Right of Way and Easement Disputes With Neighbours in India

Disputes over access are some of the most frequent between neighbours: a gate closed across a lane, a wall built on a path, or a plot that can be reached only through someone else's land. The law on these questions is the Indian Easements Act, 1882, and the central idea is the easement, a right that the owner of one piece of land has over another's land for the better enjoyment of their own.

What Is an Easement?

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 that has the benefit is the dominant heritage, and the land that bears the burden is the servient heritage. A right of way, a right to light and air, a right to drain water and a right to draw water are common examples.

How Can a Right of Way Be Acquired?

The Act recognises several ways:

• By express grant, such as a clause in a sale deed or a separate agreement
• By implied grant, where a sale of a part of land carries with it what is necessary to use it
• By necessity, where a plot has no access except through the neighbour's land
• By prescription, through long and uninterrupted use

What Is an Easement of Necessity?

Section 13 provides that where one person transfers or bequeaths immovable property to another, the transferee is entitled to an easement over the transferor's retained land if the property cannot be used without it. A common case is where a larger plot is divided, and the plot sold has no road except through the part kept by the seller. In such a case a right of way is implied, and the seller cannot block it. It must be shown that the access is truly necessary and not merely more convenient.

How Does Prescription Work?

Under Section 15, a right of way can be acquired by long use. The claimant must show that they have peaceably and openly enjoyed the way, as an easement and as of right, without interruption, and for twenty years. The use must have been without secrecy, force or permission, because use with the owner's permission, such as a favour, does not create a right. Evidence usually includes old documents, village maps, revenue records, the testimony of long-time residents and photographs. Where the way is over government land, the period is longer.

Can an Easement Be Lost?

Yes. Under Section 37 and the following sections, an easement can be extinguished in several ways, including release by the owner, permanent change that makes the dominant land unable to use it, and abandonment, as well as non-use for a long period combined with an intention to abandon. A right of necessity ends when the necessity ends, for example when another access is created.

What Remedies Does a Court Give?

A person whose right of way is obstructed can file a civil suit for a declaration of the easement and a permanent injunction against interference. Section 33 of the Easements Act allows a suit for compensation, and where the obstruction continues, for an injunction to restrain it. If an obstruction has just been put up, an urgent temporary injunction under Order XXXIX of the Code of Civil Procedure can restore access while the suit is pending, as our guide to injunction suits explains. Courts often appoint an advocate commissioner under Order XXVI to inspect the site, prepare a sketch and report on the facts, which is highly useful in access disputes.

What Should You Do First?

Before filing, collect the evidence of your right and take steps to preserve the position

• Gather your title deed, the neighbour's deed, survey sketches and revenue maps
• Photograph the path, the obstruction and any gate or wall with dates
• Note the names of neighbours who have seen you use the way
• Send a written notice calling on the neighbour to remove the obstruction
• Avoid breaking the obstruction yourself, because that can lead to a criminal complaint

If your neighbour is claiming that your use of a lane was only by permission, evidence of the long and open use is the most important proof. If you are the owner being asked to allow access, check whether the claim is genuinely necessary or simply convenient, and whether the other party has an alternative.

What About Other Neighbour Disputes?

Boundary disputes, encroachment on a compound wall, overhanging constructions and shared walls are related questions. They often involve title and possession, and in some cases adverse possession, as our guide on adverse possession describes. Noise, smoke and similar disturbances may amount to a private nuisance, for which a civil court can award an injunction and damages.

Access disputes depend on documents and the history of use. Our Civil & Property Law practice advises on easements, boundary and neighbour disputes, and you can request a consultation.