C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for injunction.
2. The plaintiff's case is that the defendants who are brothers constructed a 'Parnala' in their house 3 to 4 days before the institution of the suit so as to discharge the rain water as well as filthy water over the plaintiff's 'nohra' which they had no rignt to do. Consequently, it was prayed that the 'parnala' may be closed and an injunction may be issued against the defendant not to discharge water in the plaintiff's 'nohra'. The defendants pleaded in their written statement that the 'nohra' on which the water was discharged from their house through the 'parnala' in question did not belong to the plaintiff and that in any case they had acquired prescriptive right of easement to discharge water through the 'parnala' in question.
3. After recording the evidence produced by the parties the learned Civil Judge, Bharatpur held that the defendants had failed to prove the alleged prescriptive right to discharge water through the 'parnala' in question on to the plaintiff's 'Nohra' and that the 'parnala' had been constructed a few days before the institution of the suit as alleged by the plaintiff. In spite of having given this verdict in favour of the plaintiff, the learned Civil Judge yet refused to decree the plaintiff's suit on the ground that the defendants had so constructed their 'kotha' so as to keep the level for flow of water towards the plaintiff's 'Nohra' and consequenlty the defendants would be put to inconvenience and expense if the 'parnala' was closed. In this view of the matter the learned trial Court awarded Rs. 15/- by way of damages to the plaintiff and dismissed his suit for issue of injunction.
4. Aggrieved by the judgment and decree of the trial Court the plaintiff filed appeal in the Court of District Judge. Bharatpur who while maintaining the decree for dismissal of the suit for injunction enhanced the damages awarded to the plantiff from Rs. 15/- to Rupees 75/-.
5. Dissatisfied with the judgment and decree by the learned District Judge. Bharatpur the plaintiff has filed this second appeal.
6. I am constrained to mention at the very outset that the learned District Judge, Bharatpur, did not appreciate the true position in law. The trial Court had found that no prescriptive right of easement had accrued to the defendants who had constructed the 'parnala' in question as alleged by the plaintiff a few days before the filing of the suit. The plaintiff was not guilty of any laches and had never consented to the discharge of water through the 'parnala' in question from the defendants' house onto his 'nohara'. The defendants have no right or authority in law to thus invade the peaceful user of the 'nohara' by the plaintiff by discharging water from his house into the 'nohra' and thereby create a nuisance. No easement of necessity has been pleaded by the defendants and if the defendants had without any justification and arbitrarily kept the level of their 'Kotha' so as to allow the flow of water towards the plaintiff's 'Nohra' through the 'parnala' in question, they have to think themselves and no law can compel the plaintiff to suffer the invasion of his rights by compulsory acceptance of compensation.
7. It is perfectly clear that the 'Nohra' is the property of the plaintiff and by building the 'parnala' or water spout in question which results in flow of water passing from the house of the defendants on to the 'Nohra' of the plaintiff, the defendants have definitely placed burden on the plaintiff's house, a burden, which if allowed to exist, would in the course of 20 years ripen into an easement which cannot be interfered with, by the plaintiff, and the plaintiff's property would thus become the servient tenement qua the defendants' house. In these circumstances irrespective of the question whether the defendants' action amounts tp a nuisance or not, an injunction can be granted to the plaintiff to stop the flow of water from the defendants' house through the 'parnala' or water spout.
8. The judgments of the Courts below suffer from an error of law and must be set aside.
9. Accordingly, I allow this appeal, set aside the judgments and decrees of the Courts below and hereby decree the plaintiff's suit by issuing a mandatory injunction against the defendants to closethe 'parnala' in question through which the water is being discharged from the defendants' house over the plaintiff's 'Nohra'. The defendants are further restrained from discharging water from their house over the plaintiff's' 'Nohra' in future. As a necessary corollary the decree awarding Rs. 75/- as damages to the plaintiff in lieu of refusal of injunction is also set aside.
10. In the circumstances, I leave the parties to bear their own costs.