Section 26. Exclusion in favour of reversioner of servient tenement
Where any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interests or term resisted by the person entitled on such determination to the said land or water.
Exclusion in favour of Reversioner of Servient Tenement – Where any land or water upon, over of from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term, is to be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled on such determination to the said land or water.
The following illustration is appended to Sec. 27 of the previous Act (of 1908) which corresponds to the Sec. 26 of the present Act (of 1963).
Illustrations- A sues for a declaration that he is entitled to a right of way over B’s land. A proves that he has enjoyed the right for twenty-five years; but B shows that during ten of these years C, a Hindu widow, had a life-interest in the land, that on C’s death B became entitled to the land, and that within two years after C’s death, he contested A’s claim to the right. The suit must be dismissed, as A, with reference to the provision of this section has only proved enjoyment for fifteen years.
According to Sec. 26, the time during which an infant, an insane person or a married woman is the owner of the servient tenement, is excluded from the period during which a prescriptive right is in course of acquisition.
When the period of twenty years was running and the servient tenement was held by a limited owner having only a life-interest in it, Sec. 26 provides that the period during which the servient tenement has been held by a person with life-interest only, or with an interest limited only for a terms of years (exceeding three years), is to be excluded in reckoning the “twenty years” prescribed by Sec. 25 provided that the reversioner, within three years of his getting into the reversion, resists the claim to the easement.
When during the period of prescription the servient tenements has been held by:
a. A tenant for life, or
b. A lessee under a lease for a term, the term of which exceeded three years, and the claim is contested within three years from the determination of the interest of the life[1]tenant or the term of the lease, the period during which the servient tenement was held by the life-tenant or lessee is excluded in computing the period for 20 years.