Rights of passage: Easement laws and their eroding relevance in rural J&K

By Mohammad Amin Mir

In the rural landscape of Jammu & Kashmir, land is not just about  property, it is legacy, livelihood  and identity. As landholdings shrink and populations grow, conflicts over something as basic and essential as the right of way are becoming increasingly common. These disputes fall under the domain of easement laws, which, while sound on paper, are rapidly losing their force in practice.

Easements — legal rights that allow one landowner to use another’s land for a specific purpose — have long played a quiet but vital role in maintaining rural harmony. A footpath through a neighbour’s orchard, a water channel crossing someone’s paddy field, or a cart track meandering through a meadow—these informal liberties have been integral to Kashmir’s village life for generations.

But with rising land value, declining communal trust, and weak legal enforcement, these once-informal understandings are now flashpoints for both legal and social conflict.

Codified under The Indian Easements Act, 1882—applicable to Jammu & Kashmir post Article 370 abrogation—easements are defined as rights possessed for the beneficial enjoyment of land to do something, or to prevent something from being done, on another’s land. Easements can involve right of way, right to air and light, right to water, and right of support for structures. They may arise through express written grants, implied necessity, uninterrupted usage over 20 years (prescription), or local customs.

In rural J&K, most easements—especially right of way—stem from customary use and long-standing prescription. Rarely are they formalised through written agreements or court decrees.

Traditionally, such rights evolved organically. A farmer’s cart crossing a neighbour’s field, a family using a spring on adjacent land for generations, or irrigation water flowing through plots—all were part of lived experience. These were seldom questioned or recorded. During colonial-era settlements, the Wajib-ul-Arz documented village customs, including easement paths and water rights. But such records have since been neglected, and many current Jamabandis fail to reflect these rights.

The Patwari, Lumberdar, and Girdawar were once custodians of these customs. Their informal arbitration kept tensions in check. But as land administration became formalised and the credibility of revenue courts declined, these roles diminished. The result: an explosion of rural litigation over easement rights, especially in areas like Anantnag, Pulwama, Baramulla, and Rajouri.

Typical disputes include blocked footpaths, encroached cart tracks, and severed irrigation channels. In one case in Kurigam, Qazigund, two families clashed over a 5-foot-wide path historically used to reach fields. The landowner blocked access, citing absence of a written deed. Oral testimonies and decades of usage weren’t enough for the revenue officer to acknowledge the right. A civil suit was filed—but remains pending.

In another case near Sopore, a downstream landowner blocked a historic irrigation kul to divert water for private use. Despite protests and appeals to authorities, no administrative action followed. These stories echo across hundreds of villages, where informal easements are being ignored or denied, and local governance structures are unable to cope.

Jurisdictional confusion between departments—Revenue, Irrigation, and Rural Development—further paralyzes action. Revenue courts are overburdened and under-resourced. Vital documents such as tatima shajras (field sub-maps) are missing or outdated. Since most easements are unregistered, enforcing them depends on proving continuous use, necessity, or community recognition—difficult in the absence of supportive records.

Courts place the burden of proof on the claimant. But villagers rarely maintain documentation. Even mutation entries typically omit usage rights, as they record only ownership. When land changes hands, new owners often deny knowledge of any easement, leading to sudden blockages and disputes.

In theory, Panchayats can mediate such disputes. In practice, most lack legal knowledge or revenue training. Some are even accused of siding with influential landowners, eroding community trust in local dispute resolution.

Pilot efforts have been made. In Budgam and Kishtwar, Tehsildars were instructed to document easements during the Digital India Land Records Modernization Programme (DILRMP). But these practices are yet to become institutional. Mediation efforts through Alternative Dispute Resolution (ADR) or Lok Adalats remain ad hoc and lack easement-specific protocols.

Meanwhile, the digitization of Jamabandis and the rollout of cadastral mapping systems like BhuNaksha present a missed opportunity. While ownership boundaries are now mapped digitally, usage rights such as footpaths or water channels remain unmapped. There has been no large-scale effort to digitally document or vet such customary routes. The SVAMITVA scheme, which digitally maps village abadi areas, could be expanded to include easement overlays, but this requires political and policy will.

If easement rights are to survive in rural J&K, targeted reforms are necessary. Village-level surveys should be conducted to document right of way and irrigation channels, validated by community input and GPS tools. These must be integrated into revenue records—Girdawaris, Tatimas, and Jamabandis—with easement data tagged to both dominant and servient tenements.

A dedicated Easement Registry should be created at the tehsil level to allow voluntary registration of long-standing easements, backed by attestations from Panchayats or Lumberdars. Legal awareness campaigns must be launched to educate rural communities on their rights and processes for enforcement. Revenue courts should be strengthened with trained officers and fast-track mechanisms for essential access-related disputes.

Sale deeds and mutation records must mandatorily reflect known easements to prevent post-sale conflicts. The colonial-era practice of documenting village-level customs through the Wajib-ul-Arz should be revived and digitized.

Easement rights are not technical legalities—they are the arteries of rural life. Without assured access to one’s fields, water, or home, land ownership becomes a hollow promise. As these rights fade from memory, invisible walls rise between neighbours and communities.

Jammu & Kashmir must recognise this erosion not as a legal anomaly, but as a governance failure. In its race to modernise land records and revenue systems, it must not forget the simple footpaths and watercourses that have kept its villages functioning for centuries. The law may be from 1882, but the right to passage is timeless—and it must be safeguarded not just by courts and codes, but by our maps, our institutions, and our collective conscience.

Mohammad Amin Mir is a  columnist and specializes in land and governance issues in Jammu & Kashmir.