title by prescription
Sam D'costa
(Querist) 01 May 2010
This query is : Resolved
"AND WHEREAS the Mr X are claiming the said property in their absolute physical and uninterrupted use, occupation and possession and as such they have acquired the title in respect thereof by prescription and the Owners of the said property are as per the Property Register Card shown to be one Mr Y & Others ?
What does title by prescription means. We are just occupier and our name is not even on 7/12 under kabjedar. So now this is the MOU between Mr x and Builder where he is claiming that he wil bring our name on record and for the same mr x wil sign special power of attorney in favour of builder. Please reply sir.
A V Vishal
(Expert) 01 May 2010
S.15 of the Indian Easements Act defines "Acquisition by prescription" as
Where the access and use of light or air and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and 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 by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contexted.
Explanation I: Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making or authorising the same to be made.
Explanation III: Suspensions of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV: In the case of an easement to pollute water the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to government, this section shall be read as if, for the words "twenty years" the words "thirty years" were substituted.
Illustrations
(a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceable and openly enjoyed by him, claiming title thereto, as an easement, and as of right, without interruption, from lst January, 1862 to lst January, 1882. The plaintiff is entitled to judgement.
(b) In a like suit the plaintiff shows that the right was peaceable and openly enjoyed by him for twenty years, the defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed "as an easement" for twenty years.
(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed "as of right" for twenty years.
Comment: As far as the question of opening of new windows is concerned, it is open to the defendants to use their property in any manner permitted by law; and hence they cannot be restrained from opening new windows, as no customary right of privacy appears to have been pleaded or proved. This position is not disputed by the plaintiffs. It is, however, equally clear that, if the defendants open any new windows, the plaintiffs are fully entitled to block the same by raising the height of their walls and the defendants are not entitled to break or damage the said walls or any portion thereof so as to remove the obstruction to their new windows. Smt. Anguri v. Jiwan Dass AIR 1988 SUPREME COURT 2024
R.R. KRISHNAA
(Expert) 01 May 2010
Dear Sam,
Title can be acquired through Adverse Possession. In your case X has claimed to hold absolute physical and uninterrupted use, occupation and possession. It is not sufficient. X should prove that he has held hostile title and user against the true owner and it should have been for more than the statutory period of 12 years to the clear knowlegdge of the true owner. X should also show that by such above acts X has established hostile title in the property against the title of the true owner.
As regards the POA to be executed in favour of the builder you can proceed accordingly.
