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Report No. 89

Chapter 25

Section 25: Acquisition of Easements by Prescription

25.1. Section.-Acquisition of easements by prescripti.-The legal framework.- It is well-known that the running of time has two important facets in l.-the barring of a remedy and the creation or extinction of rights. The latter has come to be known as "prescription", while the former is known as limitation. Prescription as creating certain rights (known as acquisitive prescription) is dealt with in the Limitation Act in sections 25 and 26, in the context of easements.

These two sections apply only to those areas where the Indian Easements Act, 1882 (5 of 1882) does not extend1. The reason why the Indian Statute Book, in two enactments extending to two different areas, deals with the subject of easements is historical. Provisions for the acquisition of easements by prescription on the analogy of the English Act2 were introduced for the first time in India in 1871 in the Limitation Act, 1871, and repeated in the Limitation Act of 1877. [The English Act on the subject had been regarded as applicable in the Presidency towns].

Later, as a part of the plan for a civil code, the Easements Act, 1882, was passed, but it was not applied throughout India in view of the reservations expressed by some of the local Governments. Hence, the provisions in the Limitation Act relating to easements continued to apply to areas, where the Easements Act had not been applied, either initially or by subsequent extension. This position continues today.

Although the Law Commission, in its Report on the earlier Limitation Act, recommended3 the extension of the Easements Act, 1882 to the whole of India (and repeal of sections 26-27, Limitation Act, 1908) that could not be done, owing to certain constitutional difficulties felt by the Ministry of Law4. Sections 26 and 27 of the Act of 1908 have been re-enacted in sections 25 and 26 of the present Limitation Act. For the purposes of the present Report, it is unnecessary to make any detailed comments as to the constitutional aspect. Accordingly, we proceed to a consideration of the provisions contained in the relevant sectors.

1. Section 29(4), Limitation Act, 1963.

2. Prescription Act, 1832 (English).

3. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 56.

4. Statement of Objects and Reasons annexed to the Limitation Bill, 1962.

25.2. Section.-The theme.- Section 25 deals with the acquisition of easements by prescription. Sub-section (1) makes a two-fold provision. The first half deals with access and use of light or air to and for any building, which has been peaceably enjoyed with the building as an easement and as of right without interruption for 20 years. At the expiry of the twenty years' period, the right to such access or use of light and air becomes absolute and indefeasible.

The second half of the section provides that where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and already enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right of such way, watercourse, use of water or easement becomes absolute and indefeasible.

Sub-section (2) of section 25, in substance, requires that the period of twenty years should be a period ending within two years next before the institution of the suit wherein the claim to such period relates is contested. By sub-section (3), where the property over which a right is claimed under sub-section (1) belongs to Government, the period must be thirty years. The meaning of "interruption" for the purposes of the section is explained by the Explanation to the section.

25.3. No change needed in section 25.- No change is needed in section 25. Section 26 is dealt with in the next Chapter.

The Limitation Act, 1963 Back

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