VARKEY JOHN Vs. VARKEY STANSELOSE

JUDGEMENT

(1.) IN accordance with my order dated 5th September, 1972, the Additional District judge has returned the findings called for on the question as to whether the plaintiff-appellant is entitled to relief (F) or, in the alternative, relief (G) contained in the plaint The findings are in favour of the appellant; and counsel for the 1st respondent has preferred objections to the findings. 1-A. The learned Additional District Judge has recorded:

(2.) ON these findings, counsel for the 1st respondent argued that the claim of the plaintiff was to drain water through a well-defined channel, namely, through the middle channel that ran through the A and B schedule properties, that an easement to this effect not having been established by enjoyment for the statutory period of 20 years, a right to drain the water through the channel running from west to east in the north of the B schedule property and then through its western and eastern sides from north to south, can also be acquired only by uninterrupted use or enjoyment for the statutory period, of which there was no evidence. I think the argument proceeds on a misconception. It is true that the plaintiff's claim was to drain water from the A schedule to the B schedule property, but not confined to the middle channel that ran through both. The court below found--as I will show wrongly--that there was an interruption of this right, within the statutory period of 20 years, and that after such interruption the plaintiff was draining the water through the channels in the north, west and east of the B schedule property, as noticed in the findings now sent up BY the additional District Court. This, the plaintiff was doing under circumstances, now found and recorded by the District Court, in the finding sent up in pursuance of this Court's order. If so, it is clear that there has in fact and in law been no interruption of the plaintiff's right of drainage. The third paragraph of Section 15 of the Indian Easements Act, 1882. which is the relevant provision, reads as follows:

(3.) SUPPORT for this position is afforded by the decision in Nasiruddin v. Deokali, (AIR 1929 Pat 124 ). There, the plaintiff and the defendant were both permanent tenure holders under the Municipality of two plots of land adjoining each other. The plaintiff's plot was on the west side of the Mangal Bazar Road. A part of it was occupied by his house and a strip along the southern edge was left vacant except for a well dug in the middle. This strip furnished access from the road to the rear of the defendant's house through a door in the wall of the plaintiff. The Municipal me-thrani used to pass from the road to the rear of the defendant's house through the southern strip, north of the well, and through the plaintiffs door in the wall to the defendant's house in the west, for the purpose of clearing the defendant's privy. At some time within the statutory period of 20 years, the plaintiff closed and locked the door in his wall. Thereafter, at the request of the defendants, the municipality bored a hole through the wall a few paces south from the door and the Municipal Methrani continued to pass over the southern strip to the defendant's property but entered it not, by the door, but by the breach in the wall, and in order to approach the breach, he passed south of the wall, instead of north, as formerly. On these facts, it was held that there was no interruption of the easement. Ter-rell, C. J. who delivered the judgment (concurred in by Jwala prasad J.) observed :