• Easement right

We have been using a private road of width around four meter for more than ten years a part of which is owned by another person.this is the only pathway to our house.also this road is used by other two families also.now he has obstructed the road by leaving only one meter pathway.is there any right for us to use the road for vehicle transportation
Asked 7 years ago in Property Law
Religion: Hindu

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6 Answers

If you are using this pathway more than 20 years then you can claim Easement by prescription. To claim relief on the strength of easement by way of prescription, it must be shown that the person claiming it has been using a defined pathway for the statutory period of 20 years as of right, peaceably, continuously, openly and without obstruction. When a plea of right of easement by way of prescription is raised, it is not necessary to go into the question of alternative ways.

In your case this is the only one pathway which you can use. So you can file a suit for declaring your right to use the pathway as easement by way of necessity. Easement by necessity arises on the severance of tenement and its origin cannot be postponed to a later date. An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. A man cannot acquire a right of way as an easement of necessity, if he has got other means of access to his land, however, more inconvenient it may be than by passing over the land of neighbours.

But the court can provide only a way for your ingress and egress and not in a way having width of vehicular access. If you need to get the way having a width of 4 meters then you have to establish you had used the way at 4 meter width from the beginning.

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Ajay N S
Advocate, Ernakulam
4080 Answers
111 Consultations

5.0 on 5.0

you cannot claim your right because it is private property of other person and he has right to prevent its use in any manner. if you have using this road for more than 20 years then easementary right will accrued and you can enforce it through the court.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Dear Concerned,

Yes - blocking public way is illegal and you may choose to do the following

a. File a compliant (joint with other families using the road if possible) to the concerned SDM about the act.

b. File a Mandamus Writ in the High Court for instructions to the SDM or the concerned Tehsildar for removing the mentioned obstructions.

Best of Luck

Atulay Nehra
Advocate, Noida
1309 Answers
58 Consultations

5.0 on 5.0

1) you can claim easmentary right of necessity as there is no other access to your house

2) Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours.

3) you can under section 35 of easement act obtain permanent injunction restraining your neighbour from obstructing your right of passage

Ajay Sethi
Advocate, Mumbai
95208 Answers
7609 Consultations

5.0 on 5.0

1. A common pathway or passage can never be obstructed by the common users.

2. If the same is done the other users can seek legal remedy to to remove the hindrance.

3. So file a suit declaration and injunction to remove the obstructions. It would be easily granted by court if you prima facie establish the long user in common with others.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

You first go through the sale or title deed thoroughly and confirm the provision for Ingres and egress and access to road side from your property. If there is no mention about it then you may have to prove court your possession and continuous use of this common passage.

You can get relief by filing a suit for easement rights.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

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