KAPILRAI BRIJBHUKHANDAS Vs. PARSANBEN DHIRAJLAL

JUDGEMENT

(1.) This is plaintiff's Second Appeal.

(2.) The plaintiff-appellant filed Suit for declaration that he has got right to discharge rainy water and daily water for domestic purposes through hole in the southern wall of the plaintiff and for permanent injunction restraining the defendants-respondents from obstructing his right to discharge rainy and daily water through disputed hole. On 30.4.1970 the plaintiff purchased property, detailed in Para : 12 of the plaint, from Champaklal under a Registered Sale Deed. The house along with open chowk measuring 11 ft. east-west and 7 ft. north-south is alleged to be in ownership and possession of the plaintiff. The rainy water used to fall in the plaintiff's chowk and thereafter it was going towards the property of the defendants through a hole measuring 1' x 1' in the southern wall of the plaintiff. Ultimately the water used to flow through gutter on the main road. In a similar manner rainy water from the houses of other owners situated towards the west of the plaintiff's house used to flow since more than 20 years. The plaintiff thus claimed easementary right by prescription to discharge water in this manner as he and his predecessors were exercising this right for more than 20 years. The defendants purchased their property about 10 to 12 years back. However, on 8.4.1972 they started digging foundation for construction of bath-room so as to close the hole in the plaintiff's wall meant for discharge of rainy and daily water. On plaintiff's objection the defendants promised to remove the construction, but with no result. Hence, the Suit was filed.

(3.) The Suit was contested on the ground that no such water course existed as has been alleged by the appellant and that the appellant has not acquired any easementary right nor such right was used nor such right was exercised for more than 20 years openly, peaceably without interruption.