1. An issue was remanded by this Court in the following language under the provisions of Order XLI, Rule 25, Civil Procedure Code:
Whether the plaintiffs are entitled to any right of easement to flow water under the provisions of Clause (f), Section 13 of the Easements Act?
2. The facts of the case are stated in my judgment ordering the remand and need nob be recapitulated. The learned Subordinate Judge has answered the issue in the affirmative and exception has been taken to this finding.
3. It will be remembered that the case, as at first instituted, was based on acquisition of the right of easement by prescription. This case was changed, later on, and the right of easement was claimed under the provisions of Section 13, Clause (f) of the Easements Act. So the definite question, which I have to answer before me is, 'whether under the said provisions the plaintiffs are entitled to the casement?' This easement involves the flow of water through a permanent drain. The water is of two kinds, namely, rain water and sullage water coming out of a latrine The plan on the record will show that water from the courtyard of the plaintiffs and water from the latrine join and then flow into the drain which passes through the defendant No. 1's house. The drain through which the water flows is a masonry drain and is therefore an apparent one within the meaning of Section 5 of the Easements Act. The drain is continuous easement in so far as the flow of rain water is concerned. For the flow of rain water no act of man is needed. But so far as the flow of water from the latrine goes, it requires the act of man and to that extent the easement to flow such water is not a continuous easement. It would, therefore, follow that the plaintiffs have no right to flow of latrine water on foot of the provisions of Clause (f), Section 13 of the Easements Act.
4. The learned Subordinate Judge who heard the Appeal first and the learned Judge who decided the remanded issue, both quoted the case Bishambhar Nath v. Jagan Nath Prasad 29 Ind. Cas. 605. In that case a part of the house had been sold and the question arose as to flow of water. The learned Judges of this Court held that the drain was necessary for the enjoyment of a house. Evidently they were dealing with Clause (e) of Section 13 and not with Clause (f). There is no discussion on the point to be found in the judgment as reported and I cannot take the case as an authority on the question now before me.
5. Reference has been made to illustration (h), Section 13. There it is stated that the owner of the transferred house is entitled to the benefit of all the gutters and drains common to the two houses. If we accept the wide language used in the illustration we really vary the rule of law enacted in the main section itself. Only such easements are allowed under Clause (f) as are continuous. If the easements be not continuous within the meaning of Clause (f). it is difficult to see how the benefit of all the gutters and drains mentioned in Clause (h) of the illustration can be enjoyed in respect of matters which require an act of man for enjoyment. I am therefore of opinion that illustration (h) cannot be accepted to modify the law itself. If the meaning of the enactment itself were doubtful, a reference to the illustration in order to clear the meaning, would have been justified. But, if there be any conflict between the illustration and the main enactment, the illustration must give way to the latter.
6. I hold that the plaintiffs have established their right to easement for the flow of rain water alone and not to the flow of any latrine water from their house.
7. I need not repeat that the present case has nob been fought on the ground that the easement was a necessary one and no evidence on that point was led by the parties. There is however a statement of opinion in the appellate judgment which would go to show that it is possible for the plaintiffs to open a drain to carry off the latrine water, though the process may involve some trouble and expense. But as I have said, this is a question which was not raised in any of the Courts below and has not been raised before me.
8. The result is that the appeal is partly allowed. The plaintiffs respondents' right to easement is hereby restricted only to the flow of rain water. Having regard to the partial success of the parties I order that they will bear their own costs throughout.