M.P. Mehrotra, J.
1. This is the defendant's second appeal. Both the courts below have decreed the plaintiff's suit.
2. The brief facts are these: The plaintiff prayed for the removal of two disputed walls marked by letters AB end CD and the 'chappar' marked by letters ABCD in the sketch map given at the foot of the plaint. The house of the plaintiff is in the south of the house of the defendant and a 'gali' intervenes between these two houses. Both these houses have their main doors towards the east and they are situated in village abadi. According to the plaintiff, the disputed land ABCD was used as passage for a fairly long time. It is further alleged in the plaint that the nabdan which emanates from the northern wall of the plaintiff's house passed through the disputed land and water used to flow through the land in dispute. The plaintiff claims to have prescribed for a right of easements of passage and of flowing water through the land ABCD. The defendants are said to have raised walls AB and CD on the northern and southern end of the land in suit and are said to have placed 'chhappar' thereon and thereby caused obstruction in the plaintiff's aforesaid rights of passage and of flowing water. The defendants denied the rights claimed by the plaintiff and averred that the land in suit had been in their user and possession as sehan and belonged to them. It was further asserted that the disputed land had always remained covered by 'chappar'. The plea that the suit was hit by limitation was also raised in defence. The two courts below have accepted the plaintiff's version and have therefore, decreed the suit. It has been held by the said courts that the disputed walls AB and CD were put up shortly before the institution of the suit and so also the chappar. The said courts also held that the plaintiff had successfully proved his claim to have acquired the easementary right of passage and of flowing water over the disputed land. The defendants' ownership of the disputed land was accepted by the courts below. However, in view of the plaintiff's easementary rights of passage and of flowing water over the disputed land, it was held that the defendants were not entitled to put up the walls and the 'chappar'. Hence the suit was decreed for the removal of the disputed constructions as shown in the map (paper No. 22A-2) which was made a part of the decree.
3. The learned counsel for the appellant has raised the following con-tentions in support of the appeal:--
1. In the circumstances of the case, the plaintiff respondent could not acquire by prescription a right to flow water over the passage ABCD and Section 17(c) of the Indian Easements Act stood in the way of the plaintiff-respondent.
2. The rights which have been claimed by the plaintiff could not be acquired as easementary rights by prescription because they were not apparent and continuous.
3. The plaintiff-respondent failed to prove that he acquired the easementary right of passage and the right to flow water within the requirement of law as laid down in Section 15 of the Indian Easements Act.
4. Even if the plaintiff-respondent acquired easementary rights claimed by him, in view of Section 4(b) of the Village Abadi Act the defendant's constructions cannot be demolished.
5. Even if the plaintiff-respondent- acquired the easementary rights claimed by him still it was not necessary their the entire constructions should be removed and only so much of such constructions should have been directed to be removed as were necessary to enable the plaintiff-respondent to enjoy the easementary rights claimed by him.
4. Let us examine these contentions in seriatim.
5. So far as the first contention is concerned, the learned counsel for the appellant placed reliance on the following cases:
1. Manturabai v. Ithal Chiman (AIR 1954 Nag 108).
2. Dhanna v. Makhan Das .
6. Section 17(c) of the Easements Act lays down as under:
'17. Easements acquired under Section 15 are said to be acquired by pres-cription, and are called prescriptive rights.
None of the following rights can be so acquired
(c) a right to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise.
7. The learned counsel's contention is that there is no well denned stream or channel over the land ABCD through which the water flowing from the Nabdan in the plaintiff's house is to pass. Therefore, the plaintiff-respondent could not acquire a prescriptive right for flowing water under Section 15. This contention was not canvassed in the courts below and it cannot be said that it is a pure question of law which is being raised by the learned counsel. In Dhanna's case (supra), which has been relied upon by the learned counsel, it has been laid down:
'It may be observed that in each case the question whether or not particular water is surface-water is one of fact to be determined by the circumstances pertaining to its origin and continued existence.'
Moreover, I do not think that in the facts of the case it can be said to be a case covered under Clause (c) of Section 17 of the Indian Easements Act. The Nabdan is undoubtedly defined and water flows from Nabdan and then passes over the disputed land, namely, ABCD. Even if there be no denned stream or channel over the defendant's aforesaid piece of land still it cannot be said that the water did not start and pass through a stream or channel initially. That this fect is relevant will be seen from the facts of Dhanna's case (supra) and from certain other cases also. In the Rajasthan case, Lodha, J. observed;
'In the present case as I have already stated above there is a well defined existence of water arising from an ascertained course flowing in a defined channel then spreading itself out over the defendants' fields and thereafter leaving the defendants' fields it irrigates the fields of the plaintiff directly. In these circumstances it is not a case of surface water in respect to which no rights could ' be obtained under Section 17 of the Easements Act.'
8. In Venkataramaniah v. Subbramayya : AIR1961AP245 it has been laid down:
'The only test in determining whether water partakes of the character of surface water is whether its identity or existence as water body is maintained.
Where water flows in a well defined course into an upper field, spreads itself over the whole field, which is irrigated by it and then flows over the field ridge to lower field or into an intermediate channel through which it comes into another field, it could not be regarded as surface water so as to attract Section 17, Clause (c).'
9. In the said Andhra Pradesh case the defendant's counsel raised a similar plea as has been raised here. The Division Bench noticed the said plea in these words:
'According to the learned counsel, since the water after getting into the defendants' land spreads itself over the defendants' field and does not get into any surplus channel, before it comes to the plaintiffs' field, it could not be regarded as a known and defined source of irrigation, in which case alone plaintiffs would be entitled to claim such a right.'
The Division Bench repelled this contention in these words :
'Does the fact that this water gets into the intervening field of the defendants, spreads itself over the entire extent thereof and comes to the field of the plaintiffs through a vent instead of being let into an intermediate channel, make any difference in the matter of the acquisition of the right in dispute? In our considered opinion, neither of these two circumstances renders the water surface water so as to disable the owner of the lower field to prescribe to a right like the one claimed here. The only test in determining the character of such water is whether its identity or existence as a water body is maintained.'
The Division Bench placed reliance on the well known case reported in Villuri Adinarayana v. Ramudu (AIR 1914 Mad 507).
10. To the same effect is the law laid down in M. Venkataramaniah v. V. Subbaramayya : AIR1959AP153 . Seshachalapati, J, observed:
'The main feature of surface water is its inability to maintain its identity andexistence as a water body.
Water flowing into a field from a known channel and passing along the field onwards into another field though not over a confined track in the former field, but along its whole area is not surface water.'
11. The facts in Manturabai's case AIR 1954 Nag 103 (supra) were peculiar and it cannot be said that the law has been differently laid down in the said case. The plaintiff claimed a right to water percolating from Khasra 119 which was a tank jointly owned by the proprietors of the village. The plaintiff's case was that the water percolated from the said tank collected in Khasras 135 and 136 which were fields owned by the defendants and that thereafter reached tank No. 134 which was the tank owned by the plaintiff. The Division Bench which decided the case found that there was no evidence that the water percolated from tank No. 119 and collected in Khasra Nos. 135 and 136 and thereafter reached in tank No. 134 through K. In the said facts it was observed:
'No easement right can be acquired over percolating water unless it runs in a defined stream.'
It will be seen that even at the initial stage there was no stream or channel through which the water passed unlike the case here where water initially flows from the Nabdan in the plaintiff's house and then goes over to the disputed land, namely, ABCD. To such a case the facts in the two Andhra Pradesh cases and in the Rajasthan case have more similarity. Moreover, Clause (c) of Section 17 seems to be concerned with a case where a right to surface water is being claimed. Here no such right to surface water is being claimed. What the plaintiff is claiming is a right to flow water over the defendant's land onward--water which passes from his Nabdan. I do not think it is the same thing as ,a right to surface water as understood under Clause (c) of Section 17. Therefore, the learned counsel's contention based on Section 17(c) is rejected.
12. I do not think there is any substance in the aforesaid second contention of the learned counsel also. Again, the point was not taken in the courts below and it would not be proper to allow the said question which is a pure question of fact, to be raised at this stage. Moreover, it is not necessary that a right of passage or way over the defendant's land should be continuous. Indeed, illustration (b) to Section 5 of the Easements Act shows that such a right is a discontinuous easement. Section 5 only says that easement is either continuous or discontinuous, apparent or non-apparent and in Section 15 dealing with the acquisition of easementary rights by prescription, it is not said that such rights can only be acquired in respect of continuous and apparent easements. Indeed, as we have seen, illustration (b) to Section 5 clearly shows that the right of way over the defendant's land is a discontinuous easement and the acquisition by prescription of such a right is clearly visualised under Section 15, where it is laid down:
'...... and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years,
the right to such access and use of light, or air, support or other easement shall be absolute.....'
13. The learned counsel for the defendant-appellant in this connection placed reliance on Palaniswami Naicker v. Chmnaswami Naicker (1968) ILK 3 Mad 61'8 where it is laid down,
'An easement of way being an affirmative easement enabling the dominant owner to use the servent tenement ought to be continuous and apparent. It should be peaceably and openly enjoyed as of right and as an easement.'
The learned single Judge in the Madras case has not relied upon any case for the said proposition and with respect, I differ from the law laid down in the said case. In this connection attention may be invited to the earlier decision of the Madras High Court reported in Esa Abbas Salt v. Jacob Haroon Salt (1910) 20 Mad LJ 291 where a contrary view was taken. Therefore, I reject the second contention of the learned counsel also.
14. So far as the third contention of the learned counsel is concerned, again I hold that there is no merit in the same. It was emphasised that the requirements of Section 15 are that the right should be claimed as an easement and as of right, and further that the period of 20 years 'shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested'. It was emphasised that the right must be claimed as of right and further there should be no interruption in the exercise of such right beyond the period of two years from the date of the institution of the suit. It was claimed that there was nothing to show that the plaintiff had exercised the easements claimed by him as of right. This contention is without merit. 'Enjoyment as of right' means 'enjoyment had, not secretly or by stealth or by fact sufferance or by leave or favour, or by permission asked from time to time on each occasion, or even on many occasions of using it but an enjoyment had openly, notoriously, without particular leave, at the time, by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right'. Ram Sarup v. Abdul Haq (AIR 1931 Lah 395). 'Long, uninterrupted and peaceful enjoyment of a right of easement is presumed to be as of right'. It is not the case of the defendant-appellant here that the plaintiff was enjoying the right with his permission or secretly or by stealth or by leave or favour and, therefore, in view of the long user for about 35 years it should be presumed that it was as of right.
15. The other limb of the learned counsel's submission is based upon the findings recorded by the court below that there was an obstruction in 1961 in the plaintiff's right of passage. In this connection the learned counsel drew my attention to the plaintiff's own admission while in the witness-box where he stated that there was such an interruption in 1961 and the matter was agitated in the meeting of the Gram Panchayat held on 8-8-1961. A certified copy of the Minutes of the said meeting was filed on behalf of the plaintiff-respondent and the same is Ex. 1. Ex. 2 is a certified copy of the order passed by the Nyaya Panchayat on the report lodged by the Gram Panchayat that the defendant had failed to comply with its direction as contained in Ex. 1, The Nyaya Panchayat directed, that the new Osara constructed by the defendant Ram Narain should be removed and that he should instead put up a thatched Osara measuring 3 cubit feet in length and 1 12 cubit feet in width. The plaintiff stated in his deposition that the defendant complied with the said direction of the Nyaya Panchayat. The learned counsel for the defendant-appellant placed reliance on Sultan Ahmad v. Waliullah, (1912) 10 All LJ 227, Kedar Nath v. Sohan Lal. 12 All LJ 693 : (AIR '1914 All 323), Reilly v. Orange, (1955) 2 All ER 369 and Madan Lal v. Giri Lal : AIR1970All404 . In addition to the aforesaid cases cited at the Bar attention may be invited to a few other cases also in this connection. Siti Kaiita Pal v. Radha Go-binda Sen : AIR1929Cal542 and Maung P We v. Maung Chan Nyein. ILR 7 Rang 487 : (AIR 1929 Rang 300). The proposition seems to be well settled that long user in itself does not result in the acquisition of easement by prescription. There has to be a challenge in a suit and it should be proved that the claimant has been in the enjoyment of the easement within two years of the institution of the suit. In other words, if the claimant after interruption and the consequent cessation of enjoyment of the easementary rights fails to take action within two years from the date of such cessation then he will lose his right and a fresh period of 20 years has to pass before he can again acquire such a right. However, in this case there are certain difficulties in the way of the defendant for contending that there had been cessation of enjoyment by the plaintiff at a point of time which fell beyond the period of two years from the date of the institution of the suit. Firstly, it should be noticed that no such claim was laid in the written statement. No facts were set out to show that there was any interruption by the defendant and that the defendant submitted to or acquiesced in the said interruption and in the absence of pleadings to the said effect it will not be correct to infer that the plaintiff's claim stands extinguished under the fifth para of Section 15 of the Indian Easements Act. Explanation 2 of Section 15 lays down:
'Explanation II. Nothing is an interruption within the meaning of this -section unless there is an actual cessation of the enjoyment by reason of an obstruction bv the act of some person other than the claimant, and unless such ob-struction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.'
Now, there is nothing in the evidence of the parties to show that there had been an actual cessation of the enjoyment by the plaintiff and further there is nothing to show that the obstruction had been submitted to or acquiesced in for one vPar after the claimant had notice thereof and of the person making or authorising the same to he made. All these are questions of fact and unless a clear averment was made in the written statement by the defendant-plaintiff is bound to be taken by surprise if in the second appeal such a plea is allowed to he raised. In this conception, the learned counsel for the plaintiff-respondent, pointed out that the proceedings before the Gram Panchayat and the order of the Nyaya Panchayat only show that before the said bodies the point raised related only to easement of passage over the disputed lard. Nothing was said about the right to flow water over the disputed land. Therefore, it could not he said that there was any obstruction to the passage of water. Moreover, even the said proceedings with reference to Exs. 1 and 2 show that, there was no actual cessation of the enjoyment of the easement of way. Therefore in the absence of the pleadings, issues and evidence the defendant cannot be allowed to raise the said contention and the material on the record cannot be said to contain any admission of the plaintiff in this respect. The learned counsel for the defendant-appellant sought, to place relianceon Yeshwant v. Walchand : 1SCR852 but I do not think that the ratio laid down in the said case will be applicable to the instant case. In the Supreme Court case it was laid down that if the facts proved and found as established are sufficient to make out a case of fraud within the meaning of Section 18, Limitation Act, the objection that a plea under Section 18 was not taken in lower courts or in the grounds of appeal is not serious, as the question of the applicability of the section will only be a question of law and such a question can be raised at any stage of the case and also in the final court of appeal. Here, there are no facts proved or found which will enable the court to come to the conclusion that the plaintiff lost his right in the manner in which such a right will be lost under the fifth para of Section 15 read with Explanation II of the said section. Therefore, the aforesaid contention of the learned counsel for the defendant-appellant is discarded.
16. So' far as the aforementioned fourth contetnion of the learned counsel is concerned, again I do not find any merit therein. Section 4 (b) of the U. P. Village Abadi Act, 1948 lays down:
'4. House-owners' right of user--Notwithstanding any custom or usage to the contrary in any agricultural village a house-owner may-- (a) .....
(b) make such construction in the sahan darwaza, or land appurtenant to such house as may be necessary for agricultural or domestic purposes.'
Again, it has to be emphasised that the plea was not taken in the defence and in the absence of the pleadings and any finding by the courts below it would not be fair to allow the said contention to be raised at the stage of the second appeal. The contention raised is not a pure question of law. Moreover, the section refers to custom or usage and we are dealing with the acquisition of an easementary right by the plaintiff. Therefore, it seems to me that the said section does not apply. I do not think that by enacting Section 4 in the said Act the U. P. Legislature could, in any manner, curtail or modify the operation of a central statute such as the Indian Easements Act. Constitutionally that can be done only after compliance with the formalities laid down in the Constitution of India and moreover the section, as it is worded, does not say that its provision will prevail notwithstanding the law contained in any other statute. I, therefore, do not find any merit in the said contention.
17. Lastly, the learned counsel for the defendant-appellant argued that even if the plaintiff had acquired easementary right to pass over the disputed land and to flow water on the same, still it was not necessary that his entire constructions should be demolished. His point is that in case it is possible to retain a part of the constructions which would enable the plaintiff to enjoy his easementary rights then the courts below should have made appropriate direction and should not have directed the wholesale removal of the constructions in question. The learned counsel has relied upon Bala v. Maharu, (1896) ILR 20 Bom 788. I think there is merit in this contention. In this connection certain provisions of the Easements Act may be examined. Sections 22, 24 and 28 seem to embody the rule that while the claimant of the easementary right should have a full protection in the enjoyment of his right, there should be an adjustment with the rights of the servient owner also so that the least inconvenience be caused to the latter. It is not necessary to discuss the provisions of the said sections in detail as what I am emphasising is the spirit underlying the said provisions. In the instant appeal, the courts below have held that the defendant-appellant is the owner of the disputed land ABCD. However, the plaintiff's easementary rights have been upheld by the courts below. In the second appeal I am also upholding the said rights but it seems that the plaintiff can enjoy the said rights without directing the demolition of the entire structures presently standing on the said land. The learned counsel for the parties are agreed that so far as the right of way is concerned, if a strip of land measuring about three cubits in width is left then the plaintiff and his bullock-cart can easily pass through such a passage. There should not be any difficulty in flowing Nabdan water also from a strip of land measuring three cubits in width. Therefore, I think, there should be a directing that the walls AB & CD shall be so demolished that a strip of land measuring 5' in width shall be left unobstructed and free to enable the plaintiff to enjoy his aforesaid easementary rights. The rest of the walls can remain on the spot.
18. I may also mention that a few more cases cited at the Bar, for example, Brij Mohan v. Hazari Lal : AIR1936All90 , Gauri Shankar v. Hemant Kumari : AIR1936All301 and Khandeswar v. Gokulananda : AIR1965Ori91 , do not seem to be relevant to the controversy at hand and, therefore, it is not necessary to discuss the law laid down in the said cases in detail.
19. In the result, the appeal is partly allowed. The decree of the trial court, which has been affirmed by the lower appellate court, is modified to the extent that the defendants are directed to remove the walls AB & CD in such a manner that there is a clear unobstructed passage measuring 5' over the land ABCD to enable the plaintiff to enjoy the easementary rights claimed by him in the suit. This 5 shall be measured from BC in the map (Paper No. 22-A, 2 of the trial court). Such removal shall take place within a period of three months from the date of the decree in the second appeal. On the failure of the defendant to do so the removal shall be got done through the court at the expense of the defendant. The map Paper No. 22-A, 2 shall form part of the decree of this court in the second appeal also. In the circumstances of the case, the parties shall bear their own costs.