Shiv Dayal, J.
1. In pursuance of my order in Miscellaneous Civil Case No. 410 of 1971, Shri Jakatdar, learned counsel for the appellant and Shri R.K. Verma, learned counsel for the respondents, were heard again.
2. This second appeal arises from a suit for a permanent injunction to restrain the defendant from raising a wall on his own land and for its demolition in case the defendant erects a wall. The basis of the suit was that the plaintiff had acquired easement of eavesdropping from his house for the statutory period. The defendant resisted the suit. The trial Court found that the plaintiff had acquired a right of easement and passed a decree in favour of the plaintiff restraining the defendant from making any construction in any way so as 'to affect the flow of the rain water from the plaintiff's house towards his land in suit'. The rest of the plaintiff's claim was dismissed.
3. The plaintiff appealed. The learned Judge of the first appellate Court modified the decree of the trial Court and held that since the plaintiff had a right of easement, the defendant could not make any construction on the land on which the water drops from the plaintiff's eaves. In the result, he ordered a mandatory injunction for demolition of the wall constructed by the defendant 'so that the land in suit should remain an open piece of land as before'. He directed the defendant to demolish the wall within two months from the date of the judgment; otherwise, it would be demolished through the process of the Court at the cost of the defendant.
4. The defendant has preferred this second appeal from the decree of the first appellate Court. He did not prefer any appeal from the decree of the trial Court which means that he was satisfied with the decree which was passed by the trial Court.
5. In my opinion, the law on the point is clearly this. The servient owner is free to use the servient tenement in any way he chooses, subject to the only limitation that the use of the servient tenement is restricted by the existence of easement. In other words, the use of the servient tenement is restricted only to the extent which is necessary for the protection and enjoyment of such easement, but no further. The dominant owner has no right to restrict the use of the scrvient tenement except to the extent that his right of easement is protected. Therefore, merely because there is a right of easement to discharge water on the servient tenement, the servient owner is not disentitled to build on the servient tenement, provided that he makes necessary arrangement for receiving such water and discharging It on his own land. This view was also taken in Bala v. Maharu, (1896) ILR 20 Bom 788, where an almost identical question arose.
6. This law Is embodied in Section 27 of the Easements Act, the relevant part of which reads as follows:--
'The servient owner ......... is entitled,as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement, but he must not do any act tending to restrict the easement or to render its exercise less convenient.'
Applying that section to the present case, it must be said that the defendant bas a right to use the servient heritage in any way he chooses but the use must be consistent with the enjoyment of the plaintiff's easement of eavesdropping. And, the defendant must not do any act which would restrict the said easement or which would render its exercise less convenient.
7. The defendant, in the witness-box, clearly stated that he would make necessary arrangement for the discharge of the water from the plaintiff's eaves. He said that he would receive the water and discharge It on the road towards the east, and on the west in his own courtyard, and that this he would do In such a manner that the flow of water would not be obstructed, nor would there be any damage or dampness caused to the plaintiffs house.
8. The trial Court was, therefore, right in passing a decree in favour of the plaintiff in the terms that it did.
9. It appears that on instituting the suit, the plaintiff applied for a temporary injunction restraining the defendant from constructing a wall. The trial Court issued an ex parte ad interim injunction, but eventually vacated it. The defendant, therefore, constructed the wall.
10. The learned Judge of the first appellate Court has directed demolition of the wall. He thinks that the plaintiff has the right of dropping the water from his eaves on the particular point in the defendant's land. The judgment of the first appellate Court is in utter disregard to the express provisions of the law contained in Section 27 of the Easements Act.
11. The appeal must he allowed on the short ground that, although the plaintiff has the right of easement of discharging his water towards the defendant's land, that right does not extend to his insisting on the water dropping on a particular point on the defendant's land.
12. The appellant has said in paragraph 4 of the grounds of appeal in this Court:
'For, the claim by the respondent that the appellant should have no construction on the land in question at all is misconceived particularly because the appellant throughout maintained that he was making an arrangement for the flow of the water discharged from the eaves of the respondent and the trial Court did accept this contention of the appellant and directed that the flow of the rain water from the eaves of the respondent's house shall not be obstructed by the construction that was being effected by the appellant.'
13. The defendant in the witness-box also stated that he would make necessary arrangement for the discharge of the water from the plaintiff's house.
14. The contention for the plaintiff is that, unless an appropriate direction is given in the operative part of the judgment, the defendant's statement would remain a wishful thinking. In my opinion, this contention is right. The operative part of the judgment must contain an appropriate direction. Shri Jakatdar for the appellant fairly and candidly conceded and, in my opinion, the concession is quite right having regard to the above ground in the memorandum of appeal.
15. Shri Verma, learned counsel for the respondent, asked my attention to the operative part of the judgment in (1896) ILR 20 Bom 788, where, inter alia, the following direction was given:
'When the plaintiff applies to enforce the decree, the Court will determine what alterations, if any, should be made in the new building of the defendants.'
In my opinion, this direction is not necessary. It goes without saying that, if the appellant does not carry out the direction which is given in the operative part of the judgment and the plaintiff has to take out execution, the executing Court will naturally see all this.
16. Accordingly, the appeal is allowed, the judgment and decree of the first appellate Court are set aside and those of the trial Court are restored with the following modification. The defendant shall make necessary arrangement at his own cost for discharge of the rain water from the plaintiff's roof without affecting the construction of the plaintiff's house and roof, and to discharge it on another part of his (defendant's) own property. The defendant shall carry out this direction within four months from today. The respondent shall pay the appellant's costs in both the appellate Courts.