C.NOWSHAD (ADVOCATE) 26 February 2012
Mr.A owes a property. His neighbour has a right of way to their house through the land of Mr.A. the right is an easementary right. he has one another passage also to his house. after few years, The neighbour sold his house to one another person. whether that third party has the right to enjoy the easementary right of his predecessor..? if he has, whether there should be a mentioning of the easemrntary right in the sale deed..?
Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 26 February 2012
Easments i.e servient heritage - always go with the dominant heritage (i.e the house). It is not necessary that sale deed contains a covenant to that effect if the easmentary right can otherwise be proved adequately and is well established. Now even if the subsequent purchaser of neighbour - claims to be not bound by the easment - it is negative covenant running with the land and can be enforced against the subsequent purchaser if he had the knowledge of the same. Such easmentary rights can be proved by leading evidences as to particular transactions/instances where such right or custom was upheld/recognised etc. It is relevant as per S.13 of the Indian evidence act, also evidence can be led by opinion of neighbours and village elderlies u/s 48/49/32(4).
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