1. These four Second Appeals arise from a suit for injunction mandatory and permanent with respect to a wall, passage and flow of water through a drain. Plaintiff is the owner of the building Municipal No. 2/25 and defendants who are two brothers own the property No. 2/24 to the east of the building in Chickpet Bangalore City. To the east of plaintiff's building and close to the wall there is a lane through which a drain is laid to serve as an outlet for all the refuse water of his house. For construction of two opposite rows of shops leaving some space between the two, after demolition of the existing shops at the southern end of No. 2/24 defendants obtained license from the City Corporation and for the purpose of the said construction girders are placed on the eastern wall of No. 2/25 causing some damage to it. The construction, if allowed to proceed, will lead to the disappearance of the existing drain and its being substituted by a new one in the passage provided for between the two rows of shops. The plaintiff, therefore, sought for permanent injunction to restrain defendants from interfering with his right of access to the common wall and of passage as heretofore, for mandatory injunction to pull down the construction, which obstructs plaintiff's right of access to the wall, flush and passage.
The trial Court held that the wall is common property, the western half belonging to the plaintiff and the eastern half to the defendants entitling them to rest the beams thereon but mandatory injunction was granted for plastering the wall and setting right the scratches or cracks caused by fixing the girders or otherwise. The lane in which the drain exists was held to be the exclusive property of the defendants but the plaintiff's right to let out the water--including that from the bath room and latrines of the building --through two definite apertures into the drain, was upheld. Shifting the drain from its present position was allowed since it would not affect the right of sewage or sullage from plaintiff's building. The claim of passage was limited to enable plaintiff to see that the wall was intact.
Both parties being dissatisfied appealed and in a judgment by which both appeals were disposed of, the learned Subordinate Judge confirmed the direction that defendants should plaster the wall except at three points where the R. C. C. beams are resting, allowed the claim to the flow of water from plaintiff's building to and in the drain as heretofore without restrictions for it of the particular apertures fixed by the trial Court and the claim that the drain should continue not merely as it is but also where it is. The finding as regards the wall was that half of it longitudinally exclusively belonged to the plaintiff and the other half to the defendants with a right of passage to the plaintiff to inspect the wall and the drain. Against this decision in the two appeals, there are second appeals by the plaintiff and two by the defendants, which may all be disposed of by a common judgment.
2. The question whether as held by the trial Court the wall is common property of plaintiff and defendants or whether as found by the Appellate Court, each is entitled to a half longitudinally is not material since in either case, the stability or preservation of the wall is necessary for both and neither can use the wall either as joint owner of the whole or full owner of the moiety in' such a way as to injure the rest of the wail or the structure supported by it. Sri Krishnamurthy on behalf of the plaintiff argued that the wall as a whole which is 641/2'x1'x3' as well as the drain must be treated as subject to joint ownership of the parties and the defendants cannot unilaterally interfere with either the wall or drain in any manner.
Reliance is placed for this on the document Exhibit C dated 11-10-1924 between the plaintiff's father and the predecessors in title of the defendants. There seem to have been disputes between the neighbouring owners even earlier about the wall and drain as seen from Ex. D a registered document of 6-1-1897. Though Ex. C is of later date, it cannot be deemed to be a new agreement in supersession of Ex. D, as urged for the plaintiff. Being unstamped and unregistered its utility to serve as a basis of the rights of parties is open to doubt and Ex. c cannot be read as being, repugnant to Ex. D. Exhibit C docs not refer to Ex. D at all and the mention of the wall as common or belonging to both in Exhibit C is not inconsistent with the recital in Ex. D that half of the wall longitudinally belongs to each as it implies that in relation to the whole both have equal rights. According to Ex. D cost of the creation of the wall was to be borne by plaintiff's father and the drain was provided by the defendants' predecessors in title. Exhibit C require that the cost for setting right the wall and improving the drain should be shared by the parties.
Reading the two what may be gathered is than both could have the use of the wall and the drain without disadvantage to either with joint liability for the proper upkeep of these. The wall is what is called a party-wall of the kind mentioned at page 428 in Gale on Easements denoting 'wall divided longitudinally into two portions each portion being subject to a cross easement in favour of the other'. The agreements entered into previously entitle the parties to have use of the wall and placing R. C. C. beams or girders to the extent of 8' on the wall as is found to be done by defendants cannot be said to be unauthorised. But the scratches or scooping caused in the process may, if not suitably covered up, weaken the wall and thereby the lateral support due to the plaintiff's building may be impaired. The wall seems to have been raised originally say the owners of plaintiff's building and even if Exs. D and C are construed as conferring on defendants full rights to a moiety of the wall they cannot deal with it in a manner which will endanger the plaintiff's, structure.
At page 396 of Gale's book on Easements it is stated;
'Where a man grants a divided moiety of an outside wall of his own house with the intention of making such wall a party-wall between his own house and an adjoining one to be built by the grantee the law implies the grant and reservation in favour of the grantor and grantee respectively of such easements as may be necessary to carry out what was the common intention of the parties with regard to the user of the wall varying with the particular circumstances of each case. Thus if for example it is within the contemplation of the parties that the grantee shall support the roof of the house he intends to build upon that moiety of the wall which is comprised in the grant the other moiety of the wall will be subject to an easement of lateral support for the benefit of the roof when erected, and similarly the grantee's moiety of the wall will pass to him subject to the easement of lateral support for the benefit of the grantor's roof if supported by his half of the wall.'
Exhibit D contemplates the wall being made useof for a first floor and it is already so made useof in plaintiff's building. The defendants toomay have similar use but it is in the interestsof both necessary that the wall on both sidesshould be in a safe and stable condition. There isno need, therefore, to interfere with the directionthat defendants should plaster the wall to causalthe scooping to disappear is justified.
3. The main grievance of defendants against the decision of the learned subordinate Judge is stated to be the prohibition imposed upon them to shift the drain by altering its situation. It is urged by Sri Nittoor Srinivasa Rao on their behalf that the proposed change does not in the least prejudice the plaintiff but without it defendants will suffer substantial loss and disadvantage inasmuch as a long strip of land has to be left vacant and they will be handicapped as compared with plaintiff in exercise of their rights over the party wall. Considered in the light of convenience and results of permitting or forbidding the diversion of the drain, the view of the learned Judge that the drain should continue as it exists does not seem to be reasonable. The property is situated in a busy commercial locality of the City where every inch of ground is of high value and if the drain has to remain where it is, the row of shops facing east as shown in the plan Ex. M approved by the Corporation cannot be constructed. When asked to explain as to how the plaintiff would be inconvenienced if the drain is shifted, Sri Krishnamurthy and the plaintiff did not allege anything in particular but it was contended to be opposed to law so as to make it obligatory on the defendants without regard to the considerations of convenience or hardship not to meddle with the existing condition.
Reliance for this was placed on Section 28(e) of ths Easements Act according to which the mode of enjoyment of a prescriptive right such as the one in dispute must be determined by the accustomed user of the right. This provision may be resorted to, as stated in the section itself, in the absence of evidence about probable intention of parties as regards mode of enjoyment and the purpose for which the right was imposed or acquired. This is not a case in which the mode of enjoyment needs to be determined only with reference to accustomed user as there is evidence of arrangement entered into by the parties twice in Exs. D and C to avoid disputes. The position of the drain is not prescribed in the documents but extension and improvement of the same may be effected by defendants with a condition that plaintiff has to contribute half the expenses for the same.
As pointed out for the defendants, the laws and rules of sanitation have rendered adherence to what was in vogue formerly impossible as the drain is not now open but underground and the waste water from plaintiffs building is thrown into the drain not exactly at points prescribed in Ex. D but at the end of the wall. The right which the plaintiff in view of this can be deemed to have is an outlet on defendant's land for the waste water of his house being conveyed to the municipal gutter and if that is safeguarded and sufficiently ensured the plaintiff can have no cause for complaint. The defendants without seeking as they are entitled to. under Ex. D any pay mm t from plaintiff undertake to facilitate the flow of water from the plaintiff's building to the public drain through the new one to be set up, as freely and uninterruptedly as in the existing one. This should be enough for protection of plaintiff's rights.
4. Even so Sri Krishnamurthy urged that the right of passage would be affected and these considerations cannot apply to it. In support of this he cited -- 'Dhundiraj Balkrishna v. Ramchandra Gangadhar'. AIR 1922 Rom 407 (A) in which it was held when a line of way was definitely set out neither the dominant nor the servient owner can compel the other to give or accept a different or substituted way. The present case is distinguishable as there is no defined right of way to be considered, Exs. C and D make no reference to it and approach to any particular spot or place as in that ease is not involved. Further the right is essentially one of observation and inspection of the drain and there will be no impediment to this as plaintiff has tor exercise of the right, only to turn his attention towards a slightly different direction. Tne principle enunciated in the said decision cannot be of any help to the plaintiff.
5. A case more in point is the one in -- 'Bala v. Moharu', 20 Bom 788 (B) where it was held that a right to have water carried away over the adjoining land doss not give its owner any power to prevent the erection of buildings on the adjoining ground as long as the arrangements necessary to the preservation of his right are made. Section 27, Easements Act enables the servient owner to
'use the servient heritage in any way consistent with the enjoyment of the easement not tending to restrict the easement or render its exercise less convenient.'
6. Enjoyment of the easement cannot be regarded as impaired by acts which are negligible and such as changes as a person of ordinary sense and temper will not mind. The considerations governing it are stated by Gale in his book of Easements at page 514 thus:
'It is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be a total obstruction of the easement. The injury complained of must, be of a substantial nature in the ordinary apprehension of mankind and not arising from the caprice or peculiar physical constitution of the party aggrieved.'
I do not think there is any justification for the plaintiff to feel aggrieved by the deviation of the drain. The direction in the decree of the learned Sub-Judge forbidding it is therefore set aside. With a view to prevent further dispute between the parties in modification of the decrees of the Courts below there will be a decree in the following terms.
(a) That defendants will at their own cost plaster the wall marked B C in the plan Ex. A;
(b) defendants will not prevent the flow of water from plaintiff's building through the existing drain till they construct a drain as shown in Ex. M and after such construction defendants may build on the exiting drain:
(c) The Wall B. C. is common property in these use that western half longitudinally belongs to the plaintiff and eastern half to defendants with rights to both to inspect each other's portion when necessary and obligation not to do anything which may prejudice right of lateral support each is entitled to;
(d) plaintiff has a right of passage to inspect the drain when there is need for it.
As in the Courts below, parties will bear their own costs in this Court.
7. Order accordingly.