My grandfather had partitioned the land to my father and his brothers. During the partition time like 1975 there is nothing mentioned about the road access to the property we were using the roads for about 40 years. Now my uncle whose land comes first has closed the access for us. Can I claim the road access to my property .can he block the access to us. My land has crop now.
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Hey,
Yes, you can claim that you have been using the road for 40 years now and so have easementary rights over it by the rule of prescription. You can approach the civil court to grant the same as a matter of right. You can also claim an injunction to not disturb the path until that court gives judgement in this regard.
In a joint family partition every share holder has proper right in enter and exist. No sharer can close access to other shareholder. It is right of all sharers. A sharer having land at front of public access cannot close exist and entry to others. It is not easement of necessity, it is a right arising out of joint property. File a suit for mandatory injunction seeking access. You will get it.
You can claim easmentary right of necessity if there is no other access to your land
2) Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours.
3) under section 35 of easement act you can obtain permanent injunction restraining your uncle from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs .
Dear Sir/Ma'am,
you can claim the road access to the property since you have using it for 40 years and therefore you have easementary right over the same.
You can file suit to get it as a right and also ask for an injunction so that the other party does not disturb your movement until the final verdict.
Thank you
Seems the partition was not proper with regard to access.
40 years or less or more is not very important. Most important thing is whether there is any other access available or not ?
if you dont have any other means/way to access your property then nobody can stop you to access your property.
As there is no mention about the road access, it is legally presumed that the road should be used in common by all the beneficiaries under the partition. The act of your uncle is unlawful. You may challenge it at a court of law through your local lawyer.
Under the easements act you can claim a right of way over his property and a suitable settlement may be arrived at which may include a portion of the property being set aside for the road.
You file a suit for declaration of your easementary right qua the road and seek permanent injunction to stop your uncle from creating similar obstacles in future.
Since you have been using the pathway for road access for all these decades, your uncle cannot stop you from using the pathway for road access.
You can challenge the same legally by filing a suit for mandatory injunction claiming easement rights.
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B
When there is an event of land division resulting in a property owner being unable to use and access their property, an easement of necessity may be created by law. In essence, the “necessity” is for the non-landlocked property (servient tenement) to give rights of way to the landlocked property (dominant tenement).
Therefore you can file a suit for the said relief and remedy to the present problem.
He can only block if it's private land. Still as per easement laws he has to give access to you
- Since, you father got the said property by way of partition of ancestral property , then legally he become the owner and that property become his self acquired property .
- Further, as the said partition deed is silent for the road , and your uncle has closed the accesses which you were using since last 40 years , then such acts of uncle are against the law.
- Firstly you should lodge your complaint with the commissioner of Municipal Corporation of your area for arranging the same.
- if no response, then file a suit against him under The Indian Easement act , for claiming path to your house from their property.
.- under section 35 of the Indian Easement Act , you can obtain permanent injunction restraining your uncle from obstructing your right to use the road.
- Further, as you are using the said road for long period. then you can get order from the court on the ground of adverse possession as well.
