A.H. Khan, J.
1. The facts leading to this second appeal in short are that the plaintiff brought a suit against the Agar Municipality on the allegations that the municipality had asked him to close two spouts of his house, the water of which flowed over the municipal land, that the Municipality is not justified in making that demand, because he enjoys the prescriptive right of easement in respect of these spouts. The plaintiff prayed for a permanent injunction against the Municipality
2. The defendant Municipality resisted the suit on the ground that the spouts in question were newly constructed and that the plaintiff possessed no right of easement about them. It was also pleaded that the suit was not maintainable. The Civil Judge, Agar decreed the suit and issued a permanent injunction. An appeal was filed by the Municipality, Agar, before the Additional Dist. Judge, Shajapur, who allowed it on the ground that the right of easement under Section 15 of the Easements Act was not available to a person who commits public nuisance, and, dismissed the suit. Aggrieved by this decision the plaintiff has filed this appeal.
3. The learned counsel for the appellant has urged that there was no plea of public nuisance in the written statement and that there is no finding of any Court on this point. On referring to the record I find that no plea was taken in the written statement that the water flowing from the spouts on the municipal land constituted public nuisance. There was no issue on the point and no evidence has been led by the parties either. In the circumstances the appellate Court erred in raising the plea of public nuisance by itself and resting its decision on it. The Court seems to think that no right of easement can be acquired by committing any nuisance. This view is wrong. In Salmond on Torts (11th Edition) page 261, it is said that
'after a private nuisance has been continuously in existence for twenty years, a prescriptive right to continue it is acquired as an easement appurtenant to the land on which it exists. On the expiration of this period the nuisance becomes legalised ab initio, as if it has been authorised in its commencement by a grant from the owner of the servient land.'
In this view of the matter, if water from the spouts of the plaintiff runs over the Municipal land and has been running on the Municipal land for over twenty years, there is no doubt that the plaintiff has acquired a prescriptive right.
4. Mr. T.N. Saxena, learned counsel for the respondent Municipality has referred to a treatise on Eastment and Licences by K.N. Joshi (Third edition) page 400. He contends that the right to create a public nuisance cannot be acquired by prescription. This contention so far it relates to public nuisance is correct and I have no hesitation in saying that no public nuisance can be legalised by prescription; but in the case under consideration there is neither a plea of public nuisance nor as a matter of fact public nuisance has been proved.
5. Mr. T.N. Saxena further contends that the suit does not lie because the Municipality had given a notice to the plaintiff under Section 124 of the Gwalior Municipal Act of Samvat 1998 and that if the plaintiff was aggrieved by it, his remedy was to file an appeal under Section 144 of the Municipal Act. He urges that Section 148 of the Municipal Act bars such a suit. We must, therefore, now examine the notice given by the Municipality to the plaintiff. In the first place, the notice does not say under what section it was given. The real position as is revealed from the record is that the Municipality did not want the plaintiff to discharge water from his spouts on the municipal land. Secondly, the trial Court has held that the present case is not covered by Section 124 of the Municipal Act. The real dispute between the parties is that while the plaintiff asserts that he has a prescriptive right to let his water flow on the Municipal land, the Municipality denies it & has peremptorily asked the plaintiff to close his spouts. In the circumstances the controversy is whether a right of easement exists or not, and I agree with the trial Court that such a case is not covered by Section 124 of the Municipal Act.
6. For reasons stated above I allow the appealand setting aside the judgment and decree of thelearned Additional Sessions Judge, I confirm thejudgment and decree of the trial Court with coststhroughout to the plaintiff.