India: A Glance Over The Easementary Rights


An easement is a right which the owner of a property has to compel the owner of another property to allow something to be done, or to refrain from doing something on the survient element for the benefit of the dominant tenement. For example - right of way, right to light , right to air etc.

An easementary right is almost like a privilege, depriving which the owner of one tenement has a right to enjoy regarding that tenement in or over the tenement of another person, by reason of which the latter is obliged to suffer or abstain from doing something on his own tenement for the advantage of the former. Easementary right must possess the following essentials:

  1. Dominant and survient tenement
  2. Easement should accommodate the dominant tenement
  3. Easementary rights must be possessed for the beneficial enjoyment of the dominant tenement.
  4. Dominant and survient owners must be different persons.
  5. The easementary rights should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, or in respect of , the survient tenement; and
  6. The something must be of a certain or well defined character and be capable of forming the subject matter of a grant



There are two classes of right of way

  1. Public rights of way which exist for the benefit of all people. These are Highway, navigating way. Its origin is in dedication, express or implied.
  2. By way of -Private rights of way which is vested in particular individuals or to owners of particular tenements; and its origin is found ingrant or prescription or to certain classes of persons or certain portions of the public, such as the tenement of a manor, or the inhabitant of the parish or village.

An easementary right of way is created by - Express grant or by immemorial custom, necessity or by prescription, or by statute or through private dedication. The term "general right of way" is applied to private rights of way on which there are no restriction except the necessary qualification, which nature or the law requires regarding all private rights of way. Actual significance of the term general right of way lies in its use in contradistinction to the special limitations expressed or inferred upon the user of any particular right of way over and above the limitations thus imposed by general law.

Apart from statute, the determination of the question who may use a right of way depends upon the nature and extent of the right. If the right is created by grant, the persons or classes or persons entitled to use it may be expressly limited by the terms of the instrument, a grant of this kind being construed, not strictly, but in accordance with the apparent intention of the parties. As a general rule the persons or the classes of persons who may use the right must be ascertained by construing the instrument having regard to the general circumstances surrounding the exception of the grant. The most important of these circumstances are the nature of the place over which the right is granted, and the nature of the dominant tenement, and the purposes for which that tenement is, in the contemplation of the parties, intended to be used.

A person who is enjoining the right of way by more than 20 years without any obstruction by the person in whose land a person pass thru, but one exception for this is; if such person having another way then he cannot claim easementary right by way of prescription1.


It does not matter whether the way was created by express grant or by way of reservation, or is claimed under the doctrine of prescription. The nature of the remedy is the same.

The person claiming for an easementary right of way has the remedy to sue for an injunction - to restrain obstruction of the way or for getting damages. Whether any particular interruption amounts to an unlawful interference or not depends upon the nature of the right of way and of the place, and also on the circumstances of the case. If he suffers no damage by obstruction, nominal damages will be awarded only, and an injunction will be refused. A person who purported exercise of a right of way makes on excessive user of the survient tenement commits a trespass and may be restrained from doing at the instance of the survient owner. The factor for deciding the excessive user depends on the scope of the right, based on the true construction of an express grant or based on the user, established by the prescription as the case may be.


The right to light is basicaly the right to prevent the owner or occupier of an adjoining tenement from building or placing on his own land anything which has the effect of illegally obstructing or obscuring the light of the dominant tenement.

The easementary right to light is a right to be protected against a particular form of nuisance, and an action for the obstruction of light which has in fact been used and enjoyed for twenty years without having any interruption , or written consent cannot be sustained unless the obstruction amounts to an actionable nuisance.

The right of light is an easement and may be acquired.

  1. by way of - either grant or by covenant, which may be express or implied.
  2. as per the provisions of the India Easement Act, and by Presciption under the Prescription Act in England. These acts necessitate an enjoyment without interruption for a period of twenty years to confer the right.
  3. by way of reservation on the sale of the survient tenement. If the vendor of a land desires to reserve any right in the nature of easement and for taking the benefit of his adjacent land which he is not parting with, he must do it by express words in the deed of conveyance, except in the case of easement of necessity.

The interference complained of amounts to a nuisance or not cannot be determined by the fact - whether the diminution is enough materially to lessen the amount of light previously enjoyed, nor it can be determined by the fact that how much light is left, without regard to what there was before, but it can be properly decided by the fact - whether the diminution (i.e. difference between the light before and the light after the obstruction) really makes the building to a sensible degree less fit than it was before, for the purposes of business or occupation as per the ordinary requirements of mankind.

So far as the easementary right to access of air is concerned, it is co-existence with the right to light. In this regard it is pertinent to note that the owner of the house cannot by prescription claim an entitlement of the flow and uninterrupted passage of current of wind, neither the owner of the house is entitled to right of uninterrupted flow of breeze as such, rather he can claim only such amount of air which is sufficient for sanitary purposes. He cannot be allowed to sustain his unjustifiable claim in this regard.


Regarding the cases of easementary right of light the Courts generally do not interfere by way of injunction where the courts find that the obstruction of light is very slight and where the injury sustained is trifling, except in such rare and exceptional cases. Here again it is necessary to understand that no damage is substantial unless it materially diminishes the value of the dominant heritage, or interferes materially with physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.

In India the Court has discretion: It may or may not issue an injunction depending on the fact- where the injury is such that pecuniary compensation would not afford adequate relief.

In some cases a mandatory injunction will also be granted. Court will grant such injunction where a man, who has a right to light and air which is obstructed by his neighbor's building, brings his suit and applies for an injunction as soon as he can after the commencement of the building, or after it has become apparent that the intended building will interfere with his light and air. But the court should be satisfied that a substantial loss of comfort has been caused and not a mere fanciful or visionary loss.

If plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, and has waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be granted.


Unlike a lease, an easement does not give the holder a right of "possession" of the property. Therefore an easementary right is provided for specific relief from specific violations of common basic rights. In the case of the right to way, any wrongful interference with the right of way constitutes a nuisance. However, a right of way never entitles the grantee, or those lawfully using the way under the grant, to the exclusive use of the land over which the way exists nor every obstruction of the way amounts to an unlawful interference, and no action would lie unless there is a substantial interference with the easement granted. In the case of right to access of light, it does not consist of a right to have a continuance of the same amount of light throughout. In case of a diminution, the dominant owner is bound to show that the diminution has interfered with his ordinary occupations of life and it results in a nuisance if it is sufficient to render the occupation of the house uncomfortable, and prevent the owner from carrying his business as beneficially as he formerly did.

In the leading case of Hero vinoth Vs Seshammal (AIR 2006 SC 2234), it is held that – an easement would last only as long as the absolute necessity existed and such a legal extinction could not apply to an acquisition by grant- if a right of way was provided to a particular sharer, it could not be extinguished merely because such sharer had other alternative way.


1 AIR 2004 SC 237

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions