FAKIRAVVA Vs. SHIVABASAYYA SIDDALINGAYYA ODUSUMATH

JUDGEMENT

(1.) This appeal is by the plaintiff challenging the judgment and decree dated 24th June 2004 passed by the learned Additional Civil Judge (Sr.Dn.), Gadag, in R.A. No. 18/2001. The appellant-plaintiff filed a suit in O.S. No. 337/1999 for easementary right by way of declaration and permanent injunction against the defendants for flow of rain and drainage water. The suit was contested by the respondents-defendants and as per the facts, the suit properties are bearing TMC No. 3189, having a drainage near the western wall and the backyard of house bearing TMC.3188, situated at Mulgund village. It is the case of plaintiff that, her husband Nagappa Shirahatti purchased the house property bearing No. 3189 from one Puradayya Mahadevayya Hiremath under a registered Sale Deed dated 3.12.1937 and after the demise of her husband, she continued in possession. The defendant No. 1 purchased the property bearing TMC No. 3188 from its erstwhile owner -Halkeri family. As per the stand of the plaintiff, there was a drainage and water spouts near the western wall of the suit property and the sewage and rain water used to flow in the backyard of the property of defendants and plaintiff has no space to leave the drainage water and it was only through backyard area belonging to the defendants. As such, alleging obstruction, suit came to be filed by the plaintiff.

(2.) The trial Court having raised as many as six issues for consideration, decreed the suit declaring that plaintiff has easementary right of prescription to discharge the drainage water in the suit open space of defendants. As against which, defendants preferred R.A. No. 118/2001 before the lower Appellate Court. The lower Appellate Court by the impugned order, dismissed the suit by setting aside the judgment and decree passed in O.S. No. 337/1999. Being aggrieved by the same, the appellant-plaintiff is before this Court.

(3.) As per the finding of the trial Court, the evidence of PWs.2 and 3 disclose that plaintiff was discharging bathroom water and rain water in the suit house backyard since 30 years. But, however stating that defendants have not examined any independent witnesses, decreed the suit. Whereas before the trial Court, defendants have relied upon the decision of the Allahabad High Court in the case of Jag Narain and another v. Ram Dulary and another, 1979 AIR(All) 71, wherein referring to Section 15 of Easement Act, it is held that there is no provision of acquiring easementary right to discharge drainage water in others property. Defendants also relied upon the decision in the case of Prabhu Narain Singh v. Ram Niranjan (deceased by LRs) and others, 1983 AIR(All) 223 wherein it is held that no easementary right accrues to discharge dirty water from one's house over other persons land even though the same is enjoyed over a period of 20 years.