T BGAVISHAPPA Vs. DEVATHA KRISHNIAH SETTY AND

JUDGEMENT

(1.) These four Second Appeals arise from a suit for injunction mandatory and permanent with respect to a wall, passage and flow of water through a drain. Plaintiff is the owner of the building Municipal No. 2/25 and defendants who are two brothers own the property No. 2/24 to the east of the building in Chickpet Bangalore City. To the east of plaintiff's building and close to the wall there is a lane through which a drain is laid to serve as an outlet for all the refuse water of his house. For construction of two opposite rows of shops leaving some space between the two, after demolition of the existing shops at the southern end of No. 2/24 defendants obtained license from the City Corporation and for the purpose of the said construction girders are placed on the eastern wall of No. 2/25 causing some damage to it. The construction, if allowed to proceed, will lead to the disappearance of the existing drain and its being substituted by a new one in the passage provided for between the two rows of shops. The plaintiff, therefore, sought for permanent injunction to restrain defendants from interfering with his right of access to the common wall and of passage as heretofore, for mandatory injunction to pull down the construction, which obstructs plaintiff's right of access to the wall, flush and passage. The trial Court held that the wall is common property, the western half belonging to the plaintiff and the eastern half to the defendants entitling them to rest the beams thereon but mandatory injunction was granted for plastering the wall and setting right the scratches or cracks caused by fixing the girders or otherwise. The lane in which the drain exists was held to be the exclusive property of the defendants but the plaintiff's right to let out the water--including that from the bath room and latrines of the building --through two definite apertures into the drain, was upheld. Shifting the drain from its present position was allowed since it would not affect the right of sewage or sullage from plaintiff's building. The claim of passage was limited to enable plaintiff to see that the wall was intact. Both parties being dissatisfied appealed and in a judgment by which both appeals were disposed of, the learned Subordinate Judge confirmed the direction that defendants should plaster the wall except at three points where the R. C. C. beams are resting, allowed the claim to the flow of water from plaintiff's building to and in the drain as heretofore without restrictions for it of the particular apertures fixed by the trial Court and the claim that the drain should continue not merely as it is but also where it is. The finding as regards the wall was that half of it longitudinally exclusively belonged to the plaintiff and the other half to the defendants with a right of passage to the plaintiff to inspect the wall and the drain. Against this decision in the two appeals, there are second appeals by the plaintiff and two by the defendants, which may all be disposed of by a common judgment.

(2.) The question whether as held by the trial Court the wall is common property of plaintiff and defendants or whether as found by the Appellate Court, each is entitled to a half longitudinally is not material since in either case, the stability or preservation of the wall is necessary for both and neither can use the wall either as joint owner of the whole or full owner of the moiety in' such a way as to injure the rest of the wail or the structure supported by it. Sri Krishnamurthy on behalf of the plaintiff argued that the wall as a whole which is 641/2'x1'x3" as well as the drain must be treated as subject to joint ownership of the parties and the defendants cannot unilaterally interfere with either the wall or drain in any manner. Reliance is placed for this on the document Exhibit C dated 11-10-1924 between the plaintiff's father and the predecessors in title of the defendants. There seem to have been disputes between the neighbouring owners even earlier about the wall and drain as seen from Ex. D a registered document of 6-1-1897. Though Ex. C is of later date, it cannot be deemed to be a new agreement in supersession of Ex. D, as urged for the plaintiff. Being unstamped and unregistered its utility to serve as a basis of the rights of parties is open to doubt and Ex. c cannot be read as being, repugnant to Ex. D. Exhibit C docs not refer to Ex. D at all and the mention of the wall as common or belonging to both in Exhibit C is not inconsistent with the recital in Ex. D that half of the wall longitudinally belongs to each as it implies that in relation to the whole both have equal rights. According to Ex. D cost of the creation of the wall was to be borne by plaintiff's father and the drain was provided by the defendants' predecessors in title. Exhibit C require that the cost for setting right the wall and improving the drain should be shared by the parties. Reading the two what may be gathered is than both could have the use of the wall and the drain without disadvantage to either with joint liability for the proper upkeep of these. The wall is what is called a party-wall of the kind mentioned at page 428 in Gale on Easements denoting "wall divided longitudinally into two portions each portion being subject to a cross easement in favour of the other". The agreements entered into previously entitle the parties to have use of the wall and placing R. C. C. beams or girders to the extent of 8" on the wall as is found to be done by defendants cannot be said to be unauthorised. But the scratches or scoopings caused in the process may, if not suitably covered up, weaken the wall and thereby the lateral support due to the plaintiff's building may be impaired. The wall seems to have been raised originally say the owners of plaintiff's building and even if Exs. D and C are construed as conferring on defendants full rights to a moiety of the wall they cannot deal with it in a manner which will endanger the plaintiff's, structure. At page 396 of Gale's book on Easements it is stated;

(3.) The main grievance of defendants against the decision of the learned subordinate Judge is stated to be the prohibition imposed upon them to shift the drain by altering its situation. It is urged by Sri Nittoor Srinivasa Rao on their behalf that the proposed change does not in the least prejudice the plaintiff but without it defendants will suffer substantial loss and disadvantage inasmuch as a long strip of land has to be left vacant and they will be handicapped as compared with plaintiff in exercise of their rights over the party wall. Considered in the light of convenience and results of permitting or forbidding the diversion of the drain, the view of the learned Judge that the drain should continue as it exists does not seem to be reasonable. The property is situated in a busy commercial locality of the City where every inch of ground is of high value and if the drain has to remain where it is, the row of shops facing east as shown in the plan Ex. M approved by the Corporation cannot be constructed. When asked to explain as to how the plaintiff would be inconvenienced if the drain is shifted, Sri Krishnamurthy and the plaintiff did not allege anything in particular but it was contended to be opposed to law so as to make it obligatory on the defendants without regard to the considerations of convenience or hardship not to meddle with the existing condition. Reliance for this was placed on Section 28(e) of ths Easements Act according to which the mode of enjoyment of a prescriptive right such as the one in dispute must be determined by the accustomed user of the right. This provision may be resorted to, as stated in the section itself, in the absence of evidence about probable intention of parties as regards mode of enjoyment and the purpose for which the right was imposed or acquired. This is not a case in which the mode of enjoyment needs to be determined only with reference to accustomed user as there is evidence of arrangement entered into by the parties twice in Exs. D and C to avoid disputes. The position of the drain is not prescribed in the documents but extension and improvement of the same may be effected by defendants with a condition that plaintiff has to contribute half the expenses for the same. As pointed out for the defendants, the laws and rules of sanitation have rendered adherence to what was in vogue formerly impossible as the drain is not now open but underground and the waste water from plaintiffs building is thrown into the drain not exactly at points prescribed in Ex. D but at the end of the wall. The right which the plaintiff in view of this can be deemed to have is an outlet on defendant's land for the waste water of his house being conveyed to the municipal gutter and if that is safeguarded and sufficiently ensured the plaintiff can have no cause for complaint. The defendants without seeking as they are entitled to. under Ex. D any pay mm t from plaintiff undertake to facilitate the flow of water from the plaintiff's building to the public drain through the new one to be set up, as freely and uninterruptedly as in the existing one. This should be enough for protection of plaintiff's rights.