Section 35 and 25 of the Limitation Act contain the law for the acquisition of the easement by prescriptions and are applicable to places to which the Indian Easements Act does not apply (e.g., Madras, C.P., Coorg, Bombay and U.P.).
Section 25 and 26 enact that where an easement has been peaceable and openly enjoyed by any person claiming title thereto, as an easement and of right, interruptions for a period of twenty years, the right to easement shall be absolute and indefeasible.
The period of 20 years required for creating a right of easement shall be taken to be a period ending within 2 years next before the institution of the suit, wherein the claim to which such period relates is contested. A title to easement is not complete merely upon the effusion of the period of 20 years.
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ADVERTISEMENTS:
However long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit and until it is so brought in” question the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on must be an enjoyment for 20 years and this period of 20 year’s enjoyment must end within two years before the institution of the suit.
Although an easement may have been enjoyed for years, and thus the right has become indefeasible by prescription, if its enjoyment has been foregone for a period of 2 years before the institution of the suit, the suit will fail.
An easement by prescription may be acquired against the Government by thirty year’s enjoyment.