• Right of way/easement

I have bought Agricultural land in Karnataka in 2013 which is next to a gram panchayat road. The owner of the land next to mine who also purchased his land around 2013 is now demanding a 30 feet road access to his land through my land which is about 400 feet from the road. Now, my question is - What are his rights according to Indian Law? Can he demand 30 feet road access?
Asked 5 years ago in Property Law
Religion: Hindu

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17 Answers

No he can't demand exact area for easement rights bit he can demand easement right or access. 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

His claim is unreasonable. However it is true that he has the right of way.

It is not necessarily be registered.

Regards

Swarupananda Neogi
Advocate, Kolkata
2993 Answers
6 Consultations

Right of Easement is not question of Agreement but it devolves from Statute called Indian Easement Act.

Person should enjoy right of way for long time to prove his claim before the Court and get the decision by way of decree for access through the land or path.

Please approach Civil Court against your opponents for right of way in case of disputes. 

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

He can claim easmentary right of necessity if there is no other access to his land 

 

2) if you  refuses to give access current owner has to move court under section 15of easment act and claim easmentary right of necessity

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

Right way of way can be granted in writing 

not necessary to register it 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. Under the provisions of the Easement Act, affected adjoining land owners who do not have way of access to their plot of lands, have a right for 3 meter wide access road (maximum 10 feet). Demanding a 30 feet wide access road is highly illegal & intimidation and even the Courts do not grant a 30 feet wide access road. This is irrespective of the total running length of the access road.

2. Deed of Agreement, for said access road, MUST compulsorily be signed by all affected parties, specifying duration and condition of usage & any monetary consideration etc.... AND MUST BE STAMP DUTY PAID AND COMPULSORILY REGISTERED.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

Right of way is valid but he need to pay you the government rates for it

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

Dear Sir,

Such right cannot be claimed all of a sudden. The principles are as follows. You may immediacy approach the civil court and get injunction order from laying any such new road. Such documents must be in existence since more than 60 years if unregistered. 

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Easementary Rights

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

DESCRIPTION AND ANALYSIS :

A. RIGHT OF WAY

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.

REMEDIES

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.

B. RIGHT OF LIGHT& AIR:

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.

REMEDIES

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.

 

Kishan Dutt Kalaskar
Advocate, Bangalore
6230 Answers
499 Consultations

He can't demand road in through your field, when he purchased the land , he must see the access given for the land by the seller otherwise he should demand from him,please also see that right of easement can't be granted to a person violating the right of the other.Also see the tehsil record what is the position of sarkaari access given.

Koshal Kumar Vatsa
Advocate, Gurgaon
2282 Answers
3 Consultations

The easement rights can not claimed as  a matter or rights in one fine morning .

This right can be claimed only if the person is using a pathway belonging to others for more than 15 years and except this pathway there is no other alternative  way for ingress or eagress.

So there is no way elementary rights can be created by agreement in wiring or orally. 

 

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

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. 

- Since, you have purchased the said agriculture land , hence it is absolute legal property , and none is allowed to enter/trespass into the same without getting your consent and approval 

- However , if you refused for allowing him to use your land for road , then that neighbour can approach court for getting direction in his favour under the section 35 of the Indian Easement Act, but court will consider the right of the land being the private land or yours.

- Further , he can move an application before the Land Registry for a right to way through your land , however after getting the notice you can submit your objection for rejecting his application 

- However, you will be given time to settle the dispute amicably , and you may opt some extra land from the said neighbour for giving him a way from your land. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Right to path was never enjoyed by him, no easementary right neither it was attached with the land and if he now wants right to path than have to pay for the same. And not 30 feets road, you can allow walking space that also on payment. Let him approach court for same.

And he has another way to access his land than cannot claim any right.

 

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

 In order to prove easement on the path, he has only a primary burden to prove the absence of any alternate pathway.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

registration not required. 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

He cannot demand the road access rights if he has not enquired about it with the vendor and did not get any solution for that.

He should not have bought the property which is not having road access.

However you may first ascertain from his registered sale deed document that whether he is having any rights for road access through your land and then challenge his rights properly in the court of law.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

It is always better to get it registered so that the future generation do not fight on it once again in the future.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

No he cannot demand 30 feet road from your land but if he have no access to his land and then he can demand pathway to his land from adjacent property from which access to road is nearest. 

He can file suit under Indian easement act but court will grant him pathway as per law no as per his demand. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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