The Easement Claim and the Missing Mutation

Under the Easements Act 1882, an easement by prescription arises where a right is acquired by peaceful, open and continuous enjoyment for twenty years without interruption, and the enjoyment must be as of right (section 15). The claimant must show:

1. Continuous and open use for at least 20 years;
2. Peaceful enjoyment, without interruption;
3. Use as of right, i.e. without permission, force or secrecy;
4. The right is necessary for the enjoyment of the dominant heritage (or otherwise qualifies under the Act).

Hasina's 22 years of use, testified to by villagers, supports continuity and openness. The absence of a mention in her title deed is not fatal: a prescriptive easement is acquired by operation of law, not by grant, so the deed need not record it. The khatian showing the path as part of Rafiq's plot is also not fatal, because the khatian records ownership, not easementary rights.

Rafiq's strongest defence is (i) permissive use. If the use was permissive, it is not 'as of right'. However, the oral permission in 2005 was to Hasina's father, and there is no evidence it was communicated to Hasina or continued. Permission must be contemporaneous with the use and must be communicated to the user. A vague statement 'for the time being' may not be sufficient to convert 22 years of open use into permissive use. The burden is on Rafiq to prove permission. If he cannot, Hasina's claim is strong.

Reliefs:

1. Declaration that she has an easementary right of way over the path.
2. Permanent injunction restraining Rafiq from obstructing the path, and an order to remove the wall.
3. Mandatory injunction for removal of the obstruction, if the court considers it necessary.
4. Damages for any loss suffered during the obstruction, if claimed.

The court will balance the parties' interests. It will consider:

• Whether the path is the only practical access to Hasina's land (necessity strengthens her claim);
• The width and route of the path, and whether it can be defined so as to minimise the burden on Rafiq's land;
• Whether Rafiq can be compensated for the burden, though easements are not ordinarily compensated;
• Whether the obstruction causes irreparable harm to Hasina, which favours an injunction.

The court may grant the declaration and injunction but define the path precisely, and may allow Rafiq reasonable time to remove the wall. If the court finds the use was permissive, it may still grant a licence (which is not an easement) or grant relief on equitable grounds, but a licence is revocable and does not bind successors. Hasina should therefore plead prescription primarily and necessity in the alternative.

The doctrine of lost grant is a presumption that, where a right has been enjoyed for a long period (usually 20 years or more), the court may presume that it originated in a lawful grant that has since been lost. It supplements prescription: instead of proving statutory prescription, the claimant may rely on long enjoyment to raise a presumption of a lost grant.

The effect on Hasina's claim:

• It shifts the evidential burden to Rafiq to rebut the presumption. Once Hasina proves long, open and continuous use, the court may presume a lost grant, and Rafiq must show that the use was permissive or otherwise not referable to a grant.
• It is particularly useful where the 20-year period is established but the precise origin of the right is unknown.
• It does not, however, override the requirement that the use be 'as of right'. If Rafiq proves permission, the presumption is rebutted.

Hasina should plead both prescription under section 15 and the lost-grant doctrine in the alternative. The villagers' testimony supports the presumption. The court will then require Rafiq to produce evidence of permission, and his vague 2005 statement may be insufficient. The combination of prescription and lost grant makes Hasina's case stronger than either doctrine alone.