Home General Law of prescription v. law of limitation

General

Law of prescription v. law of limitation

October 9, 2020

14925

Flawed Politics of Defection — Image source - https://bit.ly/3cB6RuJ

This article is written by Ayushi Mahajan, currently pursuing BBA.LL.B from Centre For Legal Studies, Gitarattan International Business School (Guru Gobind Singh Indraprastha University). This article talks about various aspects of the law of prescription and law of limitation and the difference between them.

Table of Contents

Introduction

In the context of law, prescription refers to one type of naturalness – the right to use the property of another. For this, the use of land for an appropriate statutory period has been open, continuous, exclusive and under a claim of right. The word limitation only tells the meaning. Its literal word limit means restrictions or rules or circumstances that are limited. The statute of limitation has been set as the time limit that is given to the aggrieved person for various suits through which the parties can approach the court for the redressal of justice.

Doctrine of prescription

What is an easement

A right is the right of an owner to own or occupy land which gives him the right of beneficial enjoyment on the land of another person which he does not have. Such a right is given to the owner of land so that he can fully enjoy his rights in his property. Therefore a real estate has certain rights which are associated with the enjoyment of another real estate without which the property cannot be easily and fully held and enjoyed. For example, in the right way, sunlight, water, sewage etc.

Acquisition of easements by prescription

Prescription shows the effect of time constraints on creating some new rights and then destroying the old rights. The term by prescription means that the acquisition of a title or a right by the owner of the property in the manner prescribed by law. A person can acquire property or certain rights over a property to show that he is in possession of the property or has been enjoying the rights for a long time.

Therefore, if there is a need to prove its title after prolonged, uninterrupted and continuous occupation or to exercise certain rights over real estate it will cause hardship and will cause injustice. The law, therefore, recognizes an easement by prescription.

Section 15 of the Indian Easement Act, 1882 talks about that in order to obtain a prescribed right of accessibility in relation to the use and use of light or air for a building or assistance from a person’s land it is enjoyed peacefully without any ease should go. Interruption for twenty years. No right of way or any other facility would have been enjoyed as peacefully and openly as a right without hindrance for twenty years.

Principle involved

The principle described in the prescription doctrine is that to give legal recognition to rights and the titles that have been long enjoyed. Even if the enjoyment of that such right or the title was wrong at the time of its establishment, the law uses to consider it expedient to not to disturb such kind of enjoyment. The law recognizes this right to prove that the origin of the title will cause unnecessary hardship to a person.

Illustration

The plaintiff demonstrates that he was enjoyed peacefully and openly for twenty years on the right. B, the defendant proves that A has admitted on one occasion during twenty years that the user was not right and asked him to enjoy his leave right. This lawsuit would be dismissed because the right did not enjoy the rights for such twenty years.

The doctrine of Lost Grant

The presumption included under this theory is that in the past there was a grant of authority but such a grant was lost. Thus such right is legally recognized and the Court has held that such acts were done and the circumstances that existed were necessary to create a valid title. The principle is used in cases where enjoyment cannot otherwise be properly enjoyed. In Dalton V. Angus (1881) 6 App Cas 740; 46 JP 132; 50 LJQB 689 the court observed that the doctrine of lost grants was invented as a means to an end. It can only be displaced by the presumption that it actually is and there was no such grant in the past. This principle can be leveraged to obtain an easement as a separate mode independently of the provisions of law.

Essentials of easement by prescription

Peaceably enjoyed

The Indulgence should be without any violence and that should not be subjected to the frequent quarrels or physical or any legal obstruction by the owner. No relaxation by the prescription can accrue under a non-peaceful enjoyment.

Openly enjoyed

The need for open enjoyment means that the dominant owner must either have actual knowledge of the practice of accessibility by the dominant master or possess the means of knowledge for which creative knowledge can be attributed to him.

As of Right

This expression means that the enjoyment of spontaneity should be without violence, without theft, and also without permission. This implies that rest should be enjoyed as a right.

Without interruption

Relaxation should be enjoyed without any hindrance which may have been caused by some kind of hindrance due to the function of the servant owner. As a result of such interruptions, the pleasure of easement must be effective. The principal owner must have notice of the obstruction and fact of that person in making or authorizing such an obstruction. It is not necessary that some oral or any written notice must be given by the servant owner to the principal owner.

For twenty years

An uninterrupted period of 20 years of only would establish an easement by prescription. The period of 20 years is extended to thirty years if the government gets the benefit of service. In Manikkan v. Kamala [AIR 1987 Ker. 72], the court held that if the branches of a tree dominate the neighbouring land, then no right can occupy the land which they lay hands on. The owner of such a tree does not acquire any rights over the neighbour’s land, simply because the tree branches are continuously spread over the neighbouring soil for a long period of time. No right can arise by prescription to continue the nuisance.

Rights that cannot be acquired by prescription

The following four rights under Section 17 cannot be acquired by prescription-

A right that leads to the total destruction of the subject of right, or property on which it was acquired, liability will be imposed

Right of free passage of light or air over open space on the ground

Surface water – no water that is flowing in a stream and not permanently collected in a pool, tank, or otherwise.

The right of underground water is not passing in the defined channel

Doctrine of limitation

The basic concept of limitation relates to fixing or setting time periods to prevent legal actions. As given in Section 2(j) of the Limitation Act, 1963, which talks about a period of limitation, it means the period of limitation prescribed for any appeal, appeal or application as per a schedule, and prescribed period which means the period of limitation The provisions of this Act have been calculated in accordance with.

The statute of the law indicates the withholding from the deadline for different legal actions that a victim may take against him or herself and seek trial or remedy or religion before the court. Where a suit is initiated after the boundary, it will fall prey to the statute of limitation. Protecting the lengthy process of punishing a person indirectly without a crime is the main and basic purpose of the statute of limitation.

As per the provisions provided under the Act, it is the litigation which is initiated, the appeal which is entertained and the request which is made after the specified period which will be dismissed even if the limitation is not as a defence be raised This is a case that is started when a complaint is lodged with an appropriate officer in a normal case and where the person is a pauper. In other circumstances, a lawsuit is initiated when a request for leave to file a suit as a purport is made and where the matters relating to the charges are against the company which is injured by a court where The applicant initially submitted his claim to the official liquidator. Where a claim is made as a set-off or counterclaim, it will be treated as separate litigation and in case of set-off, it will also be considered to start on the date on which the prerequisite to set off is laid down. . It can be said that in case of additional claim a suit will be held within the same date on which the counterclaim has been made. With this, a notice of motion in the High Court is requested when the application is made to the appropriate officer of that particular court.

The Limitation Act, 1963 does not affect the provisions provided under the Indian Contract Act, 1872. The Act has been made effective for the reason that it obliges the jurisdiction of the Court to entertain acts which are trivial and pending action by the complainants to avoid lengthy proceedings.

Salient features

The Limitation Act consists of 32 sections and 137 articles. The articles are divided into 10 parts. The first part deals with accounts, the second part deals with contracts, the third part deals with announcements, the fourth part deals with decrees and equipment, the fifth part deals with immovable property, the sixth part deals with movable property, the seventh part deals with tights. Relates, the eighth part relates to trust and trust property, the ninth part relates to miscellaneous matters and the last part relates to suits for which there is no set period.
The mortgage period is for a period of 60 years to 30 years, in the case of a suit for the arrest or recovery of the mortgaged immovable property, or in the case of a foreclosure or mortgage for a suit or on the Central Government or Jammu On behalf of any state government, including the state of Kashmir.
While a longer period of 12 years has been prescribed for various types of suits relating to real estate, trusts and settlements, a period of 3 years has been prescribed for suits related to accounts, contracts and declarations, suits relating to decree and instruments as well as suits related to movable property.
A period of 1 to 3 year has been prescribed separately for suits relating to trunks and miscellaneous matters and for suits for which the period of limitation is not provided for anywhere in the Schedule to the Act.
To avoid drawing on the suggestion made by the Third Report of the Law Commission on the Limitation Act of 190 as most of the illustrations given are unnecessary and often misleading. are doing..
According to Section 86 and Section 89 of the Code of Civil Procedure, consent of the Central Government is required before prosecuting foreign rulers, ambassadors and messengers. The Limitation Act, 1963 provides that when the time obtained for obtaining such consent shall be excluded for computing the limit for filing its suit.
The Limitation Act, 1963 shows with its new law, that it has not made any racial or class distinctions for both Hindu and Muslim laws, In the case of Syndicate Bank v. Prabha D. Naik [AIR 2001 SC 1968]

The Supreme Court observed that the statute of limitation under the Limitation Act, 1963 distinguishes any caste or class while enforcing or enacting any law. Special person.

Prescription and limitation: general differences

Both concepts represent the importance of the passage of time in legal relationships.

The recipe of action becomes a way of extinguishing the rights due to the inaction of the holder of that right. It requires admission:

The presence of an exercisable right by a person, either natural or legal person;

Lack of exercise from the person concerned and;

A succession of the prescribed time period prescribed by law.

Limitation occurs when either laws or individuals agree on a fixed timeframe for the duration of a right. Beyond that time, that right cannot be exercised.

BASIS OF DIFFERENCE	PRESCRIPTION	LIMITATION
EFFECT	Prescriptions extinguish the action, but not the right ones. The payment made when the right is determined is valid, but the right has not expired.	The limitation extinguishes both right and action. The payment made by the debtor when the threshold right has expired is unfair payment.
DEADLINE	Long, counted in years.	Short, Medium and Long.
INTERRUPTION	It can be interrupted by sending requests.	It cannot be interrupted.

Conclusion

Prescription and limit are unquestionably used in colloquial terms. However, in the legal world, the difference between the two concepts is indeed meaningful. Prescription: The statutory concept according to which the passage of time consolidates factual conditions. It permits the extinction of rights (extinction) or the acquisition of foreign property limitation: The omission of a right due to the passage of time given for its practice.