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Munshi Misser and anr. Vs. Bhimrajmam and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.824
AppellantMunshi Misser and anr.
RespondentBhimrajmam and ors.
Cases ReferredBidhoo Bhusan Palit v. Beny Madhub Mazumaar
Excerpt:
easement - water flowing over servient tenement without definite channel--acquisition of easement. - lawrence jenkins, c.j.1. the fact that the water flows over the surface of the servient tenement without a definite channel for its carriage cannot prevent the acquisition of an easement. we, therefore, think that the case of bidhoo bhusan palit v. beny madhub mazumaar 8 c.w.n. 244 was not correctly decided. we must accordingly remand the case to the lower appellate court in order that it may be determined, first, whether a right has been acquired to discharge water into the servient tenement through a drain which ends in a wall standing on the boundary of the defendants' land, and, secondly, whether having regard to the provisions of section 26 of the limitation act, the present suit lies in respect thereof, and to dispose of the case accordingly.2. the costs in the high court including.....
Judgment:

Lawrence Jenkins, C.J.

1. The fact that the water flows over the surface of the servient tenement without a definite channel for its carriage cannot prevent the acquisition of an easement. We, therefore, think that the case of Bidhoo Bhusan Palit v. Beny Madhub Mazumaar 8 C.W.N. 244 was not correctly decided. We must accordingly remand the case to the lower Appellate Court in order that it may be determined, first, whether a right has been acquired to discharge water into the servient tenement through a drain which ends in a wall standing on the boundary of the defendants' land, and, secondly, whether having regard to the provisions of Section 26 of the Limitation Act, the present suit lies in respect thereof, and to dispose of the case accordingly.

2. The costs in the High Court including the costs of this reference will abide the result.


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