R. Sadasivam, J.
1. Balammal, the first defendant in O.S. No. 14 of 1964 on the file of the District Munsif, Ariyalur, is the appellant in this second appeal. She is the owner of Chinna Mavadi and Mudal Karai lands lying to the east of Peria Mavadi lands obtained by the first respondent-plaintiff under the settlement deed, the original of Exhibit A-2 from Lakshmi Ammal, the co-widow of the first defendant. There is a channel NC running between Peria Mavadi lands and Chinna Mavadi lands as shown in the Commissioner's plan and it irrigates both these lands. The first respondent-plaintiff filed the suit for a declaration that whenever he cultivates plantain crops on the plaint A Schedule Peria Mavadi lands, he is entitled to drain off the surplus water from the said lands, into the plaint B schedule Chinna Mavadi lands, and for an injunction restraining the defendants from interfering with his exercising the said right by putting up an earthenware pipe at the point M underneath the bed of the channel N.C.
2. Defendants 4 and 5 were added subsequently on objection taken by the appellant and they filed written statement supporting the claim of the first respondent-plaintiff, but they did not take part in the trial of the suit.
2-a. The trial Court, on a consideration of the evidence in this case, came to the conclusion that the right claimed by the first respondent-plaintiff is an extraordinary right which could not be a natural right or an easement right and that the plaintiff had failed to prove that he is entitled to such right, and dismissed the suit. On an appeal preferred by the first respondent-plaintiff, the learned 2nd Additional Subordinate Judge, Tiruchirapalli, found, differing from the trial Court, that the first respondent-plaintiff is entitled to the right claimed by him by virtue of Section 13(f) of the Indian Easements Act. He, however, agreed with the trial Court that the first respondent-plaintiff cannot claim the right as an easement of necessity and that he could not therefore invoke Clauses (a), (c) and (e) of Section 13 of the Indian Easements Act.
3. The only point for consideration in this appeal is whether the first respondent-plaintiff is entitled to the right claimed by him by virtue of Section 13(f) of the Indian Easements Act or otherwise.
3-a. The first respondent-plaintiff cannot claim the right as a natural right. The evidence in this case shows that the lands slope from north to south and from west to east, though there is some dispute about I the gradient of the slope. It is a natural right for lands lying, in higher level to drain off surplus water through adjacent lands lying in a lower level. But, in this case, there is a channel in between the Peria Mavadi and Chinna Mavadi lands owned by the parties and there could be no question of Peria Mavadi lands having a natural right to drain off surplus water on account of its being in a higher level than the Chinna Mavadi lands.
4. In order to dispose of this appeal, it is necessary to have a clear idea of the right claimed by the first respondent-plaintiff, which has been rightly described by the trial Court as an extraordinary right. It is a right which the plaintiff claims to exercise only when he raises plantain crop on Peria Mavadi land. On such occasions, he will dig his field into trenches and drain off the excess water by putting up an earthenware pipe, underneath the channel N.C. at the point M in the Commissioner's plan. It is clear from the evidence in this case and the admission of the first respondent-plaintiff and his witness, P.W. 1, that the first defendant or defendants 4 and 5, owning lands lower down, are not bound to receive the surplus water even during such plantain cultivation in Peria Mavadi, in case they raised paddy cultivation in their fields. The obligation to receive surplus water by the first defendant as owner of the Chinna Mavadi lands and by Ganesa Pandithar and Ekambara Pillai as owners of lands lower down would arise only if each of them cultivated his land with plantain crop. It is the evidence of the first respondent-plaintiff that paddy will be cultivated in his land in one year and then plantain raised in his land in two or three succeeding years. In order that the first respondent-plaintiff may effectively exercise the right claimed by him, it is necessary that the appellant, Balammal, as well as Ganesa Pandithar and Ekambara Pillai, who own lands lower down, should all raise plantain crops. Further, the appellant, Balammal should cut trenches in her field in a line with the earthenware pipe laid by the first respondent-plaintiff in a line with the trench at the spot in his field. Normally, the owner of a servient tenement cannot be expected to do ' positive acts on his land in order to enable the owner of the adjacent dominant tenant to exercise his right of easement. In fact, the evidence of P.W. 1 is that the enjoyment spoken to by him was done by mutual understanding between the parties.
5. The lower appellate Court has referred to the partition deed, Exhibit A-1, between the first defendant and Lakshmi Ammal, the predecessor-in-title of the first respondent-plaintiff, as lending support to the claim made by the first respondent-plaintiff. But the relevant recitals in the partition deed are as follows.
The above terms in the partition deed only provide for the continuance of the existing irrigation and drainage rights in those lands. The question in this appeal is whether the rights claimed by the first respondent-plaintiff were in existence as mamool rights at the time of the partition evidenced by Exhibit A-1. The learned Second Additional Subordinate Judge has not considered the evidence fully in all its aspects and in differing from the findings of the trial Court he has not taken into consideration vital facts of the case. There is the finding of the trial Court that whenever there is paddy cultivation in the lands of the first defendant or in the lands of Ganesa Pandithar or Ekambara Pillai, the first respondent-plaintiff cannot claim as of right that the surplus water in his field during plantain cultivation should be drained into the fields of the first defendant or those of Ganesa Pandithar and Ekambara Pillai. The said finding is based on the admission of the plaintiff and his witness P.W. 1. The learned Second Additional Subordinate Judge has in discussing the oral evidence, observed that P.Ws. 1 to 3 say that this arrangement as regards the draining of water by inserting an earthenware pipe at the point M periodically was there even prior to Exhibit A-1. This statement is obviously incorrect as P.W. 2, at any rate, speaks to the practice of draining surplus water through such artificial pipe only during the period 15 years prior to his giving evidence, and; it will not take one to the period prior to Exhibit A-1. Thus the learned Second Additional Subordinate Judge has lightly set aside the finding of the trial Court about the non-existence of the mamool right prior to Exhibit A-1.
6. The more important question to be considered in this appeal is whether the right claimed by the first respondent-plaintiff is an apparent and continuous easement, as defined in Section 5 of the Indian Easements Act. Illustration (a) to Section 5 says that the right annexed to B's house to receive light by the windows without obstruction by his neighbour A is a continuous easement. There can be no dispute that a drain from one land to another is a continuous easement within the meaning of the word in Section 5 of the Easements Act. This is well established by a long series of English and Indian decisions and it is only necessary to refer to the decision in Parvathammal v. Lanka Sanyasi I.L.R.(1911) Mad. 487. In Gangulu v. Jagannaithan : AIR1924Mad108 , it was held that the existence of vent was sufficient evidence of an apparent, continuous and necessary easement under Section 13(b) of the Easements Act. At page 728 of the report, it was observed that the vent might be closed for the sake of convenience after irrigating the plaintiff's fields as a temporary measure, just as a drain may be closed for clearing silt or for repairs, and that an act done for the proper enjoyment of the easement or in the course of the enjoyment of the easement which is continuous would not make the easement a non-continuous one. In Section 5 of the Indian Easements Act, a continuous easement is defined as one whose enjoyment is, or may be, continual, without the act of man. In Shorter Oxford English Dictionary (3rd Edition), at page 382, the meaning of the word 'continual' is given as 'always going on; incessant; perpetual; regularly recurring.' The right claimed by the first respondent-plaintiff in this case is a right to drain surplus water in his field during the years when he cultivates his land with plantain crop, and even according to the first respondent-plaintiff, such plantain cultivation will be stopped at least once in two years by alternating it with paddy cultivation. It could not therefore be said that the right claimed by the plaintiff to drain surplus water from his land is a continuous easement, I have already referred to the other difficulties, in this case, namely, that the owners of the servient tenements, namely, the appellant and defendants 4 and 5, are not obliged to raise the plantain crops whenever the first respondent-plaintiff raises plantain crops in his land. On such occasions, they cannot be compelled to receive the surplus water from the land or the first respondent-plaintiff. It should be noted that the, land of the first respondent-plaintiff is separated from the lands of the appellant by a channel and the right claimed by the plaintiff is an artificial one, namely, to drain surplus water by putting up an earthernware pipe underneath the irrigation channel during the period when he raises plantain crop in his land. It could not also be said that the right claimed by the first respondent-plaintiff is an apparent easement. Even an expert in the field cannot discover the existence of the right claimed by the first respondent-plaintiff. In fact, the Commissioner appointed by the trial Court had to dig and find a few pieces of earthenware pipe, and on this slender material, the lower appellate Court has found corroboration for the evidence of the first respondent-plaintiff's witnesses. The learned trial Judge has rightly found that the plaintiff had failed1 to prove that the easement claimed by him is apparent or continuous. He has pointed out that if the act of man is necessary for continuous enjoyment, that is, cutting of trenches and putting up of earthenware pipe, etc., and renewal year to year, it cannot be said to be continuous and that 'to make an easement apparent, there must be some permanent sign' and that 'in this case, there is no such sign'. The lower appellate Court has not considered these clear-cut findings given by the trial Court.
7. For the foregoing reasons, I find that right claimed by the first respondent-plaintiff is not an apparent and continuous easement, though it is possible to argue that such a right is necessary for enjoying his land more conveniently if it is cultivated with plantain crop. There is, therefore, no scope for invoking Section 3(f) of the Indian Easements Act. The decree and judgment of the lower appellate Court are incorrect and they are set aside, and those of the trial Court are restored. The appellant will get her costs of this Court and the Courts below from the first respondent-plaintiff. Leave refused.