• Easement to farm land that I inherited after partition of family farm land

Our family farmland in Karnataka was divided between my brother and me and I ended up getting 4 acres of farmland in 2014. To get to my portion of the land we always had been going through the portion of land that ended up going to my brother. All was well for a few years. Now my brother is insisting that I am not allowed to go on his land to get to my land. I realize now that it was a mistake to not have included this easement clause in the partition deed. There are adjacent farms owned by others. However, since we always used to go through my brother’s land to get my land when it was joint, I am thinking it is unfair of him to now ask me to stop going through his land to get to my land. I am wondering if there is a legal avenue for me to get the easement I need to get to my land and if one exists, the procedure to go about getting this legally. Thank you for any insights that anyone can provide.
Asked 3 years ago in Property Law
Religion: Hindu

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6 Answers

The property was partitioned but you can demand a right of way under the easement act. As the land is an agricultural land a way can be demanded and can be divided equally. You may transfer a portion of your land in lieu of way granted by your brother. In case he refuses you may file a case against him before the tehsildar.

Rahul Mishra
Advocate, Lucknow
14107 Answers
65 Consultations

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 brother  from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs .

Ajay Sethi
Advocate, Mumbai
97544 Answers
7892 Consultations

1. You have every right to pass through your brother's land to reach your land, as you are privileged to utilise easementary right.

2.  If it's not possible to achieve it through mutual discussion, send a legal notice to your brother to resolve the issue.

3.  Still if the problem persists, file a suit in the jurisdictional Civil Court to get an order in your favour.

Shashidhar S. Sastry
Advocate, Bangalore
5460 Answers
330 Consultations

Dear Sir,

1) As per Easements Act, 1882, Section 13 -- Easement - Easement of necessity is coextensive with land severed and would always run with land as an incident and would remain dormant whenever there is an alternative way and would come into play whenever an absolute necessity comes out.

If there is no other way to access your land, you can file for easement under the act.

2) The Courts are also vested with a discretion to withhold or grant an injunction, having regard to all the circumstances of the particular case before them, As you have reasonable cause that you brother will keep causing hinderance you should pray for injunction in you petition as well.

Thank you

Anik Miu
Advocate, Bangalore
10401 Answers
121 Consultations

- Since, your land is block from all sides by the land of your brother  and further he is creating trouble for using the same , such acts of deny to permit 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 farm from his  property.

.- under section 35 of the Indian Easement Act , you can obtain permanent injunction restraining your said brother from obstructing your right to access .

- Further, you can also challenge that partition of the farm land if it was not registered on this ground as well .

Mohammed Shahzad
Advocate, Delhi
14773 Answers
224 Consultations

Easements are nonpossessory interests in real property. More simply, an easement is the right to use another's property for a specific purpose. Rights-of-way are easements that specifically grant the holder the right to travel over another's property

An easement appurtenant is an easement that benefits one parcel of land, known as the dominant tenement, to the detriment of another parcel of land, known as the servient tenement.

Any substantial interference with a right of way is a nuisance in common law. The owner of the right (known as the “dominant” owner) can apply to court for an injunction and damages if the landowner (or “servient” owner) blocks it.

An implied easement may be created only when two parcels of land were at one time treated as a single tract, or owned by a common owner. Accordingly, easements appurtenant may arise by implication

An easement is implied by existing use if the easement is necessary for the use and enjoyment of one parcel of land, and the parties involved in dividing the tract into two parcels of land intended that the use continue after the division. An easement is implied by necessity when one parcel of land is sold, depriving the other parcel of access to a public road or utility.

You can file a suit for declaration and mandatory injunction restraining your brother the defendant from blocking your  easement rights for road access from your land through his land on the basis of the above contents

T Kalaiselvan
Advocate, Vellore
87745 Answers
2358 Consultations

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