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Sampuran Singh S/O Kahla Singh Vs. Arjan Singh S/O Mangal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 311 of 1959
Judge
Reported inAIR1961P& H414
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 - Order 6, Rule 2 - Order 7, Rule 7; Easements Act, 1882 - Sections 7 and 13
AppellantSampuran Singh S/O Kahla Singh
RespondentArjan Singh S/O Mangal Singh and ors.
Appellant Advocate D.S. Nehra, Adv.
Respondent Advocate Tirath Singh, Adv.
DispositionAppeal allowed
Excerpt:
..... - it was pleaded by the plaintiff that he had acquired a right of easement with regard to the natural water as well as the sullage water for a period of more than 20 years. on the pleadings of the parties, the following issues were framed :1. whether the suit is bad for misjoinder of parties? the learned single judge reversed the decision of the courts below and dismissed the plaintiff's suit according to the learned single judge, the plaintiff had not pleaded a case of easement under section 7 of the easements act and he having failed to prove the acquisition of an easement as pleaded for over a period of twenty years and also a right of easement under section 13 of the easements act, he was not entitled to rely on the easement available to him under section 7 of the act. section 7..........arising from its situation. illustration (1) the right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.' the learned single judge was also further of the view that illustration (i) ruled out the right of the plaintiff to flow the natural water through a defined channel. on a certificate being granted, the plaintiff has preferred the present appeal under clause 10 of the letters patent 2. after hearing the learned counsel for the parties, we are of the view that this appeal must succeed. it is clear from the pleadings of the parties that the plaintiff did set out the case in the alternative that the only way in which he can.....
Judgment:

Mahajan, J.

1. This appeal under Clause 10 of the Letters Patent arises out of a suit filed by Sampuran Singh against Arjan Singh and others for mandatory and perpetual injunction restraining defendant No. 1 from obstructing the natural flow of water through his house. The other defendants are merely pro forma defendants. It was pleaded by the plaintiff that he had acquired a right of easement with regard to the natural water as well as the sullage water for a period of more than 20 years. In the alternative, it was pleaded that so far, the natural water is concerned, he was entitled to easement of necessity. On the pleadings of the parties, the following issues were framed :

1. Whether the suit is bad for misjoinder of parties?

2. Whether the plaintiff is not entitled to bring this suit on account of laches and acquiescence on his part?

3. Whether the water of the house of the plaintiff and defendant No. 2 passed through the house of Arjan Singh defendant No. 1 by a drain situated towards the western side of his house and the plaintiff has acquired a right of easement by way of prescription?

4. Whether Arjan Singh defendant No. 1 has closed the drain passing through his houseabout a month and a half before the institution of the suit?

5. Whether the plaintiff is, by way of easement of necessity, entitled to pass thewater of his house through the house of Arjan Singh defendant No. 1 by a drain? The only issues, which are relevant for the present purposes, are issues Nos. 3, 4 and 5. The trial Court decreed the suit in its entirety and on appeal the learned District Judge, Sangrur, upheld the decision of the trial Court with a slight modification, the modification being that the plaintiff was entitled to pass the natural water from his land or to the land belonging to the defendant, but not the sullage water. On appeal to this Court, the matter came up before Mehar Singh, J.

The learned Single Judge reversed the decision of the Courts below and dismissed the plaintiff's suit According to the learned Single Judge, the plaintiff had not pleaded a case of easement under Section 7 of the Easements Act and he having failed to prove the acquisition of an easement as pleaded for over a period of twenty years and also a right of easement under Section 13 of the Easements Act, he was not entitled to rely on the easement available to him under Section 7 of the Act. Section 7 of the Easements Act is in these terms :

'7. Easements are restrictions of one or other of the following rights (namely):

(a) * * * *

(b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Illustration (1) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.'

The learned Single Judge was also further of the view that illustration (i) ruled out the right of the plaintiff to flow the natural water through a defined channel. On a certificate being granted, the plaintiff has preferred the present appeal under Clause 10 of the Letters Patent

2. After hearing the learned counsel for the parties, we are of the view that this appeal must succeed. It is clear from the pleadings of the parties that the plaintiff did set out the case in the alternative that the only way in which he can pass the natural water from his land was over the defendant's land. There is no other way for the escape of this natural water. No doubt the plaintiff in the plaint used the word 'easement of necessity' but that will not, in my opinion, make any difference.

It is well settled that in pleadings only facts-have to be pleaded and not the law. On given facts whether the case falls under Section 13 or Section 7 of the Easements Act is a question, which cannot be said to be outside the jurisdiction of the Courts merely because only Section 13 was relied on and not Section 7. On the facts, the matter can admit of no doubt. The evidence led in the case proves beyond doubt that the only course for the natural flow of water was from the plaintiff's land over the defendant's land.

This evidence was accepted by the Courts below and the defendant's evidence to the contrarywas held unworthy of credit. The spot was inspected by the trial Court as well as by the learned District judge. The trial Court in para 5 of the inspection report states as follows :

'It was found at the spot that the water of the streets which reached point 'c' could only he drained out through the house of Arjan Singh. I found that there was an outlet in the wall of Arjan Singh through which the water would naturally have passed. 'There is no other way through which the water of the above mentioned houses can flow.' It is only through the house of Arjan Singh that it can flow.'

To the similar effect are the observations of the learned District Judge in his inspection note. Therefore, on the evidence, no other conclusion is possible. That being so, the case clearly falls within the ambit of Section 7 and the plaintiff is entitled to the relief claimed in appeal. It has been found as a fact that the defendant had obstructed the flow of this natural water. This being a finding of fact is not open to attack in second appeal.

3. So far as the question that the plaintiff has failed to prove his easement for a period of more than 20 years is concerned, both the Courts have found against him and that is a matter, which was not agitated by the learned counsel for the appellant before us. The error in the learned Single Judge's judgment has crept in for the reason that he took the view that as the water was claimed to flow through a defined channel, the plaintiff would not be entitled to the benefit of Section 7 in view of illustration (i) to the section.

According to the learned Judge, it would have been available to him if the water had sprawled on to the defendant's land in an undefined manner naturally. This conclusion is not warranted from the correct reading of the provisions of Section 7. It is well-settled that illustrations to a section do not modify the meaning and the true import of the section. They are merely illustrative of the provisions of the section. Moreover, in the present case the real meaning of illustration (i) has been misunderstood.

It only connotes that if there is a defined channel and the water can get through that channel, it must not be allowed to sprawl on the adjoining land. But if there is no defined channel from which the water can flow, then the land which is naturally situate at a lower level has to take the burden of the flow of that water. This provision has merely recognized the law of nature for otherwise if the natural flow of water is obstructed, it can cause havoc to the lands from which it naturally must drain out. In the present case there is a defined channel and therefore the water could flow through it but for the fact that it has been blocked by the defendant.

That being so, we are constrained to hold that the learned Single Judge was in error in holding that on the facts found by the Courts below the plaintiff's case did not fall within the ambit of Section 7 and that he was not entitled to relief thereunder. The learned Single Judge also has observed that the natural state of the land ceased as soon as the land was enclosed and made a part of thehouse by defendant No. 1 and the streets were paved. It is in evidence that these factors have not altered the level of the land. This evidence has been totally ignored. Therefore, it must be held that there is no basis for this conclusion.

In view of the fact that the lie of the land is such that the natural flow of water from the land of the plaintiff must pass on to the land of the defendant, we are of the view that the decision of the learned District Judge was correct. We would therefore set aside the decision of the learned Single Judge and restore that of the learned District Judge. In the circumstances of the case, there will be no order as to costs.

Khosla, C.J.

4. I agree.


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