Easement Rights To Be Retained After Division Of Property In A Partition Suit U/S 30 Of Easements Act: Andhra Pradesh High Court

Applying Section 30 of the Indian Easements Act, the Andhra Pradesh High Court recently ruled that parties are entitled to retain their easement rights including water or passage rights as possessed before division of properties for equitable distribution in a partition suit.

Justice T Mallikarjuna Rao added that recognition of the inherent easementary rights as previously enjoyed during property partition, is crucial for ensuring equitable distribution and optimal property utilization.

"For the reasonable enjoyment of the properties, the trial court should have acknowledged that all parties are entitled to their respective easementary rights, including water and passage rights, as they were enjoyed at the time of the partition of the properties. These rights are vital for the equitable distribution and utilization of the properties in question."

Brief Facts:

The plaintiff filed a suit for partition of plaint schedule properties. The preliminary decree was passed by the trial court to divide the property into three equal and equitable shares and to allot one such share to the plaintiff. Subsequently, the defendants filed a petition in suit with a request to pass a final decree for partition of plaint schedule properties. An Advocate Commissioner was appointed to divide the properties as per decree terms.

After considering the report of the Advocate Commissioner, the trial court allowed the petition and passed the final decree for division of item nos. 4 to 8 and 10 of the plaint schedule properties intro three equal shares.

Aggrieved by the Final Decree, the appellant/plaintiff preferred the appeal questioning the correctness of the Final Decree. The main objection of the Appellant/Plaintiff was that the Advocate Commissioner mechanically divided the properties without considering important factors such as water rights, easement rights and passage rights which are crucial for agricultural operations.

Ruling of the Court:

The Court referred to Section 30 of the Indian Easements Act, 1882 as under:

30. Partition of dominant heritage: Where a dominant heritage is divided between two or more persons, the easement becomes annexed to each of the shares, but not to increase substantially the burden on the servient heritage.

Illustration (a) A house to which a right of way by a particular path is annexed is divided into two parts, one of which is granted to A, the other to B. Each is entitled, in respect of his part, to a right of way by the same path. ….

The court relying on Section 30 of the Easement Act ruled that the Trial Court failed to address the appellant’s objection concerning water rights and passage rights essential for enjoyment of properties.

“Upon a thorough examination of the Commissioner’s report and the impugned order passed by the trial court, it becomes apparent that the report did not mention anything about water, easement rights, or passage rights. Furthermore, the plan submitted by the Commissioner also lacks any reference to these rights.”

The Trial court ought to have acknowledged that all parties are entitled to their respective easement rights as they were enjoyed at the time of partition of properties. The court held that these rights are important for equitable distribution and utilization of properties.

The appeal was allowed in part holding that both parties shall retain their respective easementary rights including water and passage rights as possessed before the division of properties.

Case Title: Veera Venakata Satyanarayana v. Gollapalli Devadasu

Citation: 2023 LiveLaw (AP) 47

Click Here To Read/Download Order