An easement is never conjured out of thin air; it must be acquired. The Indian Easements Act, 1882 recognises three principal channels through which the right travels from the servient owner to the dominant owner — by grant (express or implied), by local custom under Section 18, and by prescription under Sections 15 to 17. Each rests on a different jurisprudential idea: grant on the parties' bargain, custom on the settled usage of a locality, and prescription on long, peaceable enjoyment that the law eventually crystallises into title. Yet the common theoretical thread, as the courts repeatedly note, is that every easement is presumed to spring from a grant — even prescription is merely a grant the law presumes from twenty years of unchallenged user. This article maps all three modes, the strict proof each demands, and the rights that no amount of user can ever ripen into an easement.
Grant as the root of every easement
The orthodox proposition of English and Indian law alike is that, theoretically, the basis of every easement is a grant from the servient owner. Even where no deed exists, the law works backwards from long enjoyment and presumes a lost grant. This is why grant is the most natural and least contentious mode of acquisition: the servient owner, exercising his proprietary freedom, voluntarily burdens his land for the benefit of the dominant heritage. Section 8 of the Act fixes who may create the burden — "An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed." In other words, only a person competent to alienate the servient land (or the relevant interest in it) can grant an easement over it; a lessee for a fixed term, for instance, can grant an easement only co-extensive with his term. To appreciate what is being granted, it helps to first revisit the essentials of an easement — a dominant and servient heritage, accommodation of the dominant tenement, and diversity of ownership.
A grant may be express or implied. The two are not different rights but different evidentiary routes to the same proprietary result. Where the intention is spelt out in a transfer document, the grant is express; where it must be gathered from the circumstances of a transfer, it is implied. The Act itself, in Sections 13 and 35, presupposes that easements can pass invisibly on a transfer or partition of property, which is the statutory home of the implied grant.
Express grant — form, writing and registration
An express grant is made by inserting a clause conferring the easement into a deed of sale, mortgage, lease or other instrument of transfer, the grantor thereby declaring his clear intention to burden his land. The formalities track those for transferring the servient interest itself. Because an easement is an interest in immovable property — an "intangible thing" within the meaning of clause 2 of Section 54 of the Transfer of Property Act, 1882 — its express creation in respect of property of value of one hundred rupees and upwards can be effected only by a registered instrument. An oral grant of such an easement, or one in an unregistered deed, is ineffective to pass the legal right, though it may, as discussed below, take effect as a licence.
The express grant need not use the word "easement"; what matters is that the language, fairly construed, shows an intention to confer a right of the easementary character — appurtenant to a dominant tenement and running with both heritages. The construction of the deed is therefore central, and where the words admit of doubt, the court asks whether the right was meant to enure permanently for the land or merely personally for the transferee.
Implied grant — when the right passes silently
An implied grant arises where, although no express words create the easement, the circumstances of a transfer compel the inference that the parties intended the right to pass. The classic Indian authority is Annapurna v. Santosh Kumar, AIR 1937 Cal 661, where the Calcutta High Court held that the grant of a right of way which had necessarily to be implied on a true construction of the deed had "as much efficacy as an express grant." The implied grant is thus not a weaker species of right; it is a full easement, merely proved by construction rather than by an express clause.
The Act recognises implied grant chiefly in two situations, both turning on the conversion of what was one ownership into two. First, the easement of necessity under Section 13 — where the dominant owner cannot use his property at all without exercising the right over the servient land, the law implies the grant from absolute necessity, not mere convenience. Secondly, the quasi-easement under Section 13(b), (d) and (f) — where, on a transfer or partition, a right that is continuous, apparent and necessary for the reasonable enjoyment of the property had been used by the transferor over the part retained or transferred, that right passes to the transferee (or is reserved to the transferor) by implied grant. Quasi-easements are so called because they arise out of the circumstances of severance: while the heritages were in one hand there could be no true easement (one cannot have an easement over one's own land), but on severance the pre-existing user is converted into a full easement by implication.
The distinction between necessity and grant proper is more than academic, as the Supreme Court underscored in Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234.
Hero Vinoth v. Seshammal — grant does not die with the necessity
In Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234, five brothers had partitioned the family property in 1950, and the partition deed provided a right of way. The appellant later sought to wall off his plot, contending that the way was an easement of necessity that stood extinguished once the respondent acquired alternative access. The trial court accepted this; the High Court did not, and the Supreme Court affirmed the High Court.
The Court drew the decisive line: an easement of necessity under Section 13 lasts only so long as the absolute necessity lasts, and is extinguished under Section 41 the moment the necessity ceases — for example, when the dominant owner acquires another means of access. But an easement of grant is in a wholly different position. Reading the clause in the partition deed, the Court held that the right of way had been granted, not merely conceded out of necessity. A granted easement "would not get extinguished simply because of availability of an alternative access"; it endures for the term of the grant irrespective of whether the dominant owner happens to acquire other routes. The case is therefore the leading modern authority for the proposition that the source of the right governs its durability: necessity is contingent and self-terminating, whereas grant is durable and survives the disappearance of any necessity. For aspirants this is a frequently-tested contrast — necessity is extinguished by Section 41; grant is not.
Acquisition by prescription — Section 15
Prescription is acquisition by long enjoyment. The law presumes, from twenty years of uninterrupted, peaceable user, a grant that has been lost or whose origin cannot be shown. Section 15 is the operative provision, and it lays down three parallel limbs:
(i) where the access and use of light or air to and for any building has been peaceably enjoyed as an easement, without interruption, for twenty years; (ii) where support from one person's land or things affixed thereto has been peaceably received by another person's land (subjected to artificial pressure) or things affixed thereto, as an easement, without interruption, for twenty years; and (iii) where a right of way or any other easement has been peaceably and openly enjoyed by a person claiming title thereto, as an easement, and as of right, without interruption, for twenty years — then in each case the right "shall be absolute."
Two structural features of Section 15 are heavily examined. First, the period is twenty years for private servient land, but where the servient property belongs to the Government, the section is read as if for "twenty years" the words "sixty years" were substituted. (Students must not confuse this with the thirty-year period for adverse-possession-type claims against Government under the Limitation Act; under the Easements Act the figure is sixty.) Secondly, each twenty-year period must be one "ending within two years next before the institution of the suit" in which the claim is contested. The practical effect is striking: prescriptive enjoyment alone does not perfect the right. As held in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 (also reported ILR 34 All 235), the combined working of the Easements Act and the Limitation Act means that a prescriptive right remains inchoate — incomplete — until it is declared or upheld by the decree of a competent court; the enjoyment ripens into an indefeasible easement only when crystallised in litigation falling within the statutory two-year window.
Notice how prescription differs from a necessity-based easement: necessity arises instantly on severance, whereas a prescriptive easement is earned over two decades of conduct.
The character of the user — nec vi, nec clam, nec precario
The quality of enjoyment, not merely its length, decides a prescriptive claim. English law captures the test in the maxim nec vi, nec clam, nec precario — the user must be without force, without secrecy, and without permission. Section 15 imports the same idea through the words "peaceably," "openly," and "as of right." "Peaceably" (nec vi) excludes user maintained by violence or under protest; "openly" (nec clam) excludes furtive or concealed enjoyment of which the servient owner had no opportunity to know; and "as of right" (nec precario) excludes user enjoyed by the leave or licence of the servient owner.
This last requirement is the most litigated. If the dominant owner used the way by the servient owner's permission, the user is precarious and confers no easement, however long it continues — it is a licence, not a prescriptive right. The Supreme Court emphasised in Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103, that a claimant of a prescriptive easement must specifically plead and prove that the right was enjoyed independently of any agreement with the servient owner, because any user with the express permission of the owner is a licence and not an easement. Vague or unparticularised pleadings of "long use" are fatal: the claimant must set out the origin, character and continuity of the enjoyment.
What counts as 'interruption'
Continuity for twenty years must be "without interruption," but the Act gives "interruption" a technical and surprisingly narrow meaning. The Explanation to Section 15 provides that nothing is an interruption unless there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice of it and of the person responsible.
Three consequences follow. First, a mere discontinuance by the dominant owner himself is not an "interruption" — it is a non-user, governed by the extinction provisions, not Section 15. Secondly, an obstruction by the servient owner does not break the prescriptive period unless the dominant owner acquiesces in it for a full year; an obstruction resisted, or removed, or litigated within the year leaves the running of time untouched. This is why an obstruction lasting eleven months, even if acquiesced in, does not defeat the claim. Thirdly, because the obstruction must be by "some person other than the claimant," a voluntary suspension by the dominant owner cannot be set up by him as having interrupted his own time. The upshot is the well-known proposition that a person may, in practice, need to show enjoyment over a span exceeding twenty years to be safe, since the qualifying period must also end within two years before suit.
Section 16 — exclusion in favour of the reversioner
Section 16 protects the owner of the servient land who, during the period of enjoyment, was out of possession because the land was held by another under a limited interest. Where the servient land has been held under or by virtue of an interest for life, or under a term of years exceeding three years from its granting, the time of enjoyment of the easement during that interest or term is excluded from the computation of the twenty-year period — provided the reversioner, within three years next after the determination of that interest or term, resists the claim.
The rationale is one of fairness: a limited owner such as a lessee or life-tenant may have no incentive to resist a growing prescriptive burden, and it would be unjust to allow an easement to be fastened on the reversioner's land behind his back during a period when he could not protect it. Section 16 therefore suspends the running of prescriptive time against the reversioner so long as he acts promptly once the limited interest falls in. Note the asymmetry with Section 15: a lessee's or life-tenant's enjoyment can burden the servient land generally, but the reversioner is given a statutory window to disclaim it.
Section 17 — rights that can never be acquired by prescription
Some advantages, however long enjoyed, will not ripen into easements. Section 17 lists four categories that are excluded from prescriptive acquisition:
(a) a right which would tend to the total destruction of the subject of the right, or of the property on which, if the acquisition were made, liability would be imposed — the law will not allow user to mature into a right whose exercise annihilates the servient subject-matter; (b) a right to the free passage of light or air to an open space of ground (as distinct from light or air to a building, which Section 15 expressly allows) — there can be no prescriptive easement of light or air for vacant land; (c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise; and (d) a right to underground water not passing in a defined channel. The water exclusions in (c) and (d) reflect the principle that diffused surface water and percolating sub-soil water are not the subject of property rights capable of being burdened by an easement; only water in a defined and permanent course can be.
Section 17 thus operates as a negative boundary on Section 15: even impeccable twenty-year user, peaceable, open and as of right, fails if the right claimed falls within any of these four heads. This is among the most directly examinable parts of the topic — candidates should commit the four heads to memory.
Acquisition by custom — Section 18
The third channel is local custom. Section 18 provides simply that "An easement may be acquired in virtue of a local custom. Such easements are called customary easements." The Act's illustrations are familiar: the inhabitants of a town having, by custom, a right to bathe in or take water from a tank, or to bury their dead in a particular plot, or by local custom to dry their cloths or hold a fair on another's land. The defining contrast with a private easement was drawn in the introductory parts of this Act — a private easement is appurtenant to a dominant tenement and is claimed by defined persons through grant or prescription, whereas a customary right is a right in gross, claimed by a large or fluctuating body of persons in respect of a locality, and needs no dominant tenement at all. For the foundational distinctions, see the notes on the Indian Easements Act hub and on key definitions.
To establish a custom under Section 18 the usage must satisfy the classic tests: it must be ancient (from time immemorial), certain, reasonable, continuous, and not opposed to public policy or statute. The leading authority is the Privy Council's decision in Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56.
Lakshmidhar Misra v. Rangalal — the test for customary rights
In Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56, the villagers claimed a right to bury their dead on a particular plot, asserting that it had been reserved and used for that purpose from time immemorial. At trial their counsel disclaimed any reliance on easement or prescription and rested the claim squarely on customary right. The Privy Council took the opportunity to clarify the nature of such rights.
The Board held 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; that the custom, if established, becomes the local law of the district and creates a right in each inhabitant irrespective of any estate or interest he may have in any particular property; and that to make out the right of burial the claimants had to prove user by custom from time immemorial. On the facts the claim failed for want of sufficient proof of immemorial usage, but the principles endure. The case is the standard authority for three propositions tested in examinations: (1) a customary right is confined to a determinate locality and its inhabitants; (2) it does not require a dominant tenement, distinguishing it sharply from a private easement; and (3) it must be founded on proof of ancient, certain and reasonable usage. It also illustrates that the right to bury the dead, claimed for a community, is a customary right rather than a true easement, since it is not appurtenant to any dominant heritage.
Strict proof — the modern caution in Manisha Mahendra Gala
Whatever the mode invoked, the courts insist on rigorous proof. The Supreme Court's decision in Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 INSC 293, is the most recent restatement. The dispute concerned claimed easementary rights over a twenty-foot-wide road on the respondents' land, the appellants resting their case alternatively on prescription, on necessity, and on an agreement said to flow from a sale deed.
The Court rejected every limb. On prescription, it reiterated that the claimant must establish peaceable, open enjoyment as of right, as an easement, and without interruption for the full statutory twenty years ending within two years before suit; bald assertions of user would not do. On necessity, it reaffirmed that nothing short of absolute necessity suffices, distinguishing the convenience-based claim before it. On the alleged grant, the appellants could not point to any operative conferment in the deeds relied on. The Court added, on evidence, that a power-of-attorney holder can depose only to facts within his own personal knowledge, which undercut the appellants' proof of long user. Manisha Mahendra Gala therefore reinforces three lessons: each mode of acquisition has its own distinct ingredients which must be pleaded and proved with precision; the modes are not interchangeable fallbacks; and the burden lies firmly on the party asserting the burden upon another's land.
Grant, prescription and custom compared
It is worth consolidating the contrasts that examiners exploit. Source: grant rests on the parties' voluntary act (express or implied); prescription on long, peaceable, open user presumed to evidence a lost grant; custom on the immemorial usage of a locality recognised as local law. Dominant tenement: grant and prescription both require a dominant and servient heritage and diversity of ownership; a customary right needs no dominant tenement and is a right in gross enjoyed by the inhabitants of a locality. Beneficiaries: grant and prescription benefit defined persons (the dominant owner for the time being); custom benefits a large or fluctuating body. Form: an express grant of an easement over property worth one hundred rupees or more must be by registered instrument under the Transfer of Property Act; prescription and custom require no writing but exacting proof of user. Durability: a granted easement endures for its term regardless of alternative access (Hero Vinoth); a necessity-based implied grant ends with the necessity; a prescriptive right, once perfected by decree, is absolute but until then inchoate (Sultan Ahmad). For the broader taxonomy, see the notes on the kinds of easements and the essentials of an easement.
When a defective grant becomes a licence
A recurring practical question is what happens when an attempted grant of an easement fails for want of form — for instance, an oral grant, or one in an unregistered deed, of an easement over property of value above one hundred rupees. The settled answer is that an instrument or agreement which purports to create an easement but is ineffectual for that purpose may still operate to create a licence. The grantee then enjoys a personal permission to do on the servient land what would otherwise be unlawful, but he acquires no proprietary right running with the land, no right enforceable against successors, and — critically — his user, being permissive (precario), can never mature into a prescriptive easement so long as it remains referable to that permission.
This is the doctrinal bridge between grant and prescription: a defective grant degrades into a licence, and licensed user is the very antithesis of the "as of right" enjoyment that Section 15 demands. It is for this reason that, as Bachhaj Nahar insists, the prescriptive claimant must prove user independent of any agreement with the servient owner. A claimant who began under a licence must show a clear assertion of right adverse to the servient owner — a change in the character of the user — before prescriptive time can even begin to run in his favour.
Frequently asked questions
What are the three modes of acquiring an easement under the Indian Easements Act, 1882?
An easement may be acquired by (1) grant — express or implied (Sections 8, 13); (2) local custom — customary easements under Section 18; and (3) prescription — by twenty years' peaceable, open and uninterrupted enjoyment as of right under Sections 15 to 17. Theoretically every easement is presumed to rest on a grant, prescription being a grant the law presumes from long user.
What is the prescriptive period under Section 15, and how does it differ for Government land?
The period is twenty years of peaceable, open, uninterrupted enjoyment as of right, and that period must end within two years next before the suit in which the claim is contested. Where the servient property belongs to the Government, Section 15 is read as substituting sixty years for twenty years. Until upheld by a court decree the prescriptive right remains inchoate, as held in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227.
Which rights can never be acquired by prescription?
Section 17 excludes four categories: (a) a right tending to the total destruction of the subject of the right or the burdened property; (b) a right to the free passage of light or air to an open space of ground (light/air to a building is allowed under Section 15); (c) a right to surface-water not flowing in a stream and not permanently collected; and (d) a right to underground water not passing in a defined channel.
Does an easement of grant get extinguished when alternative access becomes available?
No. In Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234, the Supreme Court held that a granted easement endures for the term of the grant and does not get extinguished merely because alternative access is later available. Only an easement of necessity under Section 13 is so extinguished, because it lasts only as long as the absolute necessity lasts (Section 41).
How is a customary easement different from a private easement?
A customary easement under Section 18 is a right in gross, claimed by the inhabitants of a defined locality and needing no dominant tenement; once proved it becomes the local law of the district. A private easement is appurtenant to a dominant tenement and is claimed by defined persons through grant or prescription. In Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56, the Privy Council held that a customary right exists only in relation to the inhabitants of a district and must be proved by immemorial, certain and reasonable usage.
What does 'enjoyment as of right' mean and why does permission defeat a prescriptive claim?
It means enjoyment nec vi, nec clam, nec precario — without force, secrecy or permission. User by the servient owner's leave is precarious and is a licence, not an easement, however long it lasts. The Supreme Court held in Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103, that a prescriptive claimant must plead and prove enjoyment independent of any agreement with the servient owner, since permissive user can never ripen into a prescriptive right.