More than 60 years we are using a pathway which is belong to my neighbor, this is the only way to our land. On 1986 UDR survey the pathway is subdivided as pathway.but now the land owner object us to use the pathway. What can I do.
There are plenty of settled cases in your favor and supporting your case.
A right of way easement dates back to common law principles of the right to the free flow of water, and for allowing neighboring landowners the ability to travel over another's property. A right of way is a type of easement that allows a person to pass through another's land. Typically, a right of way easement is a roadway or pathway for travel through another's property that benefits a particular person or benefits another parcel of land. This type of easement allows reasonable use for the passage and right of travel to the person holding it, or for the land whose benefit the right of way easement was established. The owner of the land keeps the benefits and privileges of ownership as specified in the easement. Although ownership rights of property are lessened by an easement, society at large benefits from the additional freedom of movement.
A supreme court judgment in this regard will be a helpful reference to you, the judgement is in Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors on 5 January, 2010;
The gist of the said judgement is given below for your information:
After the parties adduced evidence in support of their respective cases and after hearing the parties, the IInd Additional Munsif, Trivandrum decreed the suit for declaration of easement right and for injunction filed by the original plaintiff (since deceased), holding inter alia that :- The court noted that the plaintiff had claimed easement of necessity as well as easement of grant. According to the plaintiff, during the lifetime of Yogini Amma itself, `B' schedule pathway had been given to him as an easement of grant, which had been in use from those days and even prior to the execution of the settlement deed. The deed does not refer to the existence of `B' schedule pathway for the plaintiff to access `A' schedule property. The defendants had alleged the existence of two alternative pathways leading to the `A' schedule property. However, the same was denied by the sole witness produced by the original plaintiff (since deceased). The defendants could not lead any evidence to substantiate their claim that these pathways provide access to `A' schedule property. In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A' schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. According to the plaintiff, he had been residing in the building on `A' schedule property and had been using `B' schedule pathway from the year 1940. A trace of this pathway could be presumed to be in existence from the time when the Ashramam acquired the properties. As per the deed of settlement, there is a separation of tenements. At the time of its execution itself, the plaintiff could have had access to `A' schedule property only through `B' schedule pathway. As `B' schedule pathway was required for the reasonable and convenient use of the plaintiff's property and that on severance of the tenements, plaintiff can be presumed to have got a right over `B' schedule pathway by an implied grant and also an easement of necessity. It is not on record that either Yogini Amma, or the defendants themselves until 1982 had obstructed this use of pathway. There is no reason to disbelieve the plaintiff's version that Yogini Amma had given `B' schedule pathway as grant for his use as he was a close relative of the former. There is an apparent and continuous use which is necessary for the enjoyment of the `A' schedule property within the meaning of Section 13(b) of the Indian Easements Act, 1882, and, therefore, the plaintiff is entitled to easement right in respect of the pathway. The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
13.On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff's claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B' schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A' schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B' schedule pathway. An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar's Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B' schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.
You may file a suit for easement rights and also mandatory injunction.
