1. This is a judgment-debtor's appeal arising out of execution proceedings. The parties are neighbours and own adjoining houses. About the year 1899; the defendant began to build a wall and the plaintiff apprehended that by its construction it would block among other things a water spout on the second storey. He instituted a suit claiming an injunction restraining the defendant from blocking this water spout. It is unnecessary to refer to the other reliefs which were claimed in that suit. The suit resulted in a compromise dated the 5th of January, 1900, and it is really the ambiguity of this compromise which is the cause of the dispute on the present occasion. Under that compromise it was provided that the water spout of the rasoi khana (kitchen) should be continued as previously and that the defendant would not interfere with it in any way.
2. Some years afterwards the plaintiff-decree holder began to use this rasoi khana as a room, where, in the words of the learned Munsif, 'water was stored, where utensils were cleaned, and for washing hands after the meals and occasionally for bathing purposes'. The defendant, on this, blocked the water spout totally. The plaintiff-decree holder applied for execution of the decree asking the Court to get the obstruction removed. The Court of first instance came to the conclusion that the plaintiff was not entitled to alter the nature of the water that was to flow through the water spout. It remarked 'If this was not the kind of water that flowed at the date of the compromise, the compromise cannot be enforced'.
3. It is apparent that the learned Munsif took an extreme view and ignored the provisions of Section 23 of the Easements Act, under which a dominant owner may from time to time alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. The mere alteration of the kind of water did not deprive the plaintiff of his right of easement unless an additional burden was cast on the servient heritage.
4. The lower Appellate Court has taken the other extreme view. It came to the conclusion that the reference to the rasoi khana was merely for the purpose of identification of the drain and so long as the water spout and us position were maintained, the quality and quantity of water that passed through it on the defends ant's land were wholly immaterial. If the lower Appellate Court's view were to be upheld the result would be that the plaintiff would be entitled to discharge any kind of dirty water through the spout although the right of easement which he might have acquired was to flow a particular kind of clean water. When a person acquires a right of easement for the outlet of water it may be of a limited kind. Its extent and mode of enjoyment may be restricted. He would, therefore, not be ordinarily allowed to increase the extent or alter the mode of enjoyment so as to cast an additional burden on the servient heritage. We may refer to the case of Gawkwell v. Russell (1858) 26 L.J. Ex. 34 at p. 36 : 112 R.R. 912 where Pollock, C.B., remarked 'where a party h9 a, limited right of this kind, and exercise3 that limited right in excess, so as to produce a nuisance, the only remedy, and the only way whereby the party can protect himself, is by stopping the whole'. Similarly Aldarson, B., remarked 'If a man has a right to send clean water through my drain and chooses to send dirty water, every particle of the water ought to be stopped, because it is all dirty.'
5. In our opinion the decision of this case turns on the interpretation of the compromise entered into between the parties. We think that the parties intended that the right of easement which the plaintiff had been enjoying at the time of the compromise should be maintained and not interfered with.
6. The Courts below unfortunately have not found the exact extent of the right enjoyed by the plaintiff at that time, nor have they found whether the proposed alteration of it amounts to an additional burden. We, therefore, think that before disposing of the appeal finally it is necessary to have findings on the following issues:
(1) What was the extent of the right to flow water through this water spout enjoyed by the plaintiff before the date of the compromise?
(2) Whether the proposed alteration of the enjoyment will impose any additional burden on the servient heritage?
7. As the case has not been approached from this point of view we think it proper that the parties should be allowed to adduce additional evidence in this case on these two issues. We, accordingly, send down the above-mentioned issues to the lower Appellate Court which will take additional evidence and return the record with its findings within three months. Ten days will be allowed for filing objections.
8. On receipt of the finding the following order was passed:
We, accordingly, allow this appeal in part and direct that the judgment-debtor shall remove the obstruction provided that the decree-holder gives an undertaking that the room will be used as a kitchen and not as a bathroom. The parties will bear their own costs throughout these proceedings.