Skip to content


Rameshwar Dayal Vs. B. Maharaj Charan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All28; 65Ind.Cas.643
AppellantRameshwar Dayal
RespondentB. Maharaj Charan and anr.
Excerpt:
easements act (v of 1882), section 43 - permanent change--additional burden on servient tenement--easement, extinction of. - .....to see upon what principle it has been decided that the statutory right which the plaintiff has as owner of house no. 2 to discharge his water into the drain of the defendant's house no. 3 has been extinguished. it is true that the plaintiff was a wrong doer when, having built on house no. 2, a new privy he connected that up with the drain which had hitherto carried water from (sic) privy alone in house no. 2 to house no. 3. the method by which he connected up the new privy with the old drain was in one sense permanent and in another sense not permanent, because it was capable of being blocked or cut away in a very short time. it is clear law that if a man has, for instance, a right to walk across a certain field, he does not lose that right of walking across that field merely because he.....
Judgment:

1. We are of opinion that the decree of the lower Appellate Court must be affirmed, because we are unable to see upon what principle it has been decided that the statutory right which the plaintiff has as owner of house No. 2 to discharge his water into the drain of the defendant's house No. 3 has been extinguished. It is true that the plaintiff was a wrong doer when, having built on house No. 2, a new privy he connected that up with the drain which had hitherto carried water from (sic) privy alone in house No. 2 to house No. 3. The method by which he connected up the new privy with the old drain was in one sense permanent and in another sense not permanent, because it was capable of being blocked or cut away in a very short time. It is clear law that if a man has, for instance, a right to walk across a certain field, he does not lose that right of walking across that field merely because he commences to drive across it in a carriage, that is, he is not penalized and deprived of his right of using the land by walking over it because he has asserted and wrongfully exercised the right-to pass over it in a carriage.

2. The remedy open to the owner of the servient tenement is to proceed against the person who claims the wrongful enlarged user and on his refusal to desist from his conduct to take proceedings for an injunction. At one time it was thought that the right to ancient light could be lost by pulling down a building which had acquired a right to lights and that the newly erected building did not have the privilege attending to the ancient lights in the previous building. That, however, is not law to day and indeed on this question of abandonment of ancient rights there have been several resent cases mainly relating to light and air. The case of Harris v. Flower & Son (1904) 91 L.T. 816; 74 L. J. Ch. 127; 21 T. L. R. 13 is a case in point on the question of abandonment.

3. Reliance has been plated upon Section 43 of the Indian Easements Act, but we question whether the permanent change referred to in this Section does not mean such a change as, for instance, the construction. of a building with 12 or 14 large windows in place of three or four smaller ones. That is a permanent change in the dominant heritage and the owner of the servient tenement cannot reduce the burden without interfering with what undoubtedly was prior rights of the owner of the building, namely, to have light and air to the smaller number of buildings. If, therefore, whatever steps the servient tenement can take must necessarily interfere with the lawful enjoyment of the original arrangement and ,the additional burden cannot be reduced, then his easement is extinguished. Here, however, the burden can be reduced without difficulty to its original limits. The connection between the new privy and the drain from No. 2 that passes into No. 3 can be blocked up or out away and the parties will, in all respects, be reverted to their original position as it was before the plaintiff wrongfully connected up the new privy with the old drain. We, therefore, think that the decree made by the Court of first instance which was affirmed by the lower Appellate Court was a proper decree and this appeal must be allowed. We accordingly set aside the decree of the learned Judge of this Court and restore that of the lower Appellate Court. We direct the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //