If you are stuck in such a situation, here is what to do. 🚧

In the quaint town of Virajpur, the Varma family had long owned an extensive land parcel, divided into several individual plots, each registered to different branches of the family. A crucial feature of this land was a common pathway winding through the compound, providing essential access to each plot. Recently, Mr. Rohan Varma, one of the co-owners, decided to sell his plot to the Gupta family, who were new to the area.

However, shortly after the sale, the Singh family, close relatives of the original Varmas, began asserting that the Gupta family could not use the common pathway. Their argument was that the pathway was ‘private land’ reserved exclusively for family members, and outsiders like the Guptas had no right to traverse it. They actively started restricting the new owners’ entry, citing this claim.

Mr. Rohan Varma’s legal counsel, Advocate Priya Sharma, had unequivocally confirmed that upon the sale of a plot, the right to use such common pathways automatically transfers to the new owner. This situation has left the Gupta family in a difficult position, questioning the legality of the relatives’ actions and their right to access their newly acquired property.

Advice in such cases 💡

This scenario typically involves the concept of ‘easements’ under Indian law. An easement is a right which the owner or occupier of a certain land (the dominant heritage) possesses 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, or in respect of, certain other land not his own (the servient heritage). In simpler terms, it’s a right to use someone else’s land for a specific purpose, like passage. When a property is sold, any existing easements attached to it, especially those essential for access, generally transfer with the property. Blocking such access can lead to legal consequences.

Applicable Sections of Law ⚖️

• The Indian Easements Act, 1882:
  • Section 13 (Easements of necessity and quasi-easements): This section is highly relevant. If the common pathway is the only means of access to the Gupta family’s plot, it could be considered an ‘easement of necessity’. This means the right to use the pathway is essential for the beneficial enjoyment of their property and arises by implication when the property is transferred.
  • Section 19 (Transfer of easement on transfer of dominant heritage): This section explicitly states that where the dominant heritage (the plot owned by the Gupta family) is transferred, the easement (the right to use the pathway) also transfers with it.
• Bharatiya Nyaya Sanhita (BNS), 2023:
  • While primarily a civil dispute, if the relatives physically prevent the Gupta family from using the pathway, it could potentially attract provisions like Section 199 (Wrongful Restraint). If the obstruction is severe and intended to cause annoyance or damage, a case of Section 330 (Criminal Trespass) might be argued, although this is less common for mere pathway disputes and usually applies if they enter the Guptas’ property or cause direct damage.
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: This procedural law outlines how complaints are filed and investigated, should any criminal element arise from the obstruction.

If you are the complainant 🗣️

If you are the original seller, like Mr. Rohan Varma, your role primarily ends with the successful transfer of the property and its associated rights. However, you can provide the new owners with all relevant documents and corroborate their claims if needed. Your lawyer’s confirmation is a strong point in their favour.

If you are the victim 🛡️

If you are the new owner, the Gupta family, here’s what you should do:

1. Issue a Legal Notice: Have your lawyer send a formal legal notice to the relatives, clearly stating your legal right to use the common pathway based on the sale deed and the Easements Act, and demanding that they cease their obstruction.
2. File a Civil Suit: If the legal notice doesn’t resolve the issue, you may need to file a civil suit in the competent court for a ‘Declaration’ (declaring your right to use the pathway) and a ‘Permanent Injunction’ (an order from the court restraining the relatives from obstructing your access). You can also seek an ‘Interim Injunction’ for immediate relief.
3. Document Everything: Keep a detailed record of all incidents of obstruction, including dates, times, names of people involved, and any threats or verbal abuse.
4. Police Complaint (if applicable): While primarily a civil matter, if there’s any physical assault, criminal intimidation, or active breach of peace, you can file a complaint with the local police under relevant sections of BNS. However, police often advise parties in such property disputes to approach civil courts.

How the police behave in such cases 👮

In cases involving property disputes over access, the police generally tend to be cautious. They primarily deal with criminal offenses and maintaining law and order. Unless there is a clear case of wrongful restraint (Section 199 BNS), criminal intimidation (Section 199 BNS), or a breach of public peace, they might advise the parties to seek remedies through civil courts. They are usually reluctant to intervene in what they perceive as a purely civil dispute over property rights, as determining such rights falls under the purview of civil courts. However, if the obstruction leads to a physical altercation or a threat to life, they will certainly intervene to prevent a breakdown of law and order.

FAQs people normally have 🤔

• Do common pathway usage rights automatically transfer to new owners? Yes, generally, if the pathway serves as an essential or established access point, the right to use it (easement) transfers with the property under the Indian Easements Act, 1882.
• Is it legal for family members to block access just because someone is an ‘outsider’? No, if an easement exists, the owner of the servient land (the pathway) cannot legally obstruct the owner of the dominant land (your plot) from using it, regardless of familial ties.
• What if the pathway isn’t explicitly mentioned in the sale deed as a common access? Even if not explicitly mentioned, if it’s the only or primary means of access, an easement of necessity or a quasi-easement can be implied by law.
• Can I use force to clear the obstruction? It is strongly advised against using force, as it can escalate the situation and lead to counter-complaints. Always pursue legal remedies.
• How can I prove my right to use the pathway? You can prove it through your sale deed, old property maps, local customs, and witness testimonies confirming the historical use of the pathway by all plot owners.

What evidence is required? 📝

• Sale Deed: Your property’s sale deed, which establishes your ownership.
• Property Documents: Any previous title deeds, partition deeds, or revenue records that might indicate the existence of common pathways or shared access.
• Site Plan/Layout Maps: Official or historical maps of the land parcel showing the common pathway.
• Photographs and Videos: Visual evidence of the obstruction, including dates and times.
• Witness Statements: Affidavits or testimonies from neighbours, previous owners, or local residents who can confirm the long-standing use of the pathway by all plot owners.
• Legal Notice Copies: Copies of any legal notices sent and their acknowledgments.
• Police Complaints (if any): Copies of any complaints filed with the police.

How long will the investigation take? ⏳

The timeline for resolving such disputes can vary significantly:

• Legal Notice: Typically a few days to a week for drafting and sending.
• Police Action (if applicable): If a criminal complaint is filed and police decide to intervene, an initial inquiry or action could be relatively quick (days to weeks), but a full criminal investigation could take longer.
• Civil Suit: This is the most common and often lengthy process. Obtaining an interim injunction might take a few weeks to a few months, depending on the court’s schedule and complexity. A full trial for a declaration and permanent injunction can take several months to several years, especially if appeals are filed.

Advocate Sudhir Rao, Supreme Court of India