(1) This appeal raises an interesting question of law. The respondent herein obtained a decree against the appellant's vendor for an injunction restraining him from interfering with her right to drain off water through his lands. The appellant purchaed the property after the passing of the decree.
Two questions are raised by Sri B. V. Ramanarasu the learned Advocate for the appellant; (i) that the decree for injunction passed as against the vendor, being personal, cannot be enforced against her; (ii) that both the Courts below erred in holding that the terms of S. 52, Transfer of Property Act apply and that his client is not affected by lis pendens.
(2) In support of his first contention, he relied upon the decision in -- 'Dahyabhai v. Bapalal', 26 Bom 140 (A), Jenkins C. J. in delivering the judgment of the Bench held that the purchaser of the land in execution of a decree was not bound on the ground that the injunction does not run with the land and the decision in -- 'Attorney General v. Brimingham, Tame and Rea District Drainage Board', (1881) 17 ch D 685 (B) was relied on by him. Jessel M. R., held therein that the new Board was not bound by the injunction issued against the previous Board and observed as follows:
'It is an injunction merely against the Council, their owrkmen and agents, and cannot be said to run with the land. If they have sold the property to somebody else, there is no injunction against the new owner, and nobody ever heard in such a case of the new owner or purchaser of land being liable to the former decree.
If he continues the business or commits a him, and that is all;; be has nothing to do with theformer proceedings, and I cannot see any groiund whatever for supposing that he can be bound by that decree, not, I believe, was such a thing ever heard of before.'
In Halsbury, Vol. 18 at page 4, relying on this decision, the following passage occurs, namely:
'An injunction being personal does not run with the land.'
I am, therefore, of opinion that the injunction decree will not be binding unless the terms of S. 52, Transfer of Property Act apply to this case.
(3) Section 52, Transfer of Property Act runs, in the following terms:
'During the pendency in any Court having authority in the Union of India, or established beyond the limit of the Union of India by the Central Government of any suit of proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the auhority of Court on such terms as it may impose.'
The main contention of the learned Advocate for the appellant is that the suit or proceeding instituted by the respondent does not relate to a right to immovable property within the meaning of S. 52, and that he is not bound though the property was transferred to him by the judgment-debtor. The right which was litigated in the suit was, whether the respondent was entitled to a right of easement to discharge water from her land on to the land belonging to the appellant's vendor.
An easement is defined in s. 4, Easement Act (V of 1882) as being a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or prevent and to continue to prevent something being done, in or upon or in respect of, certain other land not his own. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof dominant owner, the land on which the liability is imposed is called the servient heritage.
Section 8 provides that an easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which theliability is to be imposed. Under S. 19 where the dominant heritage is teasnsferred or devolves, the transfer or devolution shall be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.
So, there can be no doubt that under the provisions of the Easements Act, an easement is a right or interest in immovable property.'
(4) The following passage in Gale on Easements is relevant for understanding the nature of an easement right and the passages are as follows:
'When once an easement is validly created it is annexed to land. The benefit of it passes with the dominant tenant and the burden of it passes with the servient tenant to every person into whose occupation the dominant and servient tenements respectively come.'
A licence is, on the other hand, distinguished as being personal to both grantor and grantee unless it is coupled with a grant. so, I do not agree with the contentions of the leanred Advocate for the appellant that the suit or proceeding did not relate to a right to immovable property within the meaning of S. 52, Transfer of Property Act. There is no force in the contention that as the right to immovable property was not transferred in his favour S. 52 does not apply.
What the Section states is that if the property is transferred or otherwise dealt with by any party to the suit or proceeding, he is bound by the suit or proceeding in which any right to immoveable property is directly or specifically in question. The righty of easement related to the property which was transferred to the appellant.
So, I agree with the Courts below that the terms of S. 52 of the Transfer of Property Act are attracted. In -- 'Krishnabai Pandurang v. Sawalaram Gangaram', AIR 1927 Bom 93 (C), an identical question arose for decision. It was held by their Lordships that, as the transfer was made during the pendency of the execution proceedings, the terms of S. 52 applied.
Though as pointed out by the learned Advocate for the appellant in -- Sakarla Jaswantrai v. v. Bai Parvatibai ', 26 Bom 283 (D) the earlier decision reported in 26 Bom 140 (A) was only distinguished on the ground that no question under S. 234 of the Code of 1882 corresponding to S. 50 of the present Code arose for decision in that case, still in my view, the decision in 26 Bom 140 (A) need not be followed as the question of Lis Pendens was neither argued nor discussed in that case.
As already stated the general proposition of law stated therein is no doubt correct.The decision in 26 Bom 283 (D) is not of any assistance in this case, as execution is not sought as against the legal representatives. I follow on the other hand the decision in AIR 1927 Bom 93 (C) and hold that the terms of S. 52, Transfer of Property Act, apply to this case.
If the appellant is bound by the terms of S. 52, Transfer of Property Act the only course is to execute the decree as against him and not to file a separate suit. The decision in -- 'Sadagopachari v. Krishnamachari', 12 Mad 356 (E) has no bearing on this case, as the question that arose for decision there was, whether a decree for injunction obtained against specific individuals impleaded as parties to the suit under O. 1, R. 8, could be enforced as against other individuals who are not parties eo nomine to the suit.
Even on that question, there is a difference of opinion and I do not think it is necessary for me to consider that matter in this case. That decision is no authority on the applicability of S. 52, Transfer of Property Act.
(5) In the result the Civil Miscellaneous Second Appeal fails and is dismissed with costs. No leave.
(6) Appeal dismissed.