1. The question referred to this Bench for decision arose in the consideration of a second appeal in a suit in which the plaintiff sought for an order from the Court directing the defendants to open certain drains and for an injunction against the defendants restraining them from interfering with the plaintiffs' right to drain off the rain water and sewage from their house through these drains. The Court of first instance dismissed the suit. The order of the first Court was modified by the lower appellate Court. In second appeal an injunction was granted to the plaintiff restraining the defendants from closing the drains so as to prevent the rain water flowing from the plaintiff's house through the drains. So far as the latrine water is concerned however the plaintiff's prayer was refused upon the ground that the right to drain sewage water was not a continuous easement within the meaning of Sections 5 and 13, Easements Act. It was not disputed that the easement was apparent and necessary for the plaintiff's enjoyment of his share of the property. It was denied however that the easement claimed by the plaintiff was continuous within the meaning of the provisions of the Easements Act. According to Section 5 of the Act a discontinuous easement is one that needs an act of man for its enjoyment and the ratio decidendi of the Court's order in second appeal was that the flowing of latrine water through a drain necessitated the act of man.
2. The parties it appears were co-sharers in certain house properties which were partitioned in 1925, one portion being allotted to the plaintiffs and the other to the defendants. The drain, which is the subject of the dispute, had been in existence long before the partition and had carried off both the rain water and the latrine water from the property. By Section 13(f) if an easement is apparent and continuous and necessary for the enjoyment of the share allotted to one of the parties on partition as that share was enjoyed when partition took place, such party shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Illus. (h) appended to this section is as follows:
A, the owner of two adjoining houses, Y & Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.
3. In refusing the plaintiff's prayer in relation to latrine water in second appeal the learned Chief Justice followed the decision in Sajid-un-nissa Bibi v. Hidayat Hussain 1924 22 ALJ 425. This is a single Judge decision. The learned Judge who decided the case held that the right to drain latrine water was an easement which was apparent but not continuous because the drainage of latrine water required an act of man. This decision appears to be the only authority in support of the proposition that the right to drain sewage from a latrine is not a continuous easement within the meaning of Sections 5 and 13, Easements Act. Learned Counsel for the plaintiff cited in support of the contention that the right to drain sewage from a latrine on to a servient tenement is a continuous easement within the meaning of the Easements Act, the following cases: Bishambhar Nath v. Jagannath Prasad 1915 29 IC 695; Chintakindy Parvatamma v. Lanka Sanyasi,(1911) 34 Mad 487; Morgan v. Kirby (1878) 2 Mad 46; M. Gangulu v. T. Jagannatham 1924 Mad 108; Kartic Manjhi v. Banamali Mukerji 1930 Pat 7. In Bishambhar Nath v. Jagannath Prasad 1915 29 IC 695 it was held that by virtue of Section 13, Clause 3(d), Easements Act, the plaintiff had a right to flow water from the kitchen of his house through the drain on to the defendant's property. In Chintakindy Parvatamma v. Lanka Sanyasi,(1911) 34 Mad 487 it was decided that a drain from one land to another is a continuous easement within the meaning of the Easements Act. In the course of his judgment in that case Wallis, J., remarked:
It is well settled that a drain is a continuous easement, see among other cases Pearson v. Spencer,(1861)1 B & S 571, which expressly contrasts continuous easements such as drains with discontinuous easements, such as right of way, also Pyer v. Carter (1857) 1 H&N; 916, which has never been questioned on this point.
4. In the same case Krishnaswami Ayyar, J., observed:
A continuous easement is defined in Section 5 as 'one whose enjoyment is or may be continual without the act of man'. It was argued that drainage consequent on domestic use of water was a result of human activity and could not therefore be held to arise without the act of man. The argument if valid would apply to rain water dropping from the eaves of a building and even to artificial water courses. It is pointed in Gale on Easements, Edn. 7, p. 121, that the word 'continuous' may be understood to refer not to continuity of enjoyment but to permanence in the adaptation of the tenant.
5. At p. 123 he says:
Even in the case of drains the easement is not strictly 'continuous': the drain is not always flowing, but there is necessary and permanent dependence of the house upon it for its enjoyment as a house, in the state in which it is at the time of the conveyance.
6. In Morgan v. Kirby (1878) 2 Mad 46, it was held that the right to flow water through an artificial channel was an apparent and continuous easement. In M. Gangulu v. T. Jagannatham 1924 Mad 108, it was held that where the plaintiffs' plots were all along watered through openings or vents, the existence of these vents was sufficient evidence of an apparent, continuous and necessary easement.
The vents might be closed for the sake of convenience after irrigating the plaintiffs' fields as a temporary measure just as a drain may be closed for clearing silt or for repairs, but this act being done for the proper enjoyment of the easement or in the course of the enjoyment of an easement which is continuous would not make the easement a non-continuous one.
7. In Kartic Manjhi v. Banamali Mukerji 1930 Pat 7 it was decided that artificial water courses or openings for taking water from a tank or bandh are apparent and continuous easements. The, authorities above referred to clearly support the view that the right to drain water from a latrine through a drain and on to a servient tenement is a continuous easement within the meaning of the Easements Act. Apart from the authority of the decisions above referred to however it appears to me clear from the terms of the Act itself that the right to drain sewage water is a continuous easement. The words of illus. (h) to Section 13 quoted above are sufficiently wide and leave no doubt on the matter. According to that illustration all gutters and drains common to two houses are continuous easements. Further I am unable to agree with the view that within the meaning of Sections 5 and 13, Basements Act the utilisation and enjoyment of a drain constructed for the purpose of leading of sewage from a latrine necessitates the act of man. Once the drain is constructed the sewage introduced into it will without the acts of man but by the mere force of gravity flow on to the servient tenement if there is no obstruction. The essential element in the enjoyment of the drain is the free flow of the water from the dominant tenement to the servient tenement and once the drain has been properly constructed this free flow will be effected without the intervention of an act of man. A discontinuous easement is defined by Section 5 as one that needs the act of man for its enjoyment; but if sewage water once introduced into the drain flows freely through it to the servient tenement then the act of man is not needed for the enjoyment of the easement. For the reasons given above, in my judgment the question referred to this Bench for decision, viz., whether the right to drain latrine sewage on to a servient tenement is a continuous easement should be answered in the affirmative.
8. The question of law, which the order of reference appears to contemplate, is whether the right annexed to one house of leading rain and sewage water through a drain passing a cross another house is a continuous easement within the meaning of Section 5, Easement Act. The parties to this litigation were joint owners of a certain house property which was subsequently partitioned, one portion being allotted to the plaintiff and the other to the defendants. It has been found that there was a drain in the defendants' portion through which the rain and sewage water used to flow from the plaintiff's portion on to a Municipal drain. After partition the defendants objected to the plaintiff using the drain in the defendants' house for the passage of water from his own house. The plaintiff complained of obstruction to the flow of water, and prayed for the relief of injunction restraining the defendants front closing the drain and preventing the passage of water from the plaintiff's portion of the house through the drain. The plaintiff claimed relief on two-grounds. First, he claimed an easement of necessity, and secondly an easement of the nature described in Section 13(f), Easements Act. It has been found that the plaintiff has failed to establish his claim to an easement of necessity, and we are not concerned with this aspect of the case. His right to relief on the second ground depends on the answer to the question which is the subject-matter of this reference. It will be seen that Section 13 deals with rights arising (1) on transfer or bequest, and (2) on partition. Clauses (a) and (b), Section 13 provide in favour of a transferor what Clauses (e) and (f) of the same section provide in favour of a co-sharer after partition. The principle underlying the two sets of clauses is identical. Clauses (a) and (e) deal with easements of necessity. Clauses (b) and (f) deal with apparent and continuous easements. That part of Section 13 which deals with easements arising on partition is as follows:
Where a partition is made of the joint property of several persons: (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or: (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be en.-; titled to such easement.
9. The difference between the two kinds of easements dealt with in the provision quoted above is that, in case of easement of necessity, the claimant must establish that he cannot enjoy his share at all without an easement being conceded to him; whereas the second kind of easement is available to him if he cannot enjoy the share allotted to him in the manner in which it was enjoyed before the partition, provided he can establish the further condition, namely, that the easement is ' apparent and continuous. ' These two words are used in the section in a technical sense and are defined in; Section 5, in which a continuous easement is said to be one whose enjoyment' is, or may be, continual without the act of man,' and
An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.
10. Conversely, ' a discontinuous easement is one that needs the act of man or its enjoyment,' and 'a non-apparent easement is one that has no such sign,' as if referred to above. In the present case, there can be no doubt that the easement claimed by the plaintiff is 'apparent.' The drain passing through the defendants' house is clearly shown by a permanent sign. There is no controversy between the parties on this point. The important question is whether it is also ' continuous ' in the above sense. It is 'argued on one side that, so far as water used in the plaintiff's house for domestic purposes is concerned, it depends upon the act of man ' without whose agency there can be no occasion for the flow of such water. This view has found favour with the learned Chief Justice; who heard the appeal in the first instance and from whose decision a Letters Patent Appeal was preferred. The reference has been made by the Bench hearing the Letters Patent Appeal. The learned Chief Justice granted the relief of injunction so far as the plaintiff's right to lead rain water is concerned, on the ground that no act of man was necessary for the flow of such water. As regards the flow of water used for domestic purposes he held that it required the act of man and therefore an easement with respect of such water is discontinuous. The view taken by the learned Chief Justice follows the decision of Mukerji, J., in Sajid-un-nissa Bibi v. Hidayat Hussain 1924 22 ALJ 425. When the case was argued before the Bench hearing the Letters Patent Appeal, a reference was made to Chintakindy Parvatamma v. Lanka Sanyasi,(1911) 34 Mad 487 and to some English cases in which a contrary view has been taken and which do not appear to have been quoted either before Mukerji, J., or the learned Chief Justice. In those cases a distinction, which seems to be one of nicety, was drawn between the act of man being necessary for the flow of water used for domestic purposes on the land belonging to the dominant tenement and on the land belonging to the servient owner in the course of its passage from one to the other. The distinction is one which is apt to be lost sight of, unless it is specifically made a point of. It is difficult to say what view Mukerji, J., or the learned Chief Justice would have taken if this distinction had been founded on in the contention put forward on behalf of the claimant.
11. We are to consider, in the first instance, the provisions of the Indian Easements Act; and, unless the view taken in the English cases can be supported on the language of that Act, we are not free to accept it, even though it may be such as to tend to general convenience. It may be conceded at once that to allow a plaintiff the right to use the defendant's drain for the purpose of leading one kind of water and not another is likely to give rise to friction. It seems to me that, apart from positive nuisance, it is more desirable that the law should allow an easement with regard to both kinds of water or not at all. Having given a careful consideration to all the relevant sections of the Indian Easements Act, I am of opinion that its provisions are identical with the rule laid down in the English cases. To my mind, the key to the entire problem is furnished by the definition of easement' given in Section 4 of the Act; and as the word ' easement ' occurs in the definition of ' continuous easement,' which expression is an integral part of Section 13(f), with which we are immediately concerned, we should read the definition of ' easement ' into Clause (f). Now, easement is defined as:
A right...to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land,
not belonging to the dominant owner. If we import this definition of the word 'easement' into the definition of ' continuous easement,' the definition of the latter will be amplified thus:
A continuous easement is a right to do, and continue to do, something, or prevent, or continue to prevent, something being done, without the act of man, in or upon, or in respect of, certain other land not belonging to the dominant owner.
12. It will be seen at a glance that the act of man, so far as it affects the easement being . continuous or discontinuous is something done upon the land belonging to the servient owner. So long as domestic water remains on the land belonging to the dominant owner-and it is there that the act of man comes in the exercise of easement does not begin. It begins when it leaves the land belonging to the dominant owner and begins to flow on the servient tenement. So far as its flow on the latter is concerned, no act of man intervenes, unless it is a case in which the flow of all water is not possible without the dominant owner doing something on the land of the servient owner for instance, opening a passage which is closed, except when he desires to lead the water. It is clear to me that during the passage of water on the servient tenement which alone amounts to the exercise of easement no act of man is necessary. For these reasons, I am of opinion that no distinction can be made between water used for domestic purposes and rain water and that the plaintiff has as much right to use the defendants' drain for the former as for the latter. I answer the question referred to accordingly.
13. I agree with the judgments of my learned brothers.
14. The question contemplated by the reference namely whether the right to drain sewage on to a servient tenement is a continuous easement is answered in the affirmative. Let the record be laid before the Bench concerned.