Right of Way

What is Right of Way?

A **right of way** is a legal right that permits a person to pass through or over land belonging to another person. It is one of the most common forms of **easement** recognised under Indian law. The person holding this right does not own the land they pass through — they merely have the right to use a defined path for the purpose of accessing their own property or a public road.

Right of way is an incorporeal right attached to land. It benefits the owner of the dominant property (the land that needs access) and burdens the owner of the servient property (the land over which the passage runs). This right is essential in a country like India where many plots are landlocked and access to public roads often depends on crossing neighbouring land.

Legal Framework

The right of way is primarily governed by the **Indian Easements Act, 1882**.

Key Legal Provisions

- **Section 4 of the Easements Act:** Defines an easement as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon certain other land. A right of way falls squarely within this definition.

- **Section 13:** Prescribes the modes of acquiring easements — by grant (express or implied) or by prescription (long, uninterrupted use).

- **Section 15:** An easement by prescription is acquired by the peaceful and open enjoyment of the right for **twenty years** without interruption. For government land, the period is thirty years.

- **Section 13(b):** An easement of necessity arises when the dominant property is landlocked and there is no other means of access to a public road.

- **Section 37:** Easements may be extinguished when the dominant and servient tenements merge in one owner, when the easement is released, or when it is not exercised for the prescribed period.

Types of Right of Way

1. **Express grant:** Created by a written deed or agreement between the parties, often registered under the Registration Act, 1908.

2. **Implied grant:** Arises from the circumstances of a transaction — for example, when a seller sells a plot that is landlocked, the buyer gets an implied right of way over the seller's remaining land.

3. **Easement of necessity:** Recognised when a property has absolutely no access to a public road and the right is essential for the beneficial use of the property.

4. **Prescriptive right of way:** Acquired through open, continuous, and uninterrupted use for twenty years (Section 15). The use must be "as of right" — not by force, secrecy, or permission.

5. **Customary right of way:** Arises from long-standing local custom in a particular locality.

When Does This Term Matter?

Property Purchase and Due Diligence

Before purchasing any property — particularly agricultural land, plots in semi-urban areas, or land in older parts of cities — it is critical to verify that the property has lawful access to a public road. A landlocked property without a right of way can be virtually unusable and significantly diminished in value.

Disputes Between Neighbours

Right of way disputes are among the most common property litigation matters in Indian courts. Disputes typically arise when a servient owner blocks the pathway, constructs over it, or denies access. The dominant owner may file a suit for declaration and injunction to establish and protect the right of way.

Landmark Cases

- **T. Arivandandam v. T.V. Satyapal (1977):** The Supreme Court emphasised that courts must examine the factual basis of easement claims and reject frivolous suits.

- **Santhosh Kumar v. Joseph (2012):** The Kerala High Court held that once a prescriptive right of way is established by twenty years of use, it cannot be defeated by subsequent changes in ownership.

- **Babu Lal v. Hazari Lal (AIR 1982 SC 818):** The Supreme Court recognised easement of necessity where a property had no other access to a public road.

Government Acquisition and Development Projects

Right of way also matters in government land acquisition, highway construction, and infrastructure projects. Existing easements must be considered during acquisition, and compensation may be payable for extinguishment of such rights.

Practical Significance

- **Title verification:** Buyers must check for existing rights of way burdening the property they intend to purchase. Revenue records, survey maps, and local inquiry help establish this.

- **Registration:** While prescriptive rights need not be registered, expressly granted rights of way should be registered if the dominant and servient tenements are clearly identified.

- **Width and location:** The width and specific location of the right of way may be fixed by grant, custom, or court decree. Courts consider the reasonable needs of the dominant owner.

- **Cannot be expanded unilaterally:** The holder of a right of way cannot widen or alter the path without the servient owner's consent unless a court permits it.

- **Transferable with land:** The right of way is attached to the land, not the person. It passes automatically with the transfer of the dominant property.

Frequently Asked Questions

How can a right of way be acquired over someone else's land?

A right of way can be acquired through an express grant (written deed), an implied grant (arising from circumstances of a sale), prescription (twenty years of continuous and open use as of right), or necessity (when the property is landlocked with no alternative access to a public road).

Can a right of way be lost or extinguished?

Yes. A right of way can be extinguished by release (the dominant owner gives it up), merger (both properties come under one owner), non-use for twenty years, or destruction of the servient tenement. A court decree can also extinguish it in appropriate cases.

What legal remedy is available if someone blocks my right of way?

You can file a civil suit for declaration of the right of way along with a permanent injunction restraining the servient owner from obstructing the passage. In urgent cases, you may also seek a temporary injunction under Order XXXIX of the Code of Civil Procedure. If the obstruction is recent, a suit for restoration of possession of the easement may be filed under Section 27 of the Specific Relief Act, 1963.