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Jagannath Vs. Angad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All363
AppellantJagannath
RespondentAngad and ors.
Excerpt:
..... - easements are restrictions of one or other of the following rights (namely): (a) the exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto. (b) the right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation. if this right could be interfered with by any construction which the owner of the lower land might choose to make on his land, without acquiring any easement or prescriptive right to do so, it is difficult to understand how the defendants who possess this right on account of the natural advantage arising from the situation of their..........situation.2. illustration (i) under this section is:the right of every owner of upper land that water naturally rising in or falling on such land and not passing in defined channels, shall be allowed by the owner of adjacent lower land, to run naturally thereto.3. according to this illustration, the defendants being the owners of upper land have a right to flow water from their land to the land of the plaintiff. until nobody acquires any easement to restrict this right of the defendants the defendants have a right to flow their water to the lower land of the plaintiff. this view receives support from the case in ambica saran singh v. debi saran singh (1914) 1 a.i.r. all 436, where it was held that the right of every owner of land lying on a higher level to flow water naturally falling.....
Judgment:

Ganga Nath, J.

1. This is a plaintiff's appeal and arises out of a suit brought by him against the defendants respondents for an injunction to restrain the defendants from interfering with the plaintiff's construction of a wall on his land, plot No. 461. The land adjoining this plot to the west belongs to the defendants and is on a higher level. The defendants contested the plaintiff's suit on the ground that they had a natural right to flow water from their land, which was on a higher level, to the plaintiff's land which was on a lower level. The lower Court has found in favour of the defendants. It has been urged by the learned Counsel for the appellant that the defendants have no such natural right. It is conceded that the defendants' land is on a higher level than that of the plaintiff's. The water from the other land which adjoins the defendants land and is on a higher level flows over the defendants' land. From there, it flows on to the land of the plaintiff. No question of any right of easement arises in this case, because the right which is claimed by the defendants is not a prescriptive right, but is a right ex jure natures. Section 7 of the Easements Act lays down:

Easements are restrictions of one or other of the following rights (namely):

(a) The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.

(b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

2. Illustration (i) under this section is:

The right of every owner of upper land that water naturally rising in or falling on such land and not passing in defined channels, shall be allowed by the owner of adjacent lower land, to run naturally thereto.

3. According to this illustration, the defendants being the owners of upper land have a right to flow water from their land to the land of the plaintiff. Until nobody acquires any easement to restrict this right of the defendants the defendants have a right to flow their water to the lower land of the plaintiff. This view receives support from the case in Ambica Saran Singh v. Debi Saran Singh (1914) 1 A.I.R. All 436, where it was held that the right of every owner of land lying on a higher level to flow water naturally falling on such land and not passing in defined channels to the land lying on the lower level is a right ex jure natures and not a right founded on prescription. This right comes under Clause (b) of Section 7. This is a natural right which accrues to the defendants by the natural position of their land on a higher level. If this right could be interfered with by any construction which the owner of the lower land might choose to make on his land, without acquiring any easement or prescriptive right to do so, it is difficult to understand how the defendants who possess this right on account of the natural advantage arising from the situation of their land can enjoy its rights.

4. Reliance is placed on Mahamahopadyaya Rungachariar v. Municipal Council of Kumbakonam (1906) 29 Mad. 539. This case was considered in Ambica Saran Singh v. Debi Saran Singh (1914) 1 A.I.R. All 436, referred to above, and dissented from. It is not consistent with the right of every owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation, as stated in Clause (b) of Section 7 of the Basements Act. I do not agree with this Madras case Mahamahopadyaya Rungachariar v. Municipal Council of Kumbakonam (1906) 29 Mad. 539. The plaintiff has no right to interfere with the right of the defendants to flow their water on to the plaintiff's land. There is no force in the appeal and it is ordered that it be rejected under Order 41, Rule 11, Civil P.C.


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