• Pathway to our property

More than 60 years we are using a pathway which is belong to my neighbor, this is the only way to our land. On 1986 UDR survey the pathway is subdivided as pathway.but now the land owner object us to use the pathway. What can I do.
Asked 10 months ago in Property Law from Tiruppur, Tamil Nadu
Religion: Hindu
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)  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 .
Ajay Sethi
Advocate, Mumbai
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Hi, You can file a suit for elementary right of way and also for bare injunction not to  obstruct  in use of right way.  

2. You have good case and court will definitely grant order in your favour. 
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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you cannot be denied right of way merely because your name is not registered in patta 

only one family name may be regd as in sub division of land other family members should not have difficulty in accessing their property 

you are claiming right of way as there is no other access to your property 
Ajay Sethi
Advocate, Mumbai
23290 Answers
1219 Consultations
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You have absolute right for using the pathway if it is used more than 20 + 2 years uninterruptedly and  as of right . So you may approach civil court and seek injunction against the person who object the usage under the ground  easement by necessity .So all the other person who used this path way can  also join with you. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1. It has already been recorded as pathway in Govt. books or records,

2. Moreover, it is the only path trough which you can have ingress and outgress to and form your land and certainly you have the easement right to your land,

3. Your neighbour has no right to raise any objection in your using the said pathway,

4. Lodge a police complaint against your neighbour if he ever threats you or intimidates you while using the said pathway. 
Krishna Kishore Ganguly
Advocate, Kolkata
12117 Answers
231 Consultations
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1. The land has already bee recorded as a pathway by the local Municipality/Panchayat,

2. The names of the pother families can now be included by filing an application before the BLRO informing his as to who all are using the said pathway to include your name in the Patta.
Krishna Kishore Ganguly
Advocate, Kolkata
12117 Answers
231 Consultations
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You can claim the right to easement over the pathway i.e the right to use someone else's land to access your property. So if the neighbour restrains you from accessing your property through his pathway then file a suit for injunction against him. 
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
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More than 60 years we are using a pathway which is belong to my neighbor, this is the only way to our land. On 1986 UDR survey the pathway is subdivided as pathway.but now the land owner object us to use the pathway. What can I do.
There are plenty of settled cases in your favor and supporting your case.
A right of way easement dates back to common law principles of the right to the free flow of water, and for allowing neighboring landowners the ability to travel over another's property. A right of way is a type of easement that allows a person to pass through another's land. Typically, a right of way easement is a roadway or pathway for travel through another's property that benefits a particular person or benefits another parcel of land. This type of easement allows reasonable use for the passage and right of travel to the person holding it, or for the land whose benefit the right of way easement was established. The owner of the land keeps the benefits and privileges of ownership as specified in the easement. Although ownership rights of property are lessened by an easement, society at large benefits from the additional freedom of movement.

A supreme court judgment in this regard will be a helpful reference to you, the judgement is in Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors on 5 January, 2010;
The gist of the said judgement is given below for your information:
After the parties adduced evidence in support of their respective cases and after hearing the parties, the IInd Additional Munsif, Trivandrum decreed the suit for declaration of easement right and for injunction filed by the original plaintiff (since deceased), holding inter alia that :- The court noted that the plaintiff had claimed easement of necessity as well as easement of grant. According to the plaintiff, during the lifetime of Yogini Amma itself, `B' schedule pathway had been given to him as an easement of grant, which had been in use from those days and even prior to the execution of the settlement deed. The deed does not refer to the existence of `B' schedule pathway for the plaintiff to access `A' schedule property. The defendants had alleged the existence of two alternative pathways leading to the `A' schedule property. However, the same was denied by the sole witness produced by the original plaintiff (since deceased). The defendants could not lead any evidence to substantiate their claim that these pathways provide access to `A' schedule property. In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A' schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. According to the plaintiff, he had been residing in the building on `A' schedule property and had been using `B' schedule pathway from the year 1940. A trace of this pathway could be presumed to be in existence from the time when the Ashramam acquired the properties. As per the deed of settlement, there is a separation of tenements. At the time of its execution itself, the plaintiff could have had access to `A' schedule property only through `B' schedule pathway. As `B' schedule pathway was required for the reasonable and convenient use of the plaintiff's property and that on severance of the tenements, plaintiff can be presumed to have got a right over `B' schedule pathway by an implied grant and also an easement of necessity. It is not on record that either Yogini Amma, or the defendants themselves until 1982 had obstructed this use of pathway. There is no reason to disbelieve the plaintiff's version that Yogini Amma had given `B' schedule pathway as grant for his use as he was a close relative of the former. There is an apparent and continuous use which is necessary for the enjoyment of the `A' schedule property within the meaning of Section 13(b) of the Indian Easements Act, 1882, and, therefore, the plaintiff is entitled to easement right in respect of the pathway. The defendants have not entered the witness box to disprove the evidence led by the plaintiff.

13.On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff's claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B' schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A' schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B' schedule pathway. An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar's Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B' schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.



You may file a suit for easement rights and also mandatory injunction.


T Kalaiselvan
Advocate, Vellore
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file declaratory suit for you right over the pathway. because you have attained easement right in the pathway by using it as way of access for 60 years. You may file an application under section 145 crpc before SDM/collector and prevent him to creating any type of obstacle.

court authenticating your right in the subject matter by passing decree in declaratory suit and that decree has effect to prevent any person who try to infringe your right.
Shivendra Pratap Singh
Advocate, Lucknow
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41 Consultations
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Hi, you can't add your name in Patta it is better all of you can file for elementary right of path.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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