EASEMENT RIGHT DEFINITION AND EXAMPLE

Easement Act
[V of 1882]

Section 4–

Definition  of easement– An easement is always appurtenant to the dominant tenement– There can be no easement without dominant tenement.

The definition of easement given in section 4 clarifies that an easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Section 18 deals with customary easement and it says that casement may be acquired by virtue of local custom. But it is completely different from customary right because customary right is not an easement.

Abdul Matin
vs Taibunnessa 41 DLR (AD) 88.

 

Section 4–

In a suit for prescriptive right of way, the plaintiff must show that such user of the pathway was continuous, quiet, uninterrupted and to the notice of the servient owner and the same is not dependent upon the permission of the
servient owner at all. Abdul Latif vs Attar Ali 42 DLR 115.

Easement right–

Presumption of–It is apparent that the mentioning in the kabala of the existence of the disputed pathway some time over 50 years’ back is a strong presumption that the user of the right is nothing but as of right, that is to say it has a lawful origin and therefore it cannot be brushed aside by saying that walking over other’s land even for hundred years does not create any easement right.

Abdul Latif vs Attar Ali 42 DLR 115.

Section 13–

Right of easement invades upon the right of the servient owner and, therefore, all easement should be specifically pleaded so that the servant owner can meet the claim.

Mohsin Ali Chowdhury vs Muzammel Khan 42 DLR 167.

Section 15–

Easement Act, 1882 deals with customary easement, Easement Act does not deal with customary right. It refers to customary rights no doubt, but that is for the purpose of making it abundantly clear that while the Act governs the former it has no concern with the latter.

What the plaintiffs claimed was customary right and not customary easement.

Hence the Courts below while approaching the case made an erroneous decision by taking in view the principles of Easement Act. The submission is devoid of any substance because it makes a distinction without any difference.

Abdul Matin vs Taibunnessa 41 DLR (AD) 88.

Section 15–

Right of easement– Acquisi­tion of–Prescription–Important ingredient for finding easement by prescription is whether enjoyment by prescription is in assertion of right.

Mohsin Ali Chowdhury vs Mazammel Khan 42 DLR 167. 

Section 15–

Section 15 is not exhaustive and does not preclude other titles or modes of acquisition such as by grant, express or implied. The act is thus remedial in nature and is neither prohibitory nor exhaustive.

Abdul Latif vs Attar Ali 42 DLR 115.

Section 15–

Easement of necessity is a question of fact to be gathered from the facts and circumstances of each case. Easement of necessity means an easment absolutely necessary for the use of the dominant tenements.

Abdul Latif vs Attar Ali 42 DLR 115.

Sections 15 & 18–

Customary easement and prescriptory easement–Customary easement is different from prescriptive easement. In order to establish the right of customary easement it is not necessary to show that it has been enjoyed from time immemorial or for over 20 years. A customary easement is in favour of a class or community and cannot be in favour of an individual whereas in the case of the prescriptive easement it is essential that it was for a period of 20 years or more.

Abdul Aziz vs MojahidAli 44 DLR 511.

Section 18–

Customary right of easement– ­Illustration to section 18 of the Easement Act– ­Appellant’s contention against the Subordinate Judge’s findings.

Abdus Sobhan vs Jamiruddin Jaigirdar 40 DLR 488.

Section 41–

Easement of necessity is extinguished when the necessity comes to an end.

Mohsin Ali Chowdhury vs Muzammel Khan 42 DLR 167.

Section 44–

The alleged easement right of the contesting defendant in the suit property totally extinguished by subsequent developments by a total change of the nature and character of the property.

Osi Meah Sowdager vs Tulsidham Akherar Madam Mahan Narasingha and others 54 DLR 409.

Section 52–

Licensee’s right to transfer– No particular meaning of licence having been given in the lease deed it will have the meaning given in the Easements Act and accordingly a licensee has no right to transfer the property in question.

Bangladesh vs Ibrahim Bepari 42 DLR (AD) 184.

Sections 52 & 60–

Licence for permanent construction–Whether grantor of the licence can derogate from the grant–In the present case the respondent spent money on the construction of the building knowing that the land belongs to the appellant. The question is whether he can claim title in the building. The claim must have. for its basis his ownership in the building. Had he constructed the building in the bonafide belief that he was the owner of the land, he could have at most claimed compensation or asserted his right to remove the structures. In view of the finding that Ext. I, a letter of authority to raise loan and no licence to construct a building, the respondent is not entitled to get any relief and his suit is liable to be dismissed.

Hameeda Banu vs AFM Naziruddin 43 DLR 623.

 

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