How to prove right of easement?

On considering the rival submissions and on close scrutiny of the evidence, it would reveal that the plaintiff did not adduce satisfactory evidence to show that he has acquired easement by prescription. An easement can be acquired by prescription under Section 15 of the Easements Act.Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly. This, he must do by showing a grant conferring an easement in express term or by necessary implication, or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquisition of the owner of the servient tenement that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation. Where an easement is claimed as a partenant to certain land, the burden is on the party claiming it to show that the original grantee of an easement was the owner of the land in question at the time of the grant. When the party claiming the easement had made prima facie showing of a prescriptive title, it is then incumbent on the owner of the survient tenement to show by sufficient affirmative proof that the use has been by virtue of a licence or permission or any other defence which would destroy the prima facie showing. On the other hand, where the servient owner sets up the defence of bona fide purchaser and proves the purchase, payment for, and ownership of the land, the burden then shifts to the claimant to show that such owner had actual or constructive notice of the easement before the purchase. The question whether a cultivator has access to his field through the field of another has to be decided on the basis of convenience and not on the basis of acquisition of right of way by prescription. A right of way may be acquired by prescription where the same has been peaceably and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. Thus, in the present case it is for the plaintiff to prove that the disputed path way was being used openly and peaceably for 20 years.

Bombay High Court

 

Tanba S/O Nusaji Mahajan vs Pandhari S/O Nusaji Mahajan on 5 May, 2004

Equivalent citations: 2004 (6) BomCR 782, 2004 (4) MhLj 109

Source https://www.lawweb.in/2016/07/how-to-prove-right-of-easement.html?m=1