K.L. Bapna, J.
1. This is a second appeal by the defendant in a suit for injunction.
2. In the bazar of Bhilwara there is a line of shops facing south. They were all covered by tiles so that the slope of the quarter of the shop was towards the north and the slope of the three fourth of the shop was towards the bazar on the south. There are buildings of third parties to the north of these shops. It appears that these shop-keepers made an arrangement for the discharge of the water of the northern slope in such a manner that a Nali, was constructed on the back portion of the shop above the first storey so that the water falling on the slope of the fourth part of each shop flowed on the back side in the Nali of each shop and water was carried from one Nali to another from west to east until it fell in a lane.
The shop of the plaintiff is on the east and that of the defendant on the west side. The plaintiff instituted the present suit in the court of Munsif, Bhilwara on 1-7-47 and his plaint was amended on 16-3-48. The case of the plaintiff was that the defendant had reconstructed his shop in such a manner that he took his Nali within the construction and raised a three storeyed building. It was alleged that while doing so the defendant opened a Parnali in the third storey and the second Parnali on the top of the third storey and that the water from these Parnalis fell on the tiled roof of the shop of the plaintiff and thereby damaged the shop. It was also pleaded that while formerly the water of a fourth part of the shop fell in the Nali of the defendant and then flowed on to the Nali of the plaintiff. The new Parnalis inflicted a greater burden inasmuch as --
(1) the Parnali in the third storey may be utilised for discharging water other than rain water,
(2) the Parnali on the top of the third storey would discharge water falling on a greater area than the water which could flow in the Nali of the plaintiff previously, and
(3) the water of the Parnali over the third storey would fall from the height and thereby cause greater damage to the shop of the plaintiff.
3. It was prayed by the plaintiff that the defendant be directed by an injunction to close the two Parnalis opened by him on the plaintiff's side. The defendant's plea was that so far as the Parnali over the third storey of the defendant was concerned it discharged the same quantity of water as used to be discharged previously from the slope of the defendant's shop and that the falling of the water from the height did not cause any damage to the plaintiff's shop inasmuch as water fell in the Nali and not on the plaintiff's shop.
As to the Painali in the third storey it was said that it was not intended to use it for discharging foul water. The Learned Munsif by judgment of 22nd May 1952 found in favour of the plaintiff on all the points raised and decreed the suit directing the defendant to close the two Parnalis. The same view was upheld on appeal by decision of the learned District Judge, Bhilwara dated 14th November, 1953. The defendant has come in second appeal.
4. At one stage of the arguments a doubt has arisen at to the location of the Nalis behind the shop of the plaintiff. On behalf of the plaintiff a plan showing the site was produced and proved by Mr. C.M. Jain and it is quite clear now that the wall of the plaintiff in the lower storey is 18' thick. Over the plaintiff's shop is a Medi which is covered by country tiles. The slope of the one fourth of the shop is to the back side and in order to carry the water of the slope there is a Nali of 12' of the thickness of the wall and the sloped roof rests on a thin wall about 5 to 6' in thickness. According to the evidence of both parties there was a similar Nali behind the other shops. It is also admitted that the defendant in making his new construction utilised the space on which he had his Nali and included it in his construction of a three storeyed house.
5. Learned counsel for the appellant contended that the plaintiff did not claim the Nali on the back of his shop as belonging to him and therefore in this case no question of easement has arisen and the plaintiff can only succeed on his showing that the water flowing from the two Parnalis caused damage to his shop. It was urged that even in that case the plaintiff's grievance could be removed by directing the plaintiff to fix iron or cement pipes so that the water could be carried direct from the Parnalis to the Nali, on the back side of the shop of the plaintiff. The same argument was raised in the two lower courts. The learned Munsif has referred to the evidence of the plaintiff Mohanlal as also to the evidence of the defendant's witness Arjunlal and found that it was an admitted case of the parties that the Nalis behind the shop of each party belonged to that party.
The plaintiff has said that the defendant's Nali was at 3 height of about 1 1/2 feet than his Nali. The witness Arjunlal of the defendant has also given his statement that the Nali behind the plaintiff's shop is the plaintiff's Nali. In the plaint it has not been said in so many words that the Nali in which the water of the two Parnalis fell belonged to the plaintiff but it is said that there was a right of easement in the defendant previously inasmuch as the water of the slope of one fourth shop at first fell in the Nali of the defendant and then flowed on in the Nali of the plaintiff and that by a new construction an alteration has been made in the enjoyment of the right to the flow of water and also the burden of easement had been increased to which the defendant was not entitled. The defendant has not come in the witness box and there is, therefore, no denial of the fact that the Nali on the back side of the plaintiff's shop belongs to the plaintiff.
6. The only question for consideration, therefore, remains is whether in making the new construction and opening of two Parnalis one in the third storey and the other on top of the third storey, the burden of discharge of water has been increased or the mode of enjoyment of easement has been altered in such a way that the easement has been extinguished.
7. Learned counsel for the respondent relied on two cases Mt. Panna v. Bam Saran, AIR 1933 All 492 and Keshri Sahay Singh v. Hit Narayan Singh, 58 Ind Cas 967 : (AIR 1920 Pat 689). The last case throws considerable light on the question which is in dispute in this case.
8. In the present case all the water on the roof of the shop of defendant fell in the defendant's Nali on the back side of his shop and that water thereafter flowed in the Nali on the back of the plaintiff's shop. The reconstruction made by the defendant now permits:
'(1) all kinds of water in the third storey to fall from a height of about 12 feet in the Nali of the plaintiff.
(2) the rain water falling on the roof over the third storey to collect at one place and through the Parnali falls from a height of about 23 feet on the back of the plaintiff's shop.'
It cannot be gainsaid that the burden has increased. The flowing of the water from these Parnalis in the present circumstances is also objectionable inasmuch as the water would spread and while part of the water may fail in the Nali, some portion will fall on the roof of the plaintiff's shop and it is only this objection which can be remedied by inserting the iron, or cement pipes but even if it is so done the fact remains that water other than rain water will flow from the Nali in the third storey which did not flow previously.
9. Learned counsel for the appellant urged that increase in the height from which water may flow does not amount to an increase in the burden of easement and reliance was placed on Mulia Bhana v. Sundar Dana, 21 Ind Cas 352 (Bom) and Ayoob Ismail v. Nur Mahomed Sileman, 28 Ind Cas 169: (AIR 1915 Sind 12). These two cases are distinguishable inasmuch as while the previous easement was of the dropping of rain water from eaves, the height of eaves was raised to a slight extent. The second case only follows the first. In deciding Mulia's case, 21 Ind Cas 352 (Rom) reliance was placed on Harvey v. Walters, (1873) 8 CP 162. It was explained in the case, of 58 Ind Cas 967: (AIR 1920 Pat 689) that Harvey's case, (1873) 8 CP 162, related only to a raising of height which was inappreciable.
It was only four courses of bricks, and the increase did not make any practical difference in the amount of damage caused. It was observed in Kesri Sahay Singh's case, 58 Ind Cas 967: (AIR 1920 Pat 689 that the drop of water from a height of 21 feet must cause more damage than a drop of water from 7 1/2 feet, and further that there can be no doubt that the concentrated volume of water through the pipes from the increased height would cause a greater burden on the servient tenement.
10. I agree with the two lower courts that in altering the mode of enjoyment the defendant has inflicted greater burden on the servient tenement and the alteration in the mode of enjoyment of the easement has resulted in the extinguishment of the right of previous easement of letting the water flow from the northern slope of the defendant's shop through his own Nali to the Nali of the plaintiff. The two courts below have come to a right conclusion.
11. This appeal fails and is dismissed with costs.