Mufti Baha-ud-Din Farooqi, Actg. C.J.
1. This is an appeal by the plaintiffs against the concurrent decision of the courts below dismissing a suit for injunction. The parties are the owners of the adjourning houses. The defendant has kept four water spouts for the disposal of rain water and sewage water from the roof of his house on the compound of the plaintiff. He has also kept one gala (opening) in his house which is used as an outlet for dumping rubbish in the compound of the plaintiffs. The plaintiffs asked for a mandatory injunction directing the defendant to remove the water spouts and close the Gala. Their case was that the defendant had no right or title to keep the water spouts or the Gala at their present, place and they were a source of nuisance to them. In reply, the defendant pleaded that he was the owner of a two feet wide strip of land adjoining his house in the compound of the plaintiffs which has been used as a site for discharging water from the water spouts as also a dumping ground for rubbish evacuated through the Gala and that, in any event, such user had extended for over a period of twenty years and ripened, by prescription, into right of easement. During the pendency of the suit the defendant died. His legal representatives were brought on record and are arrayed as respondents in the present appeal. The trial court negatived the plea of ownership. The court however upheld the plea of easement observing as follows:--
'The most important issue to be decided is issue No. 5 if the defendants' right to keep the water shoots and opening have matured into an easement by prescription, the plaintiffs have no right to get it closed. The defendants' case is that these water shoots existed in the old kacha house and from the time of the construction of the new house the same have been kept. The suit has been filed on 28-8-1956. The water shoots, according to the evidence of the defendants has been there for more than 20 years, whereby the right of easement has matured, in favour of defendants. The evidence of the plaintiff is not trustworthy, whereas the defendants witnesses had categorically stated on the basis of their personal knowledge about the existing of water shoots etc. Even one Anant Ram plaintiff's witness has admitted the existence of said easements for 20 to 25 years. Moreover he says that the water shoots of the old house (kacha) which was purchased by the defendant used to fall in the courtyard of the kacha house. Whereas Basikhi Singh witness stated that 2 of the water shoots used to fall in the street and the plaintiff Suraj Prakash stated that the water shoots of the old house used to fall in the Bazar. These witnesses are not consistent about their statements and have made contradictory statements. Moreover Anant Ram witness is the real uncle of Suraj Prakash and Basikhi Singh witness was a co-employee in the department. Moreover the reasons given by Basikhi. Singh regarding his seeing of the old house cannot be relied upon nor does he remember about the water shoots of other house. If he once happened to visit the house for purchasing the same it cannot be believed that he could remember all this.
Under these circumstances it is fully proved in this case that the easements had matured in favour of the defendant. In face of it the plaintiffs cannot have any right to get the water shoots and opening closed.'
2. The lower appellate court agreed with the conclusion of the trial court and incidentally added:
'The evidence adduced in the instant suit by the defendant L. Narinjan Dass and his successors in interest, particularly that of Mst. Mela Devi, widow of L. Narinjan Dass unmistakably illustrates that even in the old house which Narinjan Dass bought these water shoots existed and in the new house, which has been constructed by them on the same piece where the old one existed, the water shoots were kept at the same places where the old ones had existed. This evidence further shows that these easements were enjoyed by the defendants since a very long time and these had ripened by prescription into indefeasible right even before the civil suit No. 90 came to be instituted. Even while the civil suit No. 90 came to be instituted and determined, the said L. Narinjan Dass was exercising the right of easement over the land. Thus quo anime ezerit, as far Narinjan Dass and derivatively his successors-in-interest respondents are concerned, they without doubt have earned the right of easement in regard to the water shoots and the opening in question.'
3. The argument of the learned counsel for the plaintiffs is that the lower courts have committed an error of law in holding on the facts of the present case that the defendant had, by prescription, acquired the right of easement. In order to appreciate the argument it would be necessary to give a few more facts. Prior to the institution of the present suit, the defendant had brought a suit for permanent injunction, being civil suit No. 96 of 1956 on the file of Additional District Judge, Jammu, restraining the present plaintiffs from entering into possession or raising any construction over two feet land constituting a buffar area between the northern and eastern walls of his house and compound adjoining the house of the plaintiffs. His case was that he was the owner and, alternatively, he had acquired, by prescription, right of easement over this strip of land. At the trial, he did not press his case based upon the right of easement and confirmed his claim to ownership. The claim was rejected concurrently by lowar courts and the rejection was affirmed by the High Court.
4. Relying on the judgment of thatcase the lower courts have held in thepresent case that the defendant hadfailed to establish his ownership. Theargument of the learned counsel for theplaintiff is that no right of easementcould be found in favour of the defendant when he had unsuccessfully pleaded ownership. He urged that an easement presupposes the exercise of a rightover somebody else's property and noton one's own property and that simplybecause the act of user had extendedover a period exceeding twenty years,the right of easement could not be foundin favour of the defendant, much less, inrespect of the Gala about which thereis not a shred of evidence to sustain theclaim that it was ever used as an outletfor throwing rubbish over the disputedstrip of land. In support of his argumenthe relied upon the decisions in Chapsi-bhai Dhanjibhai Dand v. Purushottam(AIR 1971 SC 1878), Purani DhirailalAmritlal v. Mehta Sankleshwar Aditram(AIR 1976 Guj 180) and Sri Venkatesh-waraswamivaru Devasthanam v, Veli-dandla Kanakalakshmi (AIR 1976 AndhPra 250).
5. In the case of Chapsibhai Dhanji bhai (AIR 1971 SC 1878) (supra) the Supreme Court has held and, this is also the view expressed in the other two cases, that, 'if the owner of a dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as on easement over a servienl tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement.'
6. The trial Court has found that the water spouts had been used for discharging water into the compound of the plaintiff's house for a period exceeding twenty years and concluded that the de fendant had acquired the right of easement in respect of the waterspouts as also the Gala. It is difficult to see how the finding about the waterspouts could be related to the conclusion as respects Gala. That apart, there is not a whisper that during the period of prescription the defendant was never conscious of the fact he was the owner of the disputed strip of land constituting the servient heritage. The lower appellate Court has followed the line ad opted by the trial Court except that it has added that the defendant had perfected his title to the easement even before the civil suit No. 90 of 1956 came to be instituted and determined. In this, the lower appellate Court has assumed that the defendant had become conscious of and claimed ownership over the disputed strip of land for the first time when he instituted the Civil Suit No. 90 of 1956. There is nothing in the evidence to support this assumption. The assumption is completely perverse. In the circumstances I am inclined to agree with the learned counsel for the plaintiffs that on facts found by the lower Court's they were not justified in concluding that the defendant had established the alleged right of easement.
7. Even so, argued the learned counsel for the defendant, the plaintiffs were not entitled to any relief. He urged that the relief of mandatory injunction is an equitable relief which is discretionary for the Court to grant or to refuse and that ordinarily the great deal of delay in the institution of a suit would disentitle the plaintiff to the grant of such injunction. The deceased defendant had admittedly constructed the house in the samvat year 1999 (1942 A. D.) The plaintiffs had not instituted any suit and asked for injunction during the course of construction or at any time thereafter for more than a decade which disentitled them to any relief. In support of his argument he relied upon the decisions in Bhimaji Vasudev v. Yeshwant Chandagouda (AIR 1929 Bom 388) and Mst. Bhagwanti v. Mohan Singh (AIR 1934 Lah 847). In reply, the learned counsel for the plaintiffs argued that the plea cannot be entertained for the first time in this appeal when it was not raised in the trial Court and in the lower appellate court and that, in any event, this was not a ground for refusing relief to the plaintiffs when they had failed to establish the right of easement. In support of his argument he relied upon the decisions in B. Sivanandy v. Bhagavathyarnma (AIR 1964 Mad 237) and Haru Ram v. Kaliyana Ram (AIR 1929 Lah 88),
8. The principle of the decisions in Bhimaji and Mst. Bhagwanti (supra), and which is now a well settled principle is that ordinarily a great deal of delay in the institution of a suit would disentitle the plaintiffs to the grant of mandatory injunction. The case of Haru Ram (supra) relied upon by the learned counsel for the plaintiffs does not lay down a contrary principle. It is true that in that case there was undue delay in the institution of the suit and still mandatory injunction was granted. But that was so because the Court found that the plaintiffs had only begun to feel inconvenience caused by the waterspouts within a period of six months preceding institution of the suit and that too when he had constructed his new house. There is no such circumstance appearing in the present case. The plaintiffs have suffered the inconvenience caused by I the waterspouts right from the begining of the construction of the house by the defendant though the same cannot be held to be true about the Gala because the finding as regards the Gala is 1 vague and is not supported by any evidence. The house was constructed in the year 1942 A. D. and more than fourteen years had elapsed till the plaintiffs instituted this suit. In the absence of any satisfactory explanation for the delay, the relief of mandatory injunction claimed in respect of the waterspouts should appropriately be refused, The mere fact that the defendant did not raise any objection about the delay in the lower courts should not stand in the way inasmuch there is nothing on record to show that the defendants can easily dispose of the drainage of their roof in any other direction.
9. The decision in the case of S. Sivanandy (AIR 1964 Mad 237) (supra) relied upon by the learned counsel for the plaintiffs does not oppose this view. In that case the wife sued her husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The trial Court decreed the suit. The husband appealed but without success. In further appeal it was contended on his behalf that the relief should be refused to the plaintiff on the ground that she had come to the Court after undue delay. The plea was' neither raised in the trial Court nor before the 1st appellate Court. But the Court did not repel it on that ground. On the other hand the Court considered the objection on merits. On the perusal of the record it came to the conclusion that the plaintiff had made all efforts by peaceful means and friendly mediations to induce the defendant to take her back and that she had avoided coming to the Court in the hope that defendant could see reason and take her back. On this finding the Court repelled the objection. Accordingly the decision cannot be read as an authority for the proposition that a plea which has not been raised either in the trial Court or in the appellate Court should as a matter of rule be disallowed to be raised in the second appeal.
10. The result therefore is that this appeal succeeds and is allowed in part. A decree for mandatory injunction ordering the defendants to close the disputed Gala is passed in favour of the plaintiffs against the defendants. The parties shall bear their own costs throughout.
11. Mr. Amar Chand asks for leave to file an appeal, before the Letters Patent Bench as according to him, the case involves a question of law of general importance the same being, whether the delay in filing a suit would disentitle the plaintiff to the grant of mandatory injunction where the alleged wrong is of recurring nature. In my opinion, the question is no longer res Integra. There are various authorities on this point to which a reference has been made in the judgment itself. Accordingly the argument does not seem to be well conceived, Leave to appeal to the Letters Patent Bench is refused.