1. This is defendants second appeal in a suit by the respondent for a permanent injunction against disturbance of an easement. The plaintiff-respondent is the owner of a house to the south of which is situate the house of the appellants. Between the two houses lies a lane ABCD as shown is the plaint map. This lane belongs to the defendant-appellants. The respondent stated that he and his predecessors-in-title had always been dropping water of the eaves of his house on this lane for the last hundred years or so as of right and as an easement.
In 1948-49 the plaintiff reconstructed the upper storey of his house keeping intact the ground floor. On 9th April 1949 the defendants obstructed the plaintiff from putting tin-sheets over the root of his house. Till July 1948 when the plaintiff started the reconstruction of the upper storey of his house, the roof of his house had two slopes, one towards the south and the other towards the north. The water flowing by the southern slope fell over the lane ABCD.
The plaintiff, therefore, claimed a permanent injunction- restraining the defendants from obstructing the plaintiff from putting the corrugated iron sheets roof over his house and also from obstructing the (low of eaves-water from that roof upon the lane ABCD. The suit was resisted by the defendants on the ground that the house of the plaintiff had no roof at all for at least twenty years and so no water of any eaves dropped either to the north or to the south. The easement, if any, was not enjoyed by the plaintiff and so the suit must be dismissed.
2. The trial Court held that the plaintiff had failed to allege all the necessary ingredients of an easement right and also failed to prove that he had acquired the easement of eaves-dropping for the southern wing of the roof of the second storey of his house. The trial Court also held that the plaintiff had increased the height of his new house and had thereby increased the burden of easement.
So the easement was extinguished under Section 43 of the Easements Act. The trial Court, therefore, dismissed the suit. The lower appellate Court came to the conclusion that the plaintiff had pleaded his right of easement of eaves-dropping and that he had proved it. It, therefore, held that the plaintiff had acquired a right of dropping water of the eaves of his 1 1/2 storeyed roof on the lane ABCD as an easement by prescription.
Till 1948-49 the house of the plaintiff had 1 1/2 storeys, but the height has now been raised to 2 1/2 storeys. The water of the eaves had been falling till July 1948 from over a height of 1 1/2 storeys, but now it would fall from over the height of 2 1/2 storeys. The lower appellate Court, therefore, thought that under Section 23 of the Easements Act this was an alteration of the place of enjoyment; and plaintiff could do so only if he did not, thereby, increase the burden of the easement.
But there was no evidence whether the alteration, that is, the raising of the house to a greater Height had increased the burden. The lower appellate Court thought that under Section 43 of the Easements Act a material increase in the burden of the easement by a permanent change in the dominant heritage may extinguish the easement right itself.
The Court remained under the impression that the velocity of the water falling from a greater height would be greater than the velocity of the water which fell over the roof of the old house of the plaintiff; and, therefore, observed that if the plaintiff so arranged that the water would be brought to the level of the former height of his eaves and then would fall on the land of the defendants with the same velocity as it used to fall before 1948-49 he might avoid imposing, additional burden on the lane ABCD.
The lower appellate Court, therefore, set aside the decree of the trial Court and ordered that it be declared that the plaintiff had acquired a right of easement to drop water on the lane ABCD of the defendants through the eaves of the southern wing of the roof of his former 1 1/2 storeyed house as it was till July ,1948. The relief of permanent injunction was refused to the plaintiff, but this declaration has been granted. The defendants have filed this second appeal and contended that no declaration was asked- for in the plaint and that there was no evidence of an easement as of right and, therefore, the plaintiff's suit should have been dismissed, if an injunction could not have been granted.
3. Whether there was an easement of dropping water from the eaves on the defendants' land or not is a question of fact and the finding given by the lower appellate Court in tin's respect is binding on me. The Court below, however, could not decide whether raising the height of the house would increase materially the burden of the easement on the defendants' land, and, therefore, passed a declaration as stated above. The first question before me is what is the actual height of the new building and by how many feet the house has been increased in height.
In my opinion, the portion marked Section AB in the map attached to Ex. P-3 (application to the Municipality for permission to construct a house) correctly shows the increase in the height of the plaintiff's house which has been sanctioned by the municipality and according to which the present building has been constructed. It will appear that formerly the height was 10' plus 3' equal to 13'. Now it has gone to 10' plus 9 1/2' plus 4' equal to 23 1/2'.
This map is on page 63 of the paper-book and would show that there has been an increase of 10 1/2 feet in the height of the house; and, the simple question before the learned lower appellate Court was whether merely increasing the height of the house can it be presumed that there has been a material increase in the burden on the servient tenement? Both the learned Counsel have argued this point before me and I find that there is no apt Indian ruling on the point. I have, therefore, looked up the earliest English rulings which, in my opinion, deal with this point,
4. The first case is Thomas v. Thomas, (1835) 2 Cr M & R 34 (A). The head-note is :
'Where a party has a right to have the droppings of rain fall from his wall upon the premises of another, the right is not destroyed by his raising the height, of the wall.'
During the course of arguments in this case the Counsel had argued that
'if the wall is altered in height or extent, the right claimed ceases to be what it was.'
Alderson, B. repelled this contention by saying:
'The only difference is, that since the alteration the drops have to fall from a greater height. How can that be in any decree prejudicial to the defendants?'
This case had teen followed in 1872 in Harvey v. Walters, (1873) 8 CP 162 (B). The head-note is :
'The plaintiff was the owner of certain premises, the eaves of which projected over adjoining land of the defendants, and had become entitled by length of user to have the rain-water drop from such eaves on to the defendant's land. The plaintiff in rebuilding his premises carried the wall abutting on defendant's land to a slightly greater height than before, and consequently raised the height of the eaves from the ground to the same extent: Held, that in the absence of any evidence that a greater burden was thrown on the servient tenement by the alteration, the easement was not thereby destroyed, and the plaintiff was entitled to the right of eavesdrop from the premises as altered.'
Grove J. in delivering the judgment of the Court observed :
'It is difficult to see hew the mere raising of the eaves, which would, if anything, cause the water falling from them to become more dispersed, could affect injuriously the defendant's property. No real difference was pointed out to us in the effect of the slight raising of the, height of the eaves. It did not appear that any greater burden was thereby cast upon the servient tenement, and in the Civil Law it was considered that the raising of the eaves diminished instead of increasing the burden of the servitus in the passage cited by Mr. Field.'
These rulings have been followed in Indian Courts also A Division Bench (Sir Basil Scott, Kt. C. J. and Mr. Beaman J.) of the Bombay High Court in Mulia Bhana v. Sundar Dana, ILR 38 Bom 1: (AIR 1914 Bom 243) (C), laid down that:
'If a man has acquired an easement from a projection of his eaves to a fixed extent over his neighbour's land, he can raise the height of those eaves so long as he docs not throw an increased burden on the servient tenement.'
This case will have to be distinguished from other cases which have been cited by the Courts below, e.g. in Damodar Das v. Tilak Chand, 13 All LJ 791: (AIR 1915 All 416) (D), it was found that:
'The defendant had a right to discharge water from his thatched roof on to the plaintiff's land. He pulled down his house and built a three storeyed pukka house with spouts on his roof to discharge water on the plaintiff's land. Held, that the burden on the plaintiff's land was increased within the meaning of Section 23 of the Easements Act'.
It was held in this case that the spouts clearly threw an additional burden on the servient heritage. In the first place double the quantity of water fell upon I it. Formerly the roof of the defendant's house was a sloping roof and half of the water fell in one direction and the other half fell in another direction. Then it was changed into a flat roof and the whole of the water was discharged through five apertures and fell from a greatly increased height on to the land below it. Consequently it was held that an additional burden was placed upon the plaintiff's land. It was observed that if the defendant wished to discharge his water on that land he must so arrange that there was no addition to the burden which the servient heritage bore.
5. The facts in Suresh Chandra v. Jogendra Nath, AIR 1920 Cal 268 (E), were that the defendant, the owner of the hut having eaves 8 feet from the ground hanging over plaintiff's land replaced it by a two storied building having a cornice 22 feet from the ground with the result that accumulated water came down with greater force. It was, therefore, held that an additional burden had been imposed upon the plaintiff's land. The facts in this case can also be distinguished.
Instead of the water coming down from the eaves of the tiled hut the defendant had encroached on the super incumbent portion of the plaintiff's land by making the cornice and the string course at two places. It was also found that the accumulated water trickled down from the Cornice from a height of 22 feet and consequently with greater force than the water which formerly came, down from a height of 8 feet only.
Therefore, it was held that the cornice had, to a certain extent, created an additional burden on the plaintiff's land. In the present case there is neither spout nor cornice and there is no encroachment on the land of the defendants.
6. Then there is the case of Keshri Sahay v. Hit Narayan, AIR 1920 Pat 689 (F). In this case the owner of the dominant tenement had the right to let the rain water from the roof of his house drop from the eaves on to the roof of the servient tenement from a distance of 7 feet and subsequently he raised the height of his roof to about 21 feet from the roof of the servient tenement, and, instead of allowing the water to drop from the eaves he poured it down through pipes.
It was held that the burden on the servient tenement had increased and that therefore the easement was extinguished. The question was not of increase in the height alone but the mode of enjoyment was also radically altered. In other words, instead of allowing the water to drop from the eaves, the water was being poured down through pipes and this feature distinguished that case from the present case. All these cases, except the Bombay case, seem to follow the dictum laid down in 1725 in Reynoids v. Clarke, (1725) 2 Ld Raym 1399 (G), wherein it has been held that:
'The occupier of a house who has a right to have the rain fall from the eaves of it upon another man's land, cannot put up spouts to collect that rain and discharge it upon such land in a body.'
It is significant that these cases did not deal with the question of height alone and therefore are inapplicable to the facts of the present case.
7. In Karam Ilahi v. Ghulam Mustafa, AIR 1927 Lab 492 (H); the facts were that there was parnala or a water-spout on the roof of the defendant's house to discharge water on to the plaintiffs land. The defendant raised the height of the roof and along with it that of the water-spout by about 2 1/2 or 4 feet. It was held by Zafar Ali, J. in this case that no additional burden was thrown on the servient tenement and the easement was not destroyed.
In this case both the rulings in (1873) 8 CP J62 (B) and (1835) 2 Gr M & R 34 (A), were followed. The lower appellate Court in this Lahore Case had held that a fall from 10 to 12 feet was surely a heavier burden than a fall from 7 1/2 feet, the admittedly original height of the parnala; but that this increase could be easily remedied by covering up the parnala with tin or bricks so that the water may fall exactly on the place where it used to full and the additional height may not in any way increase the burden of the servient tenement.
It was said to be the most equitable course to adopt in that case so that the defendant may continue to enjoy his easement without extra burden on the plaintiff. This decision of the District Judge appeared to His Lordship to be equitable and just and therefore holding that no additional burden was thrown on the servient tenement and the easement was not destroyed, the appeal was dismissed.
8. Gale at page 259 of his Treatise on the Law of Easement (1950 edition) succinctly lays down the rule on the point thus :
'The right of eaves-droppings will not be lost by raising the house. The occupier of a house who has a right to have the rain full from the eaves of it upon another man's land cannot by spouts discharge it upon such land in a body.'
A review of all the cases bearing on the point leads me to the conclusion that this statement is correct and does not need any modification.
9. It is, of course, true that the declaratory decree passed by the Additional District judge in the present case was neither asked for, nor solves the problem. It is quite meaningless. The learned Additional District Judge could have passed a decree in the form passed by the District Judge in the Lahore Case alluded to above. But he had not followed that course. In fact, his decision on the point of additional burden is too vague to commend itself for acceptance.
The learned lower appellate Court will have to make up its mind whether it is a case of mere increase in the height of the eaves; or whether there is something, besides the height, which may contribute to constitute additional burden on the servient tenement. The trial Judge in para 14 of his Judgment (page 36 of the paper-book) comes to the conclusion that there has been an increase in the width of the southern portion of the roof and the area of the eaves on that side.
The learned Additional District Judge has not given any finding on this point, which in my opinion, is material in the case. If the evidence is insufficient, he can ask the parties to adduce additional evidence on the point, if he, in the interests of justice, requires it. He can himself frame an issue regarding the additional burden and ask the parties to adduce evidence; and, then, either grant the relief, asked for, or refuse it.
10. I would, therefore, allow this appeal, setaside the decree of the Additional District Judge,after confirming the finding that the plaintiff-respondent had acquired a right of easement to drop waferon the lane ABCD of the appellants through the eavesof the southern wing of his roof of former 1 1/2storeyed house; and would remit the case to the lowerappellate Court for disposal of the appeal in thelight of the observations, made above. I pass noorder as to costs.