SWAMI NATH Vs. SHEO RATAN

JUDGEMENT

(1.) THIS is a defendants' second appeal in a suit for injunction to restrain the defendants from interfering with the flow of the dirty water of the plaintiff's house through a drain Ka Kha Ga Gha as shown on the plaint map. A commission was issued by the trial court and a site-plan was prepared which is paper No. 61-Ga and forms part of the trial court's decree.

(2.) THE suit having been decreed by the two courts below, the defendants have come up in appeal to this court. THE site-plan prepared by the Commissioner shows that the water from the plaintiff's house is first discharged on the public pathway into a cesspool and from there it passes through the drain in question along the public pathway and then takes a turn through the defendants' land. It is undisputed that the dirty water of the sullage of the plaintiff's house flows through the drain. Learned counsel for the appellants placed before me a decision of a Division Bench of the Calcutta High Court-Khudiram Nandi v. Surendra Nath Samanta, (1914) Vol. XIX Calcutta Law Journal, 42 wherein Sir Asutosh Mookerjee, in circumstances very similar to the present case, held as follows :- "If the tenements had been contiguous, there is no doubt that the plaintiff might by prescription have acquired a right to discharge the surplus water of his land through a channel into the land of the defendants. But in the case before us, a public way intervenes between the two tenements. It cannot be disputed that the plaintiff cannot possibly have acquired a right of easement in so far as passage of his water through the channel across the public way is concerned. If any authority is needed for this proposition, reference may be made to the cases of Fowler v.Sanders, (1918) Cro. Jac. 446 and Dowell v. Sanders, (1619) Cro. Jac. 490, where it was laid down that there can be no prescription to make a common nuisance which is prejudicial to all people because it cannot have a legal beginning by license or otherwise, being against the common law. (Comyn. Dig. Pres. F. 2 ; Viner. Abridg. Pres. E.). Consequently the plaintiff has not acquired a right under the law to discharge the water from his land into the channel in the public road. How can it be contended, then, that he has acquired a right to discharge water from his premises into the servient tenement of the defendants ? He is bound to show that he has acquired a right to carry water by lawful means to the boundary of the land of the defendants before he can claim to have acquired a right to discharge that water into the defendants' tank through a channel on another's land." It further appears that the defendant-appellants in the present case had filed a complaint against the plaintiff for letting dirty water collect on the public street and thus creating a nuisance under section 290 of the Indian Penal Code. That complaint, it appears, resulted in imposition of fine on the plaintiff, but the sentence was, however, set aside on appeal. According to the defendants, that complaint was the cause of the present suit. Although motive is irrelevant in a civil case, bat the fact remains that the defendants felt that the action of the plaintiff in flowing dirty water of his house on to the public street and letting it accumulate there, amounted to a nuisance. I do not think that law can permit the acquisition pf a right to perpetrate a nuisance day in and day out on somebody else's land. THE plaintiff could surely, if he was so minded, discover some alternative proper means of discharging the sullage water of his house, which was not the service of a nuisance to his neighbours.