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Bhagwati Prasad and ors. Vs. Dwarika Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 888 of 1954
Judge
Reported inAIR1963All3
ActsEasements Act, 1882 - Sections 33
AppellantBhagwati Prasad and ors.
RespondentDwarika Prasad
Appellant AdvocateP.N. Bakshi, Adv.
Respondent AdvocateS. Sadiqali, Adv.
DispositionAppeal allowed
Excerpt:
.....- discharge of water into common drain through the defendant land - claimed right of easement - dirty water to flow through private land is injurious to public health - discharge should be directly in public drain - alternative remedy is available. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under..........civil judge of jaunpur restraining them from interfering with the plaintiff's right of discharging dirty water from his house to the defendant's and which is appurtenant to his house. the plaintiff alleged that he and another neighbour had been discharging water into the common drain which ran througn the defendant's land into another drain further away. he claimed a right of easement. the trial court disbelieved the plaintiff's version and held that there had never been any drain running through the defendant's land, and dismissed the suit. in appeal the appellate court took a different view of the evidence and held that the existence of the drain had been established and that the plaintiff had acquired a right of easement. he allowed the appeal and issued an injunction against the.....
Judgment:

S.S. Dhavan, J.

1. This is a defendant's second appeal against the decision of the learned Civil Judge of Jaunpur restraining them from interfering with the plaintiff's right of discharging dirty water from his house to the defendant's and which is appurtenant to his house. The plaintiff alleged that he and another neighbour had been discharging water into the common drain which ran througn the defendant's land into another drain further away. He claimed a right of easement. The trial court disbelieved the plaintiff's version and held that there had never been any drain running through the defendant's land, and dismissed the suit. In appeal the appellate court took a different view of the evidence and held that the existence of the drain had been established and that the plaintiff had acquired a right of easement. He allowed the appeal and issued an injunction against the defendants, who have now come to this Court En second appeal.

2. Mr. P. N. Bakshi, learned counsel for the appellants urged several points against the finding of the appellate court, but it is not necessary for me to consider any of them except one. He contended that this was not a fil case for the exercise of the discretionary power of the court in view of the fact that the plaintiff can discharge his dirty water into a public drain which is only 12 feel away from his house. He placed before me the report ofthe commissioner stating that beyond the houses of the parties there is a street and a nali (public drain). I do not see any reason why the plaintiff should not discharge his dirty water into a public drain. The Court wilt not assist him in exercising the right which will have the effect of dumping every kind of dirt into another man's land when he can, with a very slight effort and negligible expense discharge all his drainage water into a public lane. It will not bo in the interests of public health that dirty water from the dominant owner's house should flow through any private land when it can be discharged directly into a public drain. The Court has a discretion not to assist the dominant owner if tha exercise of the right will be injurious to the public interest and an equally convenient alternative, mods of enjoyment is'available.

3. I think the appellate court did not exercise its discretion correctly in this case. The appeal is allowed and the plaintiff's suit dismissed. But in view of the fact that the plaintiff established his right of easement -before the appellate court 1 direct the parties to bear their own costs throughout.


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