If before partition road was existed then you can claim for the road as its ancestral property and can apply for road as per The Indian Easements Act,
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Restoration of road through easement act on right of way
After the parents death a family of 5 members (2 brothers and 3 sisters) partitioned their agricultural land after executing a family settlement cum agreement on 15.11.2014 . A 12 feet road with a length of 240 metres has been in existence for several decades when it was a joint property. After division the entire road was passing through the younger brother’s land . Elder brother has to pass through that road to his farm land. Elder brother gave more than 1 acre of land to the younger brother towards road as a compensation. As a result elder brother got 7.38 acres and younger brother got 9 acres. Since that road was already existing, the road details were not mentioned in the family settlement. After division, the younger brother closed the existing road during October 2015 and provided an alternate road which passes through the lands of 4 different farmers without the consent of the elder brother, as he was away from the village since he was an employee. At the end of 2015, when the elder brother visited the village, he found that an alternate road was provided to reach his farm land. At that time the elder brother asked his younger brother to restore the then existing road and the younger brother readily agreed but not restored. Meanwhile, the younger brother died during March, 2016. Elder brother continued to use the alternate road. Recently there are disputes over the alternate road, as one of the farmer is making some objections. Elder brother wanted to restore the then existed road prior to 2016 but the younger brother’s family are objecting to it. They say that nothing is mentioned about road in the settlement agreement. Therefore they will not restore that road. There are several witness to the fact that the road existed as on 29.12.1994 because on that day the funeral procession passed through that road. Secondly, there are several witnesses to the fact that the father’s funeral procession had passed through the same road. Also the google images of that road as on 07.04.2014 and 30.10.2015 are also available. What are the options before the elder brother? Whether he can claim for the restoration of that old road that existed for more than 22 years prior to the division of joint property. Whether easement act for right of way is applicable in this case.
Asked 2 months ago in Property Law
Religion: Hindu
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4 Answers
If that road existed prior to the partition among the siblings but it was not mentioned in the family settlement deed, then it can be considered as an error.
The younger brother cannot allot pathway by including the neighbor's properties when his own property already had the pathway
If the elder brother is not having a proper access to road then it can be said that his easement rights have been deprived, he is entitled to easement rights.
He can file a suit for easement rights and mandatory injunction to remove the obstructions put up by his younger brother in the pathway that existed before the arrival of family settlement
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 family from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs .
- Since, the younger brother has already got 9 acres land i.e. extra 1 acre land from the elder brother towards the road compensation , then the younger brother cannot change any alteration in the land without taking the consent of elder brother.
- Further, as the said land was using since long period of 22 years , then even the elder brother has right to use the same on adverse possession as well.
- The elder brother can send a legal notice to the younger brother for getting the same , and on refusal he can file a suit under the Easement Act before the Court.
