N.H. Bhatt, J.
1. This is a second appeal by the original defendant of the Civil Suit No. 125 of 1971 filed by the respondents-plaintiffs in the court of the Civil Judge (J.D.) Gondal, who was pleased to decree the plaintiff's suit. In the- Civil Appeal No. 60 of 1974 filed by the present appellant-original defendant, in the District Court at Rajkot, the learned Assistant Judge at Gondal was pleased to substantially confirm the decree, but modify it a little in respect of some detail. Hence the original defendant has preferred the present second appeal.
2. The plaintiffs had filed the aforesaid suit for a mandatory injunction directing the defendant-appellant to remove the construction made by him touching the southern wall of the plaintiffs' eastern house to the extent of 10' from east to west because the said construction interfered with the plaintiffs' right of dropping eaves on the defendant's property. The learned trial Judge had also issued a perpetual injunction restraining the defendant from obstructing the discharge of rain water from the eaves of the plaintiffs' eastern house towards the south in the property of the defendant to the extent of 10' east to west. The learned appellate Judge directed the removal of that much construction which obstructed projection of eaves of the roof of the plaintiffs in the length of 4' covering the length of southern wall within the land of the defendant with a view to enable the plaintiffs to project their eaves and to discharge water of their eaves on the property of the defendant.
3. The position of the houses of the parties is no longer in controversy. The plaintiffs had purchased that property in the year 1944 as per the sale deed, Ex. 45. The vendors were the trustees of the Swaminarayan Temple at Gondal, who had retained with them the defendant's present property, which was purchased by the defendant on 28-6-67 as per the sale-deed Ex. 62. Ever since the purchase, the eaves of the plaintiffs were protruding beyond their wall and the rain water used to fall on the defendant's land. The plaintiffs alleged that they had acquired this easement right pursuant to the deed and also pursuant to the continuous enjoyment of that right uninterruptedly ever since 26-10-44 by prescription also. They stated that the defendant had put up a structure after purchasing the property and while doing so, he had attempted to remove the eaves of the plaintiffs in the disputed land, of 10'. He was served with a telegraphic notice and also a registered notice, but he ignored the same and high-handedly removed the eaves, which were projecting on his land. He constructed a cement concrete beam just in front of the wall and proceeded ahead with the construction of a terrace above the said beam. The plaintiffs, therefore, instituted the suit to get a declaration of their right and for a mandatory injunction to get removed the obstruction caused by the defendant.
4. Both the courts below have found, as a matter of fact, that ever since 26-10-44 when the plaintiffs had purchased the property, they were having their eaves for the purpose of discharge of rain water. Both the courts below also have held that this was being done as of right, as an easement and without any obstruction or hinderance from anyone, including the predecessors-in-title of the defendant. This being essentially a finding of fact cannot be interfered with by me.
5. Mr. Modi, the learned advocate for the appellant, however, urged that the easement rights that might be there in old times, had come to be lost when the trustees of the Swaminarayan Temple purchased the property now with the plaintiffs and also retained with them the property now with the defendant. This cannot be gainsaid. However, after those trustees sold the house now with the plaintiffs, a right would start accruing. Full 20 years' period had passed by and the eaves continued to project and drop rain water from the roof of the plaintiffs and on the property now with the defendant. Mr. Modi, however, urged that by virtue of Section 37 of the Indian Easements Act, 1882, the Trustees, who were held to have granted that right as per Ex. 45, were not entitled to create an easement that would ensure for all time to come: In my view, Section 37 is misunderstood by Mr. Modi for the appellant. Section 37 is limited to those cases where the grantor's title to the servient heritage is either contingent on some condition or limited in some duration. The phrase 'from a cause which preceded the imposition of an easement' goes with the verb 'ceases'. This section, therefore, means that if a person whose rights to the servient heritage are likely to cease because of some reason which eventuality is existent at the time of imposition of an easement, the said easement will not ensure further beyond the period during which that grantor's right exists. Various illustrations appended to Section 37 make this position crystal clear. The trustees of the Swaminarayan Temple are held by both the courts below on the interpretation of Ex. 45 to have granted the easement right to their vendee, the father of the plaintiffs. When they granted this easement right, there was no cause which would make them lose their right to the servient heritage. It is, therefore, evident that Section 37 is erroneously invoked by Mr. Modi for the appellant.
6. Mr. Modi then urged that the document, Ex. 45, has been misread and misconstrued by the courts below. I do not agree. It is specifically mentioned in the document, Ex. 45. that the rights of passage, etc. were granted to the vendee. In the facts and circumstances of the case, the courts below concluded that this 'etc.,' was referring to other easement rights like dropping rain water from eaves which were necessary for the beneficial enjoyment of the property sold. However, this is not very material because the evidence establishes, as a matter of fact, that for more than 20 years falling within two years before the institution of the suit, the plaintiffs' father and after his death the plaintiffs had been enjoying this easement right uninterruptedly, as an easement and as of right, without any let or hinderance from any quarters. Their right, therefore, at any rate, by prescription stood firmly established. In above view of the matter, I find little merit in this appeal, which is hereby dismissed with costs.