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Ambica Saran Singh and ors. Vs. Debi Saran Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All436; 24Ind.Cas.91
AppellantAmbica Saran Singh and ors.
RespondentDebi Saran Singh and ors.
Cases ReferredRangachariar v. Municipal Council of Kumbakonam
Excerpt:
easements act (v of 1882), section 7 - right to discharge rain water from high land over low land--natural right. - - the learned judge says :i am not satisfied that the land on which the dalan has been built is the sahan of the plaintiffs. ' this contention seems, to me to be well-founded. the finding of the lower appellate court amounts to this that the plaintiffs' land lies on a higher level than the adjacent land occupied by the defendants, that the water which during the rains falls on the plaintiffs' land is discharged partly towards the east into a small pond which lies in that direction, and partly towards the north over the defendants' land into the river gomti, and that this right has been enjoyed by the plaintiffs for a large number of years......they were in possession and secondly, that their land being on a higher level the water from their land flows over the land in question and the construction of a dalan on it by the defendants obstructs the flow of the water.2. the court of first instance, holding that the land did not belong to the plaintiffs and that they had not been in possession within 12 years, dismissed the suit. off appeal the lower appellate court agreed with the first court as regards the plaintiffs' allegation as to the dalan having been built on a part of the plaintiffs' sahan. the learned judge says : 'i am not satisfied that the land on which the dalan has been built is the sahan of the plaintiffs. . . .3. . . the plaintiffs' possession over that land is not established.' he further finds that the evidence.....
Judgment:

P.C. Banerji, J.

1. The suit out of which this appeal has arisen was brought by the plaintiffs for possession of two plots of land, one lying to the north of their courtyard and the other to the south of it, and for the removal of constructions made on those plots of land by the defendants. We are not concerned with the southern plot of land in this appeal. The controversy in this appeal relates only to the plot lying to the north of the plaintiffs' courtyard. The plaintiffs put forward their claim in regard to this plot on two grounds : first, that the plot of land in dispute was part of their courtyard of which they were in possession and secondly, that their land being on a higher level the water from their land flows over the land in question and the construction of a dalan on it by the defendants obstructs the flow of the water.

2. The Court of first instance, holding that the land did not belong to the plaintiffs and that they had not been in possession within 12 years, dismissed the suit. Off appeal the lower Appellate Court agreed with the first Court as regards the plaintiffs' allegation as to the dalan having been built on a part of the plaintiffs' sahan. The learned Judge says : 'I am not satisfied that the land on which the dalan has been built is the sahan of the plaintiffs. . . .

3. . . The plaintiffs' possession over that land is not established.' He further finds that the evidence adduced proves that the rain water from the plaintiffs' house used to flow partly towards the east into a small pond and partly towards the north across the land in dispute on to the river Gomti and that the dalan in dispute obstructs the flow of the water towards the north.' He then holds that 'the defendants had no right to build the dalan outside their sahan and thereby to obstruct the flow of surplus rain water towards the north across the land in dispute.' The learned Judge made a decree directing the dalan to be removed and the land restored to its former condition, so as to admit of the free discharge of the rain water from the plaintiffs' house and sahan across the defendants' land towards the north.' He further found that the plaintiffs' land was on a higher level and that the rain water falling on their house and courtyard had been drained off towards the north 'from time immemorial, i.e., from not less than 25 or 30 years.'

4. The defendants have preferred this appeal and two contentions have been put forward on their behalf : first, that the plaintiffs had no right of easement inasmuch as there cannot be a prescriptive right for the drainage of rain water : secondly, that the degree directing the removal of the defendants' dalan is not justified, and that all that the plaintiffs could upon the findings of the Court below have obtained was a decree directing the defendants to make provision for the carrying off of rain water towards the north.

5. As to the second contention it is conceded by the learned Vakil for the respondents that the plaintiffs are only entitled to a decree directing the defendants to regulate the flow of the water, which falls on the plaintiffs' house and courtyard, towards the north. The contention on behalf of the appellants is supported by the ruling of the Bombay High Court in Bala bin Keshab Bava v. Maharu valad Nagu Patil 20 B. 788.

6. As regards the first point it is clear from the allegations in the plaint that the plaintiffs did not claim a right of casement. It is contended that what the claim is the natural right of the owner of land lying on a higher level to the flow of water naturally falling on such land and not passing in defined channels. That is the right which is described in illustration (1) to Section 7 of the Easements Act in the following terms : '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 laud to run naturally thereto.' This contention seems, to me to be well-founded. The plaintiffs, as I have said above, did not claim a right of easement nor has the Court below found that they have such a right. The finding of the lower Appellate Court amounts to this that the plaintiffs' land lies on a higher level than the adjacent land occupied by the defendants, that the water which during the rains falls on the plaintiffs' land is discharged partly towards the east into a small pond which lies in that direction, and partly towards the north over the defendants' land into the river Gomti, and that this right has been enjoyed by the plaintiffs for a large number of years. Such being the plaintiffs' right, it is a right not found- ed on prescription but what is regarded as a right ex jure nature, as observed by the learned Judges of the Madras High Court in Subramaniya Ayyar v. Rama-chandra Rau 1 M. 335. The learned Vakil for the appellants laid great stress on the decision of the same Court in Mahama-hopadyaya Rangachariar v. Municipal Council of Kumbakonam 29 M. 539, 16 M. L. J 582. The question discussed in that case does not, in my opinion, arise in this. In this case we have the fact, as found by the Court below, that the plaintiffs' land is on a higher level than the land of the defendants, and that the plaintiffs have a natural right of flow of the rain water which falls on their land towards the land of the defendants. So long as the defendants' land continues to be on a lower level than the land of the plaintiffs, the defendants are not entitled to obstruct the flow of the plaintiffs' water and the plaintiffs are entitled to discharge the rain water over the defendants' land.

7. This being so, the only question which remains is as to the form of the decree which should be passed in respect of the land in question. The claim for the demolition of the defendants' dalan cannot bo supported, but the plaintiffs are entitled to a declaration that they have a right to discharge the rain water falling on their land on to the defendants' land. 1 accordingly vary' the decree of the Court below by directing that an injunction be issued to the defendants restraining them from obstructing the flow of rain water falling on the plaintiffs' house and land towards the north and directing that the defendants do provide a suitable passage for the discharge of that water in the aforesaid direction within two months from this date. In the event of the defendants' failing to carry out this direction, the plaintiffs will be entitled to have it carried out under the orders of the Court. Having regard to the circumstances I direct that the parties do abide their own costs of this appeal.


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