Customary Easements (Section 18 Easements Act)

Of all the four modes by which an easement may be acquired under the Indian Easements Act, 1882, the customary easement under Section 18 is at once the simplest to state and the hardest to prove. It rests on a single sentence of the statute, yet it carries with it the entire common-law baggage of what makes a custom legally binding. A customary easement is not the personal right of a particular owner over a neighbouring plot; it is a right enjoyed by an indeterminate class of persons — the residents of a village, the members of a community — by virtue of a local usage that has hardened into the local law of the place. The Supreme Court itself has called it the most difficult to prove of all easements. This chapter unpacks the bare provision, the essentials that the claimant must establish, and the leading authorities — from Lakshmidhar Misra v. Rangalal in the Privy Council to Ramkanya Bai v. Jagdish in the Supreme Court — that examiners return to year after year.

Section 18: The Bare Provision

Section 18 of the Indian Easements Act, 1882 is among the shortest operative sections in the entire Act. It reads: “An easement may be acquired in virtue of a local custom. Such easements are called customary easements.” The section is accompanied by a single illustration: by the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture; A, having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot, and thereby acquires an easement to graze his cattle on the common pasture in accordance with the local custom.

Two things follow at once from the text. First, Section 18 is not a self-contained code; it is a doorway. It tells us that an easement may arise from a local custom, but it says nothing about what makes a custom valid. For that, the court must import the general law of custom — the requirements of antiquity, certainty, reasonableness, continuity and the rest — which we examine in detail in the chapter on the essentials of a valid custom. Section 18 thus sits at the meeting point of property law and customary law, which is precisely why it appears in the Customary Law syllabus rather than only under property. Second, the illustration is instructive: the right to graze on the common pasture is enjoyed by the cultivator as such, that is, by reason of his belonging to the class of cultivators, not by reason of his owning any particular dominant tenement. That single feature distinguishes the customary easement from every other easement in the Act.

The placement of the section within Chapter II (which deals with the imposition, acquisition and transfer of easements) confirms that the draftsman treated customary easements as a genuine fourth mode of acquisition, standing alongside acquisition by grant, by necessity and quasi-necessity, and by prescription under Section 15. Yet, as we shall see, the courts have repeatedly cautioned that the customary easement is an easement only in a loose and statutory sense; in its true juristic nature it is closer to a customary right than to an easement proper. For a broader orientation to how custom operates as binding law, students should first revisit the introduction to customary law and the Customary Law hub.

What an Easement Is — and Why Customary Easements Are Different

To grasp how a customary easement deviates from the ordinary pattern, one must start with the statutory definition. Section 4 of the Act defines an easement as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. The land for the beneficial enjoyment of which the right exists is the dominant heritage and its owner the dominant owner; the land on which the liability is imposed is the servient heritage and its owner the servient owner.

The architecture of an ordinary easement therefore requires four classical elements: a dominant tenement, a servient tenement, separate ownership of the two, and a right that exists for the beneficial enjoyment of the dominant tenement. A right of way appurtenant to House A over Plot B, or a right to the flow of light and air to A’s windows across B, fits this template perfectly. The right is annexed to the land; it passes with the land on a transfer; and it is meaningless divorced from the dominant heritage.

A customary easement breaks this template in its most fundamental respect: there is no dominant tenement. The right to bathe at a ghat, to cremate the dead on a village cremation ground, to take water from a tank, or to graze cattle on the common pasture is not enjoyed for the beneficial enjoyment of any particular plot of land. It is enjoyed by a class of persons — the inhabitants of the locality — simply because they belong to that class. This is why courts say that a customary easement is unappurtenant: it floats free of any dominant heritage. It is enforceable as a right to do and continue to do something, or to prevent and continue to prevent something, upon land, but the entitlement flows from membership of the community rather than from ownership of neighbouring land. To see how custom acquires this binding, law-creating quality in the first place, compare the discussion in definition and nature of custom.

Lakshmidhar Misra v. Rangalal: The Leading Authority

The locus classicus on customary easements in Indian law is the Privy Council’s decision in Lakshmidhar Misra v. Rangalal, AIR 1950 PC 59 (also reported at 77 I.A. 136), an appeal from Orissa decided on 20 October 1949. The villagers claimed that a particular plot was the immemorial cremation ground of the village and that the zamindar of the Killa Darpan estate could not grant it away to the respondents for the erection of a rice mill. The respondents asserted a valid grant from the zamindar. The case squarely raised the question of the juristic basis on which a community can claim a right to cremate its dead on a piece of land that none of them owns.

The Board, speaking through Sir John Beaumont, held that such a right could not rest on the theory of a dedication (which is appropriate to public rights such as a public highway), nor on the fiction of a lost grant, because a grant cannot be made to a fluctuating body of persons. The true and only basis on which the right could be supported was custom. The Privy Council laid down the much-quoted proposition that “a customary right… can exist only in relation to the inhabitants of a district and cannot be claimed in respect of the public at large,” and that a custom, once established, “makes the local law of the district” and creates a right in each of the inhabitants irrespective of his estate or interest in any particular property.

Two doctrinal points from Lakshmidhar Misra are heavily examined. First, the case draws the dividing line between a customary right (public in nature, belonging to the inhabitants of a locality and creating the local law of the place) and an easement (private, annexed to a dominant tenement). Section 18 is the statutory bridge that allows certain such customary rights to be recognised and enforced through the easement machinery. Second, the Board addressed the requirement of antiquity. While English law insists that a custom must date back to legal memory (the year 1189), the Privy Council recognised that this precise English rule of time immemorial cannot be mechanically transplanted to India; what is required is that the usage be ancient and have been enjoyed for so long that the mind of man runneth not to the contrary, proved by evidence of long and uniform user. This relaxation of the English memory rule is a recurring theme across the Indian authorities and is developed further in our treatment of the essentials of a valid custom.

State of Bihar v. Subodh Gopal Bose: Customary Easement Is Not a True Easement

The clearest modern statement that a customary easement is not, strictly speaking, an easement at all comes from the Supreme Court in State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281. (This case must not be confused with the well-known constitutional decision State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92, which concerned Article 19(1)(f) and is an entirely different matter.) The 1968 decision concerned a claimed customary right of inhabitants connected with land and minerals, and gave the Court occasion to analyse the nature of the right recognised by Section 18.

The Court observed that a customary easement “is not an easement in the true sense of that expression”: it is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of any dominant tenement. Rather, it is recognised and enforced as part of the common law of the locality in which it obtains. Crucially, the Court held that because the sanction for its enforceability lies in custom, the claimed right must satisfy all the tests which a local custom must satisfy in order to be recognised by the courts — antiquity, certainty, reasonableness, continuity, and the rest. In other words, Section 18 does not lower the evidentiary bar; it raises it, because the claimant must prove both the easement-like content of the right and the validity of the underlying custom.

This dual burden — prove the custom, and prove the right — is the practical heart of customary-easement litigation. A claimant who establishes long user but cannot show that the usage is referable to a definite, reasonable and certain custom of a defined locality will fail. Conversely, a claimant who proves a custom in the abstract but cannot connect it to a recognisable easementary content (a right to do, or to prevent, something upon identified land) also fails. The interplay between custom as a source of substantive law and the easement framework is why this topic is studied alongside custom’s role in personal law, such as custom as a source of Hindu law.

Ramkanya Bai v. Jagdish: The Most Difficult Easement to Prove

The most frequently cited recent Supreme Court authority is Ramkanya Bai v. Jagdish, decided on 4 July 2011 (reported as AIR 2011 SC 3258). The Court was concerned with a claim to a customary right of way, and it took the opportunity to restate, in compact form, the law on all four modes of acquiring easements. Of these, it singled out the customary easement as the most difficult to prove, precisely because the claimant must establish a valid local custom in addition to the user.

The Court reiterated that to establish a custom for the purpose of Section 18, the usage relied upon must be shown to be ancient, certain, reasonable and continuous, and that a custom which is in derogation of the general rules of law must be established by clear and unambiguous evidence. Vague, occasional or permissive user will not do; nor will a usage that is uncertain in its scope or unreasonable in its content. The decision is valuable in examinations because it gathers, in one place, both the catalogue of the four modes of acquisition (grant, necessity, prescription under Section 15, and custom under Section 18) and the heightened standard of proof that custom demands.

Read together, Lakshmidhar Misra, Subodh Gopal Bose and Ramkanya Bai furnish a complete doctrinal arc: the customary easement rests on custom, not on grant or dedication; it is not a true easement because it lacks a dominant tenement; and it is the hardest of all easements to establish because the claimant must satisfy every test of a valid custom. A student who can recite these three cases with their holdings has the spine of any answer on Section 18.

Essentials a Claimant Must Prove

Because Section 18 borrows the validity tests of custom wholesale, a claimant to a customary easement must satisfy the same essentials that govern any binding custom. These are examined fully in the companion chapter on the essentials of a valid custom; here we apply them specifically to the easement context.

Antiquity. The usage must be ancient. English law fixes the point of legal memory at 1189, but Indian courts, as Lakshmidhar Misra indicates, do not insist on that rigid date; what is required is enjoyment for so long that the origin of the usage is lost and it may be presumed to have existed from time immemorial. Long, uniform and uninterrupted user is the usual proof.

Certainty. The custom must be certain both as to the class of persons entitled and as to the content and extent of the right. A claimed right to graze “some” cattle on “some” land, with no defined locality or class, is void for uncertainty.

Reasonableness. The custom must be reasonable, judged by reference to the time of its origin and not by present-day notions alone. A custom that is unreasonable, oppressive or that would entirely destroy the servient owner’s interest will not be upheld. A custom permitting the inhabitants to take the whole produce of the servient land, leaving nothing to the owner, would fail this test.

Continuity and peaceable enjoyment. The usage must have been continuous and must have been enjoyed peaceably, openly, and as of right (nec vi, nec clam, nec precario — not by force, not by stealth, not by permission). A user that is interrupted, secret, or merely permissive cannot ripen into a custom.

Obligatory and not opposed to law or public policy. The custom must be regarded as obligatory by the class claiming it, and it must not be in conflict with any statute or with public policy. A custom abhorrent to justice, equity or good conscience — or one expressly abrogated by legislation — cannot found a customary easement.

Customary Easement of Privacy: Gokal Prasad v. Radho

One of the most celebrated illustrations of a customary easement is the right of privacy recognised in parts of northern India. In Gokal Prasad v. Radho, (1888) ILR 10 All 358, a Full Bench of the Allahabad High Court considered whether the opening of a door and window overlooking the courtyard of a neighbouring house, where the women of the household carried on domestic activities, infringed a customary easement of privacy. The court found, on the evidence, that in the mohalla where the parties lived there existed an established custom protecting the privacy of the inner apartments, and that this custom was enforceable as a customary easement notwithstanding the absence of the twenty-year user required for a prescriptive easement.

The right of privacy is a particularly instructive customary easement for three reasons. First, it shows that customary easements are not confined to rights of way, water and grazing, but extend to negative rights — here, the right to prevent the servient owner from doing something (opening overlooking apertures) that disturbs the privacy of the dominant inhabitants. Second, it demonstrates the locality-specific character of custom: a customary right of privacy proved for one mohalla or town does not automatically exist elsewhere; it must be proved for the locality in question. Third, it underscores that custom can supply, through Section 18, what prescription under Section 15 cannot — a right established by community usage rather than by a fixed statutory period of individual enjoyment. The privacy cases sit at the intersection of customary law and personal practice, much as custom operates within Muslim law.

Customary Rights of Procession: Manzur Hasan v. Muhammad Zaman

The Privy Council’s decision in Saiyid Manzur Hasan v. Saiyid Muhammad Zaman, AIR 1925 PC 36 (51 I.A. 49), is often paired with the easement cases because it clarifies the boundary between a customary right and a public right, and because religious processions are a classic illustration of community usage. The dispute arose at Aurangabad between the Shia and Sunni communities over the right of the Shias to conduct Moharram processions, with the ceremony of matam, along the public roads.

The Board held that persons of whatever sect are entitled to conduct religious processions, with their appropriate observances, along a public highway, provided they do not interfere with the ordinary use of the highway by the public and subject to such directions as the magistrates may lawfully give to prevent obstruction or breaches of the peace. Importantly, the Board recognised that a suit for a declaration of such a right is maintainable; it is not merely a matter of the criminal law of nuisance. The case is valuable because it distinguishes the public right of all citizens to pass and re-pass along a highway from a customary right that a particular community may establish in respect of a locality, and it shows the careful balance courts strike between communal usage and the general public interest — a balance also visible in Lakshmidhar Misra, where the cremation custom was upheld but subject to the provision of an equally convenient alternative if the existing ground had to be displaced.

Customary Easement Distinguished from Prescriptive Easement

The distinction between a customary easement under Section 18 and a prescriptive easement under Section 15 is among the most heavily tested comparisons in this subject. Section 15 confers an easement on the owner of a dominant tenement who has, as of right and without interruption, enjoyed the access and use of light or air, a right of way, or other right, for twenty years (thirty years against the Government). The two modes differ fundamentally in several respects.

Beneficiary. A prescriptive easement is personal to the dominant owner and is appurtenant to a defined dominant tenement; it is enjoyed for the beneficial enjoyment of that tenement. A customary easement is enjoyed by an indeterminate class — the inhabitants of a locality or the members of a community — and is not annexed to any dominant tenement.

Basis of the right. Prescription rests on long individual user from which a grant is presumed; the customary easement rests on a local custom that has become the law of the locality, as Lakshmidhar Misra explains.

Period. Prescription requires a fixed statutory period (twenty or thirty years) of enjoyment as of right. A custom requires antiquity — immemorial or very long usage — but is not tied to a precise statutory count of years; indeed, in Gokal Prasad a customary right of privacy was upheld notwithstanding the absence of twenty years’ user.

Dominant tenement. Prescription presupposes a dominant and a servient tenement in separate ownership; a customary easement has no dominant tenement at all.

Standard of proof. Both must be proved, but, as Ramkanya Bai stresses, the customary easement carries the additional and heavier burden of proving a valid custom, which is why it is the hardest easement to establish.

Customary Right versus Customary Easement

A subtle but examinable distinction is that between a customary right simpliciter and a customary easement under Section 18. The two overlap heavily and the terms are sometimes used interchangeably, but they are not identical. A customary right in the broad sense is a right belonging to the inhabitants of a locality as part of the local law — for example, a public right to hold a fair on a particular maidan, or a community right to bathe at a ghat. Some such rights are public rights enjoyed by the inhabitants generally and are not, in their nature, easements at all; the Easements Act in such cases simply recognises them without converting them into easements.

A customary easement, by contrast, is that sub-set of customary rights which has the content of an easement — a right to do, or to prevent, something upon identified land — and which Section 18 expressly clothes with the character of an easement so that the easement machinery (including the provisions on disturbance and remedies) becomes available. The grazing illustration to Section 18 is a pure customary easement; the right of the inhabitants of a district to cremate their dead in Lakshmidhar Misra was treated as a customary right enforceable through the same principles. The practical upshot is that not every customary right is a customary easement, but every customary easement is founded on a valid custom. For the conceptual taxonomy of customs — local, general, family and class — that underlies this distinction, see kinds of custom.

Disturbance, Extinction and Remedies

Once a customary easement is established, its disturbance is actionable in the same way as the disturbance of any other easement. The dominant claimants — or, in the case of a customary easement, the members of the class entitled — may sue for a declaration of the right and for an injunction restraining its disturbance, and, where actual damage is suffered, for compensation. The principle in Manzur Hasan that a declaratory suit lies to establish a community’s right is directly relevant here: the existence of a criminal remedy for nuisance does not bar a civil suit to vindicate the customary right.

As to extinction, a customary easement, being founded on custom, endures so long as the custom endures. It is not lost merely by non-user for a period that would extinguish a prescriptive easement, because its sanction is the continuing local law rather than individual enjoyment. It may, however, come to an end if the custom itself is abandoned by the community, if it becomes obsolete, or if it is abrogated by competent legislation. Where the servient land is required for a public or paramount purpose, the courts — as the Privy Council indicated in the cremation-ground context — may permit displacement of the customary user provided an equally convenient alternative is furnished, balancing the community’s customary interest against the larger public interest.

Finally, a customary easement that has become unreasonable in changed circumstances may cease to be enforceable, because reasonableness is a continuing requirement of a valid custom: a usage reasonable at its origin may, with the transformation of the locality, become so oppressive or so destructive of the servient owner’s rights that the courts will decline to enforce it. This continuing scrutiny of reasonableness is what keeps the doctrine of customary easements anchored to the general law of custom rather than allowing it to ossify into an unqualified entitlement.

Exam Strategy and Common Pitfalls

For judiciary and CLAT-PG aspirants, a few points repay attention. First, always anchor your answer in the exact text of Section 18 and its grazing illustration; examiners reward candidates who reproduce the statutory language accurately. Second, lead with the trinity of cases — Lakshmidhar Misra v. Rangalal (AIR 1950 PC 59) for the basis in custom and the locality limitation, State of Bihar v. Subodh Gopal Bose (AIR 1968 SC 281) for the proposition that a customary easement is not a true easement and must satisfy every test of a valid custom, and Ramkanya Bai v. Jagdish (AIR 2011 SC 3258) for the ‘most difficult to prove’ characterisation and the catalogue of the four modes of acquisition.

Third, do not confuse the two Subodh Gopal Bose decisions: the 1954 constitutional case is on Article 19(1)(f), while the 1968 case is the customary-easement authority. Fourth, when asked to distinguish customary easements from prescriptive easements, organise your answer around beneficiary, basis, period, dominant tenement and standard of proof — the five axes set out above. Fifth, remember the illustrative customary easements that examiners love: grazing on common pasture (the statutory illustration), the right of privacy in Gokal Prasad v. Radho, the right to cremate or bury the dead, the right to bathe at a ghat, and the right to take water from a village tank. A well-structured answer that quotes Section 18, states the essentials of a valid custom, marshals the three leading cases, and offers two or three concrete illustrations will comfortably satisfy any examiner. For the broader foundation on which all of this rests, keep the Customary Law hub close at hand.

Frequently asked questions

What is a customary easement under Section 18 of the Easements Act, 1882?

A customary easement is an easement acquired in virtue of a local custom. Section 18 provides that “an easement may be acquired in virtue of a local custom; such easements are called customary easements.” The statutory illustration is the right of every cultivator of village land to graze cattle on the common pasture. Unlike an ordinary easement, it has no dominant tenement and is enjoyed by a class of persons — the inhabitants of a locality — by reason of their membership of that class.

Which case is the leading authority on customary easements?

The Privy Council’s decision in Lakshmidhar Misra v. Rangalal, AIR 1950 PC 59 (77 I.A. 136), is the locus classicus. It held that a right to cremate the dead on village land rests on custom (not on dedication or lost grant), that a customary right can exist only for the inhabitants of a district and not the public at large, and that an established custom makes the local law of the district.

Is a customary easement a true easement?

No. In State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281, the Supreme Court held that a customary easement is not an easement in the true sense: it is not annexed to a dominant tenement and is not exercisable for the more beneficial enjoyment of any dominant tenement. It is recognised as part of the common law of the locality, and being founded on custom it must satisfy every test that a valid local custom must satisfy.

Why is a customary easement said to be the most difficult easement to prove?

In Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, the Supreme Court described the customary easement as the most difficult to prove among the four modes of acquisition. The reason is the dual burden: the claimant must establish not only the easement-like user but also a valid local custom — ancient, certain, reasonable and continuous — by clear and unambiguous evidence.

How does a customary easement differ from a prescriptive easement?

A prescriptive easement under Section 15 is personal to a dominant owner, is appurtenant to a defined dominant tenement, and requires twenty years (thirty against the Government) of enjoyment as of right. A customary easement under Section 18 is enjoyed by an indeterminate class, has no dominant tenement, rests on an ancient local custom rather than a fixed statutory period, and was upheld in Gokal Prasad v. Radho even without twenty years’ user.

Can a customary right of privacy be claimed as a customary easement?

Yes. In Gokal Prasad v. Radho, (1888) ILR 10 All 358, a Full Bench of the Allahabad High Court recognised a customary easement of privacy protecting the inner apartments of a house from being overlooked, where such a custom was proved for the locality. It illustrates that customary easements may be negative rights and that they are locality-specific and must be proved for the place in question.