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Chheddu Singh Vs. Kewal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1614 of 1954
Judge
Reported inAIR1963All122
ActsEasements Act, 1882 - Sections 4; Specific Relief Act, 1877 - Sections 56
AppellantChheddu Singh
RespondentKewal and ors.
Appellant AdvocateP.N. Bakshi, Adv.
Respondent AdvocateS.P. Kumar, Adv.
DispositionAppeal dismissed
Excerpt:
.....100 of code of civil procedure, 1908 - whether drawing of water from another person's land create right of easement and if high court has jurisdiction to interfere with any fact established by trial court - right of easement not established - high court has no jurisdiction to look into any established fact looked into by trial court. - - 1. this is a plaintiff's second appealagainst the concurrent decisions of the courts below dismissing his suit for a mandatory injunction requiring thedefendants clean and open up a well on their own landso that the plaintiff can take water for the irrigation ofhis fields. he alleged that he had been using this well for wateringhis fields for a long time, but the defendants recently hadfilled it up with earth and thus deprived him of its use. they..........landso that the plaintiff can take water for the irrigation ofhis fields. the plaintiff claimed a right of easement.he alleged that he had been using this well for wateringhis fields for a long time, but the defendants recently hadfilled it up with earth and thus deprived him of its use.the defendants contested the suit and denied that the plaintiff had any right of easement. they admitted that theplaintiff had been permitted to draw water from this wellupto 15 years prior to the suit, but the well had beenabandoned, fallen into decay, and had dried up. theyalso alleged that the suit was mala fide and that the plaintiff had filed it not because he needed the water butto feed his grudge against the defendants with whom hewas on bad terms. 2. the trial court did not give any finding that.....
Judgment:

S.S. Dhavan, J.

1. This is a plaintiff's second appealagainst the concurrent decisions of the courts below dismissing his suit for a mandatory injunction requiring thedefendants clean and open up a well on their own landso that the plaintiff can take water for the irrigation ofhis fields. The plaintiff claimed a right of easement.He alleged that he had been using this well for wateringhis fields for a long time, but the defendants recently hadfilled it up with earth and thus deprived him of its use.The defendants contested the suit and denied that the plaintiff had any right of easement. They admitted that theplaintiff had been permitted to draw water from this wellupto 15 years prior to the suit, but the well had beenabandoned, fallen into decay, and had dried up. Theyalso alleged that the suit was mala fide and that the plaintiff had filed it not because he needed the water butto feed his grudge against the defendants with whom hewas on bad terms.

2. The trial court did not give any finding that the plaintiff had established a continuous right to draw water from the well over 20 years but preferred to dismiss this claim under Expl. II to Section 15 of the Easements Act. It found that the well had fallen into decay and the plaintiff not having objected to this must be deemed to have acquiesced in the obstruction placed against the enjoyment of his right. Accordingly it dismissed the suit. In appeal the learned Civil Judge of Aligarh assumed, for reasons which are inadequate, that there was little controversy over the plaintiffs easementary right but that he must be deemed to have abandoned it when he took no action after the well had fallen into decay. He dismissed the appeal of the plaintiff who has now come to this Court in second appeal.

3. I have heard Mr. P. N. Bakshi, learned counsel for the appellant at considerable length, but I am of the opinion that the plaintiff is not entitled to any relief. Both the courts have found that after the well had fallen into decay, the plaintiff did nothing for at least 3 years. This alone shows that the plaintiff's allegation that he needs the water from this well for irrigating his fields is incorrect. It is inconceivable that a cultivator deprived of the source of his water supply would sit still for three seasons. It is notorious that water is one of the most fruitful causes of quarrels between villagers, but in this case the plaintiff wants the court to believe that the opening up of this well is vital for his needs though he had no use for it for the last three years. The courts were right in believing that the plaintiff slept over his rights, if any, because he had other sources of water supply including the village tube well constructed by the Government. The relief of mandatory injunction is discretionary and cannot be granted if the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court -- Section 56(j) of the Specific Relief Act. I think the plaintiff's conduct disentitles him to any relief. Mr. P. N. Bakshi was unable to give any explanation why the plaintiff had taken no steps to have the well reopened or had not filed, this suit three years ago.

4. Furthermore, I am very doubtful whether the plaintiff has established his right of easement. All that he has proved is that he has been drawing water from a well which did not belong to him. The mere fact that one person draws water from a well situate on another person's land does not create an easement. Under Indian social conditions a person owning a well is deemed to be under a moral or pious obligation to allow the poor or less fortunate inhabitants of the locality to draw water from his well. In almost every street in India the rich man's well is used by his poor neighbours for drawing water. I do not think that the law of easement was intended to disturb this excellent social custom by giving the drawer of water from another persons' well right of easement. In my opinion, the presumption in view of social conditions should be that the right in all such cases is permissive and does not create an easement. The law of easement must be interpreted in the light of Indian Social conditions.

5. The appeal fails and the decree of the courts below is confirmed. The plaintiff shall pay the costs of the respondents in all courts.


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