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Kedar Nath Vs. Sohan Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All328; 25Ind.Cas.405
AppellantKedar Nath
RespondentSohan Lal and ors.
Excerpt:
easements act (v of 1882), section 15 - user--interruption--period of 20 years--period prior to interruption, whether can be added. - - it was necessary for the defendants to show that the right of easement claimed had been peaceably and openly enjoyed without interruption for a period of 20 years. 'of course there is an observation in the judgment of the hon'ble high court that the plaintiff had failed to prove the flow of water for 20 years. it may have been so then, but some 17 years have now gone by and the deficiency, if there was any, has been amply made good......the defendants from causing water to flow through the plaintiff's premises. the defence was a right of easement by prescription. it was necessary for the defendants to show that the right of easement claimed had been peaceably and openly enjoyed without interruption for a period of 20 years. the court of first instance decreed the plaintiff's claim. the lower appellate court reversed the decree of the court of first instance holding that the defendant had a right of easement. the learned judge of this court held that the decision of the lower appellate court was a finding of fact and dismissed the appeal.2. no doubt so far as the decision of the lower appellate court rested on a finding of fact, it is binding on this court in second appeal. we find, however, that in the year 1894.....
Judgment:

1. This appeal arises out of a suit in which the plaintiff claims an injunction to restrain the defendants from causing water to flow through the plaintiff's premises. The defence was a right of easement by prescription. It was necessary for the defendants to show that the right of easement claimed had been peaceably and openly enjoyed without interruption for a period of 20 years. The Court of first instance decreed the plaintiff's claim. The lower Appellate Court reversed the decree of the Court of first instance holding that the defendant had a right of easement. The learned Judge of this Court held that the decision of the lower Appellate Court was a finding of fact and dismissed the appeal.

2. No doubt so far as the decision of the lower Appellate Court rested on a finding of fact, it is binding on this Court in second appeal. We find, however, that in the year 1894 the predecessor-in-title of the defendants brought a suit claiming that the flow of the water had been interfered with by the present plaintiff or his predecessor-in-title. It is true that in the main the plaintiff in that case rested his claim on his own ownership of certain land as entitling him to discharge the water. The Court of first instance held against him. On appeal he urged that even if he was not the owner of the property, he had a right of easement. The lower Appellate Court confirmed the Court of first instance and further held that enjoyment had not been proved for a sufficient period to establish a right of easement. The decision was affirmed by the High Court.

3. It is absolutely clear to us that in 1894 and during the entire period during which that litigation was proceeding, that is up to the 3rd of July 1896, the defendant or his predecessor-in-title was certainly not 'quietly, peaceably and without interruption' enjoying the right he claims. The learned Subordinate Judge says: 'Of course there is an observation in the judgment of the Hon'ble High Court that the plaintiff had failed to prove the flow of water for 20 years. It may have been so then, but some 17 years have now gone by and the deficiency, if there was any, has been amply made good.' We need hardly point out that if the user is interrupted, it is necessary to show a further full period of 20 years in order to establish a right of easement under Section 15 of the Easements Act. It is impossible to add on to the period of user proved any time prior to the interruption.

4. We must allow the appeal, set aside the decree of this Court and the lower Appellate Court and restore the decree of. the Court of first instance with costs.


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