.
Manasha Dhaupi and
another Vs. A. K. M. Maniur Morshed and others; 6BLD (HCD)143
—Cancellation of licence in violation of the terms of the agreement to give 30
days notice before termination — Whether such cancellation is legal —
Termination of the licence has not been done in accordance with the terms of
the agreement — Revocation of the licence is wrongful and illegal — No
opportunity was given to the licensee to deny or disprove the allegations
leading to violation of the principles of natural justice A citizen’s property
can be taken over if the law authorises the taking — In addition to strict
compliance ut law opportunity must be given to the owner to legally defend its
right to property.
M/s. 1-lajee Mohamnmad Ali
and sons Vs. Burma Eastern Limited and others; 6BLD (AD)146
License — Revocable
as a general rule — — As a general rule, a license is revocable — Section 60 of
the Easement Act embodies two exceptions to the general rule namely, (I) a
license cannot be revoked by the grantor witha transfer of property, and (2)
when the license has executed a work of a permanent character and incurred
expenses in the execution.
Mrs. Hameeda Banu Vs. A.F.M. Naziruddin; 11BLD (HD) 211 –
Ref. A.1.R. 1940 (Cal) 356: 44 C.W.N. 247; 56 l.A. 259: A.I.R.
1929(PC)163; (1865)l.H.L. 129; (I 886)6W.R.228(F.B); A.J.R. 1921(Nagpur) I
67;A.I.R. I 927(A1l)342: A.I.R. 1967 (Cal) 204; A.I.R. 1975(All)373; AIR.
1930(Born) 34; A.I.R. 1953(Madras) 456; A.1.R.1967 (Cal)204; 26lndian Appeal
58: 3 C.W.N.502; 1.L.R. 33 (Cal) 119: 10 C.W.N. 765;AIR. 1928(Rangoon)141.