Dear Ankita,
Thank you for your query! I am Aadil and I will try to answer your question.
The short answer to your question would be NO, you still have the ownership right over the said common passage.
Before going into the explanation on why you may still have ownership right over the common way, let us briefly understand what easement means in the Indian legal system.
An easement is defined as a right possessed by the owner or occupier of a property to do or continue to do something in connection with another person’s land according to the Indian Easements Act, 1882. This right is most commonly used for granting the owners of certain properties access to a common pathway, but it could also be used to discharge rainwater on another person’s property or for the right to have uninterrupted access to sunlight on a property.
There are certain essentials that must be met to grant easement rights:
There must be two separate properties: A dominant property and servient property, wherein the servient property is land upon which the easement right is imposed upon.
There must be two separate owners: The owner of the dominant property and the owner of the servient property must be different. A single owner cannot hold both the properties and grant themselves the easement rights over the said property.
The right should be granted for the purpose of beneficial enjoyment to the owner of the dominant property.
Easements can only exist between adjacent properties.
Coming to our current situation, the three properties which were sold by you are now the dominant properties while the common property is the servient property. Here it must be noted that the dominant owner has no right over the servient owner and thus cannot bind them to perform any action. Since you own the servient property, the dominant owners cannot remove your ownership rights over the said property and thus cannot prevent you from using it.
It must be noted that even though you were using the said property for 41 years, in a situation where you were not the owner of the property, you would not be able to claim ownership of the same through the law of adverse possession, as the law of adverse possession necessitates that the individual claiming the adverse possession must also be the only one using it.
Therefore, as long as you are the owner of the servient property, .i.e. the common passage, the other three owners cannot prevent you from using it.
I hope this helps. Thank you for your time and patience!
Regards,
Aadil
