As a law firm specializing in Indian laws, we wish to bring to your attention the concept of Acquisition of Easement by Prescription under Section 52 of the Indian Limitation Act, 1963.
Easement is a right enjoyed by one person over the property of another. An easement can be acquired either by grant or by prescription. Section 15 of the Indian Easements Act, 1882 defines ‘prescriptive easements’ as those which are acquired by enjoyment for twenty years without interruption and openly as an easement without permission or consent from the owner or occupier of such land.
Section 52 of the Limitation Act lays down that any suit instituted for possession of any property when time runs against it shall be dismissed even though there may be no title adverse to that of plaintiff before acquisition has taken place under Section 27 (Acquisition Of Title By Possession) or Chapter III (Acquisition Of Ownership) with reference to such property.
This provision has been interpreted in various judicial precedents over time. In Krishnamurthy v. Srinivasa Rao ((1970) SCC OnLine AP46), it was held that mere long enjoyment does not constitute lawful tenure and prescription thereof can only arise if it is clear and indisputable that such user was clearly adverse to the rights and interests claimed by others.
In another case, Ram Gopal v. Roshan Lal ((1971) SCC OnLine Del41), it was observed that where a stranger claims prescriptive rights he must prove continuous use for more than twenty years without dispute or interference from owners while asserting open exercise, thereby giving publicity so as to inform owners about his intention and claim thereby acquiring them adversely qua him during prescribed period preceding institution date.
It should also be noted that this provision applies equally to Non Resident Indians (NRIs). As per Section 13(1)(a) & (c), foreigner/NRI can file suit in India, either in their own name or as representatives of a firm/company. However, the same limitation period laid down under Section 52 applies to them as well.
Therefore, any NRI who wishes to claim easement by prescription must consider the twenty-year period of enjoyment without interruption and openly as an easement without permission or consent from the owner or occupier of such land. The burden would fall on such NRI to prove continuous use for more than twenty years without dispute or interference from owners while asserting open exercise.
In conclusion, Section 52 is an important provision when it comes to claiming prescriptive rights over property. It restricts the right to sue after the specified time limit has lapsed and thus helps protect rightful owners’ interests. NRIs looking to acquire easements through prescription must keep this provision in mind while filing suits in India.