1. Plaintiff 1, Bhola Nath and his son Babu Earn, plaintiff 2, are the owners of a house in village Keli in Budaun District. Adjoining this house and to its north is a cattle shed or an enclosure for tying cattle owned by defendant 1 Pahalwan Singh and his two sons Gajju Singh and Arman Singh, defendants 2 and 3. For a long time past the water of plaintiffs' house had flown through a drain which passed through defendant's an closure on to public way. In the beginning of 1937 defendants closed this drain on their side of enclosure having put up a cattle trough over it and they stopped the flow of water from the plaintiffs' side of the house. As a result the plaintiffs brought a suit in the Court of the Munsif of Budaun against the defendants for opening up of the closed drain and for an injunction restraining the defendants from causing any obstruction to the flow of water from the plaintiffs' bouse and for Rs. 10 as damages caused to plaintiffs' wall by logging of water. The plaintiffs claimed that their water had flowed for over 20 years and that they had acquired an easement to flow water. The defendants denied this right. They asserted that the water of the plaintiffs' house had flowed on to the east and not to the north, and on this simple issue of fact the case was tried by the learned Munsif and he found that over 20 years' user was established but damage was not proved. He accordingly ordered the drain to be opened and granted the injunction prayed for. On appeal by the defendants the learned civil Judge dismissed the plaintiffs' claim. The learned Judge has affirmed the finding of the learned Munsif with regard to over 20 years' user but he has found that the plaintiffs according to their own and their witnesses' statement had some time about two years prior to suit put up a pipe on their well, which formerly was without a pipe and this putting up of the pipe would increase the burden of easement and amounts to a variation of easement and the plaintiffs are therefore not entitled to the reliefs claimed for.
2. In the trial Court no plea was raised by the defence to the effect that any substantial increase had been made by the plaintiffs in the burden of easement and no evidence was led on this topic and no finding was arrived at. The defendants appealed to the District Judge, and in the memorandum of appeal also no specific plea was taken on this point. It is true that in the map which was filed with the plaint and in the map which forms part of the decree in the suit a pipe is shown to have been fixed in the plaintiffs' house connected with the drain in dispute and the plaintiffs and one of their witnesses deposed at the trial that the pipe had been in existence for about two years, but it was not suggested in evidence that the fixing of the pipe would in any way increase the burden of easement and as I have said above the point was not investigated and no evidence was led. From the mere fact that the pipe had existed for two years the learned Judge has drawn the inference that the burden of easement would necessarily increase. His argument apparently is that where a pipe has been put on a well there would be greater drawing of water and consequently more water would flow in the drain and so the burden of easement would be increased. The plaintiffs have made this second appeal to this Court and they complain that the learned Judge has decided the case against them upon a new point and further he has decided a question of fact as a question of law. I feel that there is substance in this complaint.
3. Whether by fixing of pipe the burden would increase or not is a question of fact to be decided upon evidence in the case. It does not appear from the record what was the flow before and what has been the flow after the pipe was fixed on. From the fact that for two years prior to the suit the pipe had existed and no complaint was made by the defendants and from the fact that even at the trial the defendants did not raise the question of increase of burden an inference may well be drawn that there has been no substantial increase in the burden of easement. In some eases particularly if a small pipe is put up the flow of water may be regulated and may be a convenience to the servent tenement. In any case, from the mere fact that a pipe has existed for two years an inference could not be drawn as a matter of law that there has been so much increase in the burden of easement so as to destroy the easement. It is however not necessary to decide this point as Mr. Wahid Ahmad Khan who appears for the plaintiffs undertakes on behalf of his client to remove the pipe and to restore the easement to its original condition and he prays that an injunction may be granted to him subject to his removing the pipe and restoring the easement as it was before the pipe was fixed. This seems to me to be a reasonable request. I allow the appeal, by setting aside the decree of the lower appellate Court and restore that of the Court of first instance subject to this modification, that the plaintiffs undertake to remove the pipe within two months from today and in case if the pipe is not so removed the defendants will be entitled to have it removed by an application to that Court and through an officer of the Court and the plaintiffs will be responsible for costs of the removal of the pipe. The plaintiffs will have costs throughout up to this stage.