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Ram Sahai and ors. Vs. Man Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Case NumberSecond Appeal No. 1286 of 1946
Judge
Reported inAIR1952All398
ActsEasement Act, 1882 - Sections 15 and 23
AppellantRam Sahai and ors.
RespondentMan Singh and ors.
Appellant AdvocateP.M. Varma, Adv.
Respondent AdvocateS.C. Asthana, Adv.
DispositionAppeal allowed
Excerpt:
property - easement rights - sections 15 and 23 of easements act, 1882 - dropping of rainwater from the roof to servient heritage - change in structure of roof - water dropping from two spouts - no interruption of enjoyment. - - 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 .easement shall be absolute......water was formerly flat. the water dropped in the defendants' courtyard. sometime thereafter, the flat roof was converted into a thatched roof with two thatches-one discharging water from its eaves towards the plaintiffs' courtyard and the other towards the defendants' courtyard. the thatched roof remained in existence for more than two years. after that, about twelve years ago, the flat roof was again made with two spouts discharging the rain water upon the defendants' land. again there was a thatched roof in place of the flat one and the thatched roof has now been reconverted into a flat one discharging water through the two disputed spouts. it is not disputed that the plaintiffs have been discharging water upon the defendants' land for more than twenty years. for some period the.....
Judgment:

Bind Basni Prasad, J.

1. This is a plaintiffs appeal arising out of a suit in which the prayer was that the plaintiffs have a right to discharge the rain water from five spouts from the roof of their house. As regards three of the spouts, the defendants admitted the plaintiffs' right. The dispute was about only two of the spouts. Learned Munsif decreed the claim. The defendants went in appeal and the learned Civil Judge dismissed the plaintiffs' claim in respect of spouts C and D shown in the sketch map forming part of the decree of the trial Court.

2. The finding of the learned Civil Judge is that the roof of the room from which these two spouts discharge water was formerly flat. The water dropped in the defendants' courtyard. Sometime thereafter, the flat roof was converted into a thatched roof with two thatches-one discharging water from its eaves towards the plaintiffs' courtyard and the other towards the defendants' courtyard. The thatched roof remained in existence for more than two years. After that, about twelve years ago, the flat roof was again made with two spouts discharging the rain water upon the defendants' land. Again there was a thatched roof in place of the flat one and the thatched roof has now been reconverted into a flat one discharging water through the two disputed spouts. It is not disputed that the plaintiffs have been discharging water upon the defendants' land for more than twenty years. For some period the water has fallen from the eaves of the thatch and for some period through the two disputed spouts. Learned Civil Judge thinks that as the discharge of water through the two spouts has not been proved for twenty continuous years, the right of easement has not been established. It is necessary to examine the relevant statutory provisions on the subject.

3. Section 15 of the Easements Act, 1882, provided for the acquisition of easements by prescription. Paragraph 3 of that section runs as follows:

'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 ..... easement shall be absolute.'

To this is added Explanation II which runs as follows:

'Nothing is an interruption within the meaning of this section, unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction 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.'

4. It is clear from the above that for the acquisition of prescriptive easement the enjoyment of the right for twenty years without interruption is essential. The question is whether the fact that the mode of enjoyment was changed from time to time during the period of twenty years causes or not an interruption within the meaning of Section 15, Easements Act. Upon this point Explanation II gives a clear answer. Three conditions are necessary before an interruption can be inferred within the meaning of this section--(1) there must have been a cessation of the enjoyment ; (2) this must have been by reason of an obstruction by the act of some person other than the claimant; and (8) such obstruction must have been submitted to or acquiesced in for one year after the claimant has notice thereof. The very first condition is absent in the present case. It is not the defendants' case that any time during the period of twenty years the plaintiffs ceased to discharge the rain water upon the defendants' land. The second condition ia also absent, because there was no act on the part of she defendants by reason of which the plaintiffs ceased Co discharge water through two spouts. The change in the mode of enjoyment was due to an act on the part of the plaintiff himself. Then, I must refer also to Section 23, which entitles the dominant owner to alter from time to time the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. I am of opinion that if a dominant owner drops rain water from the eaves of his thatched roof upon the servient heritage and subsequently he changes the thatched roof into a flat one and begins to drop the rain water through two spouts, there is no interruption of enjoyment within the meaning of Section 15 of the Act. The burden is not increased upon the servient heritage because the amount of water dropped is the same. The only difference is that when the roof was of thatch the water dropped along the whole course of the eaves, whereas when it became flat the same quantity of water dropped through the two defined spouts. The view taken by the learned Civil Judge is not sustainable under the law.

5. There is a cross objection also by the defendants respondents. There is no force in it, as it is concluded by findings of fact.

6. The appeal is, therefore, allowed, the decree of the learned Civil Judge is set aside and that of the learned Munsif is restored. The plaintiffs' suit for injunction is decreed with costs throughout against the defendants. The cross objection is dismissed with costs.


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