• Can servient owner use our approach road where easement rights are granted through sale deed

Mr.Rao is the owner of around 36000 sq yards of land. He has seperated a piece of 3800 sq yards of land in a corner of said land and constructed a house for self and created a 33 feet approach road to High way road as this land is situated in deep corner. Though another way is available to reach highway road, it passes through a colony with very long distance. 
Mr.Rao has founded an educational trust with his family members and started operating a school in his remaining land which is bordering to our approach road also. His remaining land has also access to Highway and also to another 100 feet road.
After 10 years in 2005, Mr.Rao sold his residential piece of land to Mr.Reddy (i.e.3800 s.y. land) through a sale deed which reads as follows:
“The VENDOR hereby sells, conveys, grants and transfers by way of absolute sale the said Schedule Property which is more fully delineated in RED colour in the plan annexed hereto) in favour of the VENDEES absolutely and forever; free from all encumbrances and charges, together with all the rights, privileges, easements, appurtenances thereto whatsoever attached to the Schedule Property which exists or may accrue in future to the VENDOR and all the claims, demands whatsoever at Law and in equity of the VENDOR and to the Schedule Property and every part thereof to have and to hold the same forever by the VENDEES.”
The approach road from Schedule Property to Highway road was also shown in the map which was attached to sale deed 
In 2016 Reddy and a builder, Mr.Sarma entered an agreement for construction of apartments and in 2018 all the buyers occupied their flats. Now Rao is claiming that since the school is in his remaining land, the school has also right to use this road. Even though the school has around 250 feet frontage on the highway and nearly another 250 feet frontage is also facing towards 100 feet road, the school closed their gates on these roads. In spite of having huge access to high way as well as another 100 feet road, the school is using our approach road for 12-15 school buses, as parking place for autos and hundreds of students passing through our road causing lot of inconvenience and creating obstructions for us and our cars. Sometimes we had to wait 20-30 minutes when school calls it a day as our road gets blocked with hundreds of students. Pl clarify the following:
1. Whether the land owner has the rights over the approach road created for our property and sold as an attachment to our land. He has not mentioned about rights of his remaining land on this road in the "2005 sale deed".
2. If the land owner has rights over the road, can he use the road for buses and for their commercial operations. If we both have rights over the road who will maintain the road. 
3. Mr.Reddy and Mr.Sarma have told that we have exclusive rights over this road. We have purchased flats because the land has got approach road to the main road. Can we get exclusive right over the road now?
Asked 11 days ago in Property Law
Religion: Hindu

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14 Answers

1. Any road used by Public and under the jurisdiction & maintenance of Gram Panchayat or Municipal authority, shall be used by all without any exceptions.

2. Any approach road used by "Owners in Lay out Plan" and maintained by such group owners BUT not within jurisdiction & maintenance of Gram Panchayat or Municipal authority, shall be used ONLY by such group owners, without any exceptions.

3. IF there is no private or public approach road to a residential colony, THEN the colony residents are entitled to "approach road of 3 meters width, under the "Easement Act", irrespective of who owns the private /public land.  This can be legally enforced via a order by the local Civil Court, by following due procedures of law.

Hemant Agarwal
Advocate, Mumbai
4654 Answers
23 Consultations

5.0 on 5.0

1. Only under easement law and court order he can have the right when that way is the only way

2. No he can't

3. Only if such approach road is common and non access to it can create difficultly then only easement right can be used

Prashant Nayak
Advocate, Mumbai
19636 Answers
35 Consultations

4.4 on 5.0

Land owner has rights over the approach road 

 

2) both have to maintain the road 

 

3) you cannot get exclusive rights on approach road 

Ajay Sethi
Advocate, Mumbai
75798 Answers
4532 Consultations

5.0 on 5.0

Hi 

1) It appears that Mr. Rao is taking advantage of existence of 33 Feet road for more than 25 years (10 years prior to Mr.Rao Selling to Mr.Reddy in the year 2005, and  15 years computed from year 2005 to as of date) and thereby claiming easement rights of road for his school. 

2) Also it appears that the 2005 sale deed is silent on the easement rights on the 33 feet road (ideally, in the sale deed, Mr.Reddy must have ensured that Mr.Rao and his school forego their easement rights on the 33feet road way back in the year 2005 itself).

3) So, technically, when the sale deed is silent on easement rights on the 33 feet road, the school can claim a right to use the same by virtue of existence of road for more than 25 years.

4) So, the best option would be to approach the Collector and Superintendent of police and ask them to direct the school to open access to school children through the 100 feet road as main passage for daily purposes  and use the 33 feet road only in case of emergencies 

5) If no favourable orders are passed by collector/superintendent of police, you can approach the High Court and file a Writ. 

6) Filing a suit for declaratory title for 33 feet road will not help the flat owners as courts will be reluctant to pass orders on right of easement (more so when school children are involved)  and also will turn counter productive and hence administrative route for resolution will be preferred

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
1890 Answers
345 Consultations

5.0 on 5.0

Even in private land and ownership the concept of easement arises in w common usage of the roads and passway. The grounds mentioned by me are important and will be considered by court during granting or denying the easement rights to the person

Prashant Nayak
Advocate, Mumbai
19636 Answers
35 Consultations

4.4 on 5.0

You are not absolute owner of approach road 

 

2) only land mentioned in schedule to property has been sold to you 

 

3) further you are e titled to easmentary rights to approach road  

Ajay Sethi
Advocate, Mumbai
75798 Answers
4532 Consultations

5.0 on 5.0

1. If the passage was specifically allotted to the buyer and ther is a mention about this pathway in the registered sale deed, you can object to the usage of this pathway by his school especially when he has a different way for road access. 

You can file a mandatory injunction suit to restrain him from using your pathway for his purpose permanently.

2. If both are having rights over the road, then the maintenance will be common and the expenses are to be borne by all the users.

3. The court only can decide when a  declaratory suit filed in this regard to declare the exclusive rights conferred only on you.

This comes under easement rights hence the court will decide on merits.

 

T Kalaiselvan
Advocate, Vellore
65774 Answers
858 Consultations

5.0 on 5.0

1. Since you have mentioned that the vendor has sold land along with approach road to the  buyer (Private road) and also have mentioned him to be  servient owner, he may not be able to claim easement rights,especially if it is found that he has easement facilities on the other side through his own landed property, you can fight it out properly on merits and with the help of supporting documents through a couirt of law.

2. The clause what you have extracted and furnished from the sale deed is very clear that the vendor sold and conveyed the schedule  property together with all rights, privileges, easements, appurtenances thereto whatsoever attached to the schedule property at law and in equity of the vendor and to the schedule property and every part thereof to have and hold together forever by the vendees.

The said clause is very clear to show your absolute title to the pathway sol;d along with the property by the vendor, therefore you can object and stop the vendor from using the pathway  by an order of injunction from court.

 

 

 

 

 

 

 

 

 

 

T Kalaiselvan
Advocate, Vellore
65774 Answers
858 Consultations

5.0 on 5.0

Hi 

Our answers are based on various case laws of Supreme Court  (Bachhaj Nahar vs. Nilima Mandal and Anr. MANU/SC/8199/2008, and   Justiniano Antao and Ors. Vs.Respondent: Bernadette B. Pereira

 

1) Your Question:  Whether the land owner has the rights over the approach road created for our property and sold as an attachment to our land.

Our Response:

 

a) Yes, Mr. Rao has rights over the approach road as he in his capacity as Trustee of the school  has not specifically abandoned his rights to the use the approach road

and 

b) Mr. Reddy has not stopped  the school  from using the said approach Road admeasuring 33 feet from 2005 to 2016 and , 

Nor has Mr.Sarma has stopped  the school  from using the said approach Road from 2016-2018 and topped  the school  from using the said approach Road  AND

Nor has the flat buyers Stopped  the school  from using the said approach Road from the year 2018-2020

So, the school derives the right to use the approach road by virtue of them using the road from the year 2005.

 

 2. Your Question:  If the land owner has rights over the road, can he use the road for buses and for their commercial operations. If we both have rights over the road who will maintain the road.

Our Response:

The School in which Mr.Rao is a trustee has right of easement and the road has to be maintained jointly by flat owners and school

or

The government should take over maintanence. 

 

3. Your Question: Mr.Reddy and Mr.Sarma have told that we have exclusive rights over this road. We have purchased flats because the land has got approach road to the main road. Can we get exclusive right over the road now?

Our Response:

Answer: Your lawyer should be able to convince the government. courts that school students (school students are public by any definition) will have better safety if they enter/exit the school premises vide  100 feet road rather  than entry/exit points vide 33 feet road.

 

4) Additional Responses :  Parking of school buses/vans in 33 feet road is any way illegal and you should complain to the police and collector on this aspect. 

 

5) Additional Responses :   Since the 2005 sale deed is absolutely silent on transfer of right of use of road by school, it cannot be said that right of use of 33 feet road has been extinguished by the School for which Mr.Rao is a Trustee.

 

6) Additional Responses : 

a) In law, both Mr.Rao as an individual and  Mr. Rao as trustee  of the Educational Trust are two different persons.

 

b) So, the sale deed executed by Mr.Rao will be construed as an agreement executed by him as an individual and not as a trustee.

 

Hope this information is useful.

 

 

Rajgopalan Sripathi
Advocate, Hyderabad
1890 Answers
345 Consultations

5.0 on 5.0

Easement right is based on necessity. 

In your case use of your  access road to highway is not necessary for beneficial enjoyment of the land where school is operating. 

So the school owner does not acquire any easement right to your access road. 

Kallol Majumdar
Advocate, Kolkata
2683 Answers
4 Consultations

5.0 on 5.0

1. Yes land owner can use the road mentioned in your sales deed as it still belongs to that owner and never sold to you for personal use of land sold by him.

2. Yes he can use the road for buses but you can make complaint to him for blockage of road during peak hours and also claim maintenance amount from him. 

3. For getting exclusive rights over the road you have to file suit against land owner. 

Mohit Kapoor
Advocate, Rohtak
8662 Answers
3 Consultations

5.0 on 5.0

 - In legal terms, a private road is a road not open to the general public without permission,

- The owner can grant individuals the right to use his road and further the owner of a private road , who wants to keep it private must post notices such as “no trespassing” or “private road” signs or paint marks to warn passersby.

- If, the person , who ignored the posted signs and use private roads without permission of the owner , are considered as trespasser, and which is offence under the IPC. 

1. When the road sold as an attachment of the land , then the question of right of the landowner ceased accordingly. and hence this road would come under the category of private land /road , and your permission is mandatory for using the same. 

2. No, as the said road is a privately owned by you , hence it cannot be used for running buses and commercial operations , and if the land owner doing this , then he should born the maintenance of the road . 

3. No , they dont have exclusive right over the land/private road owned by others , 

- If you purchase a land without having a road facility , then for reaching the main road , you will have to leave some portion of your land for the same , and you cannot encroach the land for others for availing such facilities. 

- Such flat owners should pay compensation for using the private property of others , otherwise you can lodge a complaint against them , and further can file a suit for Mandatory injunction against them to stop them from using the same without monetary contribution .

Mohammed Shahzad
Advocate, Delhi
3303 Answers
39 Consultations

5.0 on 5.0

A private road like that is not a public right of way other than for the purposes of visiting a property on it unless signed so Mr Rao do not have the right to access it. . 

If a private road is used by others uninterrupted for 20yrs the road become public road.Unless there is boundary wall on two sides of the road neighbours can access the road.

Mohammed Mujeeb
Advocate, Hyderabad
16464 Answers
11 Consultations

4.5 on 5.0

1. In my view the owner Rao is legally wrong to contend that he has right over the approach road which connects your property to the highway

2. Rao will be bound by the 2005 sale deed which specifically states - 

“The VENDOR hereby sells, conveys, grants and transfers by way of absolute sale the said Schedule Property which is more fully delineated in RED colour in the plan annexed hereto) in favour of the VENDEES absolutely and forever; free from all encumbrances and charges, together with all the rights, privileges, easements, appurtenances thereto whatsoever attached to the Schedule Property which exists or may accrue in future to the VENDOR
3. This essentially means that Rao subdivided the bigger land such that there were 2 sub-land parcels created - one piece comprises of that portion of land on which he constructed his house with an approach road and another piece comprises of land on which he built the school with its approach roads connecting them to the highway
4. so Rao himself created the 2 pieces of land and sold one such piece of land WITH easementary rights attached to such land [i.e. the approach road] ABSOLUTELY to the vendee under the 2005 sale deed
5. in order to identify the land with its easements described in the sale deed, a plan was also attached to the sale deed showing the land delineated in red colour
6. after having executed such a sale deed, Rao cannot turn around and say that despite the said sale he continued to have rights over the approach road which abuts the land sold by him
7. that in my view would constitute a criminal trespass by Rao
8. ideally the land which was sold under the 2005 sale deed ought to have been formally sub-divided by the revenue authorities so that there is no dispute in future between the original owner [Rao] and the purchaser of a portion of the said land [Reddy and after him the builder and then the society in whose favour the land is finally required to be conveyed by the builder after completion of construction]
9. since Rao has staked claim over the approach road and is using the same for the school buses, etc. you will have to now file a civil suit against Rao to restrain Rao and his school from using or entering upon your portion of the approach road

Yusuf Rampurawala
Advocate, Mumbai
5197 Answers
32 Consultations

5.0 on 5.0

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