Access to road by public 251215
Sir, there is this road that provides access to more than five households and that has been in use for more than two decades. A person of one of these houses,had purchased part of the entrance,decades ago(as per his claims), about a feet wide on one corner of the approach to this road, for erecting a sign board, to display how to approach his property. Now he says entrance to the road is as per his whims as he can block off the road/impede entrance to the road, by constructing a pole on his side of property. The entrance to this road is just wide enough to allow a four wheeler only.
Can a person block access to a road that has been used by the public for a long period of time even if he owns part of the road? He has encroached on a part of my land(constructed a gate pillar) and when asked, pulls up this threat of blocking access, at least to my car, because the road entrance is narrow.
What are my options? What are the rights of the public as to access by foot, by vehicles, on such a road? How do I proceed to remove his gate pillar erected in the last two days on my property?
Asked in Property Law from Thrissur, Kerala
If the public has been accessing the road for decades or more than no person can threaten to block it or deny access to it in future.
If this person is trying to stop your access also on personal grounds you can restrict him from doing this by obtaining a permanent injunction against him from denying you access to your property i.e., ingress and egress to your property.
If he has encroached on your land, you must have reclaimed it back by filing a declaration, but you choose to keep quiet under duress or threat from that person that he will block it permanently. consult an advocate and initiate the case if it is possible even now.
1)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.
2) you can claim easmentary right of necessity as there is no other way to reach your house
3) under section 35 of easement act you can obtain permanent injunction restraining your neighbour from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs
If this pathway had been in use for public for ingress and egress purpose for a long time, nobody can obstruct the pathway by any means suddenly for any flimsy reason, if he is doing so, it may considered as an illegal act. Easements rights cannot be deprived at anyone's fancies and whims.
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 easement 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.
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.
Therefore, if the neighbor is disturbing or projecting any obstruction in the existing pathway, a mandatory suit seeking to restrain him from putting up any structure or obstruction that would disable the other user from using the pathway and also an an application for interim injunction on the same lines til the disposal of main suit wold be an option before you for the present to tide over the crisis.
Thank you, all of you! Will follow up in the near future. I did not expect to receive so many valuable inputs, so quickly, that too on a Christmas Day! Great site, great work....5 stars to Kaanoon.com!
Asked 1 year ago
Thanks for your appreciation
You are welcome for your appreciations and you are welcome to seek further clarifications on the subject if need be in the future too.
1. No. He can not block the road which is being used by all the adjoining house owners without due process of law,
2. He has purchased only a portion of land in one side of the entrance which does not entitle him to construct a gate pillar on your land or other's land to block the entrance of a car,
3. If anyone illegally constructs a gate pillar on your land, you have the liberty to remove the said illegal construction and report the matter of making illegal construction on your land to the police.
You have to approach the munsiff court and file a suit for injunction and demolition of illegal construction done two days before on the side of the road.If the road is comes under the road register of municpality or panchayath, please include the authority as one of the party in the suit. He can not block your access to the road.
In the encroachment issue file another suit for recovery of land .Contact a local lawyer.
No he cannot do this. All the affected persons should file a lawsuit for injunction against him to restrain him from blocking the access to their respective properties. This apart, you can individually file a lawsuit for eviction against him to evict him from the part of your property which he has trespassed into.