1. This second appeal raises some interesting points of law. It appears that the suit related to a. certain wall and a piece of land immediately to the south of it. The plaintiff who is the appellant before this Court claimed that the wall and the land were his private property. He complained that, the respondent, the defendant, interfered with his right of possession in certain ways. At this stage of the case it is not necessary to enter into the details. The Court of first instance partially decreed the suit and ordered the supposed interferences with the right of the plaintiff to be removed. The lower appellate Court came almost to a directly opposite conclusion and ordered the suit to be dismissed in toto. The first point that has been taken in this Court is that no appeal lay to the Court below. This plea arises out of the following circumstances. At the trial of the suit, the counsel for the parties stated that they were not prepared to adduce any oral evidence. They suggested that the Court, Subordinate Judge, should inspect the locality and should decide the case on the basis of what he might see on the spot and on an examination of such documentary evidence as might he adduced by the parties up to 3 p.m. of the day when the statement was recorded. The learned Subordinate Judge inspected the locality, examined the documentary evidence, heard the arguments for the parties and decided the case. It is urged for the plaintiff-appellant that the parties really constituted the Subordinate Judge their sole arbitrator of the case and that the judgment was really an award of an arbitrator, and no appeal lay to the District Judge. Several cases reported in Shahzadi Begam v. Muhammad Ibrahim A.I.R. 1921 All. 310. Bahir Das Chakravarty v. Nabin Cbunder Pal (1902) 29 Cal. 306 Nidamarthi Mukkanti v. Thamman Ramayya (1903) 26 Mad. 76 and Chinna Venkatasami Naicken v. Venkatasami Nainken (1919) 42 Mad. 625 have been relied on on behalf of the appellant in support of his argument. I have examined each and every one of these cases and. I have found that the intentions of the parties in those cases were clear and were that they were binding themselves by the decision that might be given by the Court. No such intention can be gathered from the language used in this particular case. All that the parties did was to make a statement that they were not going to adduce oral evidence and that they requested the Court to exercise its inherent power of inspection of the locality. That is all. The parties did nothing beyond this. It was open to the parties not to adduce any oral evidence. As a matter of fact, in the circumstances of a case like this, the oral evidence could be of little use. The oral evidence that could be adduced would only go to show the state of facts as could be ascertained more easily on an inspection. The facts were, for example, how certain beams lay, certain spouts existed and so forth. In my opinion an appeal did lie to the lower appellate Court.
2. Coming to the merits of the case, the learned Judge has found that the plaintiff had no title to the property claimed, viz., to the wall and the land and dismissed the suit. The Court also considered certain other aspect of the cases which will be mentioned presently. In this Court, it has been urged that if the lower Court's finding that the plaintiff had not title be accepted as final, there still remained the fact that the plaintiff had certain possessory rights and the lower appellate Court had ignored the consequences of such rights as were apparent on the face of the record. I propose the examine this aspect of the case. There can be no doubt that the finding of the learned Judge as to title is conclusive. This finding is based on facts observed on the spot and on examination of the documentary evidence adduced by the parties. The Court found that the wall which the plaintiff claimed as his own was a part of a much large tract of land within which were good many shops and business quarters. The Judge found that the land which the plaintiff claimed as his own was a portion of a lane which went all round the land enclosed by the wall and inferred that it was a part of the site or the market Smithganj itself which was enclosed by the enclosing wall. These wore findings to which the lower Court had absolute jurisdiction to arrive and I am clear that this finding is binding on this Court.
3. Now coming to the question of possessory right and the consequences thereof, the Court of first instance dismissed a part of the plaintiff's suit and there was an appeal against that judgment. We need not therefore consider that part of the plaintiff's suit which failed in the Court of first instance. The judgment of the appellate Court shows that only one point was taken before it, concerning the question as it remained after the finding that the plaintiff bad no title either to the wall or to the site. As the judgment shows, it was urged on behalf of the plaintiff that the defendant's new building had blocked up two of his windows, opening on the lane. The learned judge pointed out that these openings had been created during the course of the suit and when the defendant was erecting his own building. It is clear therefore that there are no merits in this portion of the case. I may point out that nothing was said in the plaint about these windows for the simple reason that they never existed when the claim was filed.
4. The Court of first instance having found that the wall and the land belonged to the plaintiff ordered that the mud spread on the surface of the land (which has been described throughout as (abchak) should be removed and the room built over the land should be demolished and the water spouts of the plaintiff should be restored to their original condition. This is all the relief which the plaintiff got there. Now if the land be not plaintiff's property no question of the removal of the earth that was stored on that land arises. According to the plaintiff's statement in the plaint, the abchak land in suit used to be frequented by passers-by almost as if it were a public road. No question of possessory right can therefore attach to such property. We have to remember that title, there is none. The land lay vacant and people visiting the market passed over it. There was therefore no de facto possession of the plaintiff over the land. Order as to demolition of the roof cannot be sustained in the absence of a finding that the land over which the roof was built was the property of the plaintiff. It is true that the plaintiff has used a part of the wall, which he claimed as his and which has been found not to be his, for the purposes of supporting his own building. But if this user of the wall has given the plaintiff any possessory right at all, that possessory right must exist on those portions of the wall alone which support his buildings or beams. His possessory right cannot be extended, by any fiction of law, or as a matter of inference, over any other portion of the large wall, a portion only of which is in plaintiff's use. His claim therefore to have the roof built over the lane removed, cannot be sustained in any view of the case.
5. There remains the question of spouts. It appears that the water from the spouts will no longer flow over the surface of the lane, but will fall on the roof of the newly built room and will be drained off from that place. It has been urged that it is an absolute right of the plaintiff to let the water from his spouts fall on the land and that the defendant had no right to interfere. It is the decided opinion of both the Courts below that the suit is based in pure stubbornness on the part of the parties and that the actual inconvenience suffered by the plaintiff was insignificant. The question then is whether the fact that the plaintiff's spouts dropped water on the surface of the land will entitle him to insist on any building erected under the spouts being removed. The learned Judge in the Court below has found that the lane is the property of either Government or the Municipal Board. He has found that the plaintiff obtained from time to time the permission of the Municipal Board to erect his buildings. The utmost then that he can say is that the Municipality by allowing him to construct the spouts granted to the plaintiff a right of easement to discharge water from his roofs over Municipal land. If that be so the plaintiff cannot claim any higher right than that of the owner of a dominant heritage. It is common ground that the construction in dispute was made by the defendant with the permission of the Municipal Board. The Municipal Board would have a right as the owner of a servant heritage to make any arrangement they like so long as they did not thereby restrict the easement or render its exercise less convenient. The principle underlying will be found enacted in Section 27 of the Basements Act. It cannot be said that the right of dropping of water was a possessory right. The right might at the most be a right of easement acquired by grant and nothing else. If it be a right of easement, the law enacted in Section 27 of the Easements Act will apply in full force. If it did not, the plaintiff's position would be worse.
6. I am satisfied that there is nothing in this appeal which should induce this Court to interfere with the judgment of the learned District Judge. The appeal fails and it is hereby dismissed with costs which will include counsel's fees in this Court on the fhigher scale. Appeal dismissed.