RAM KISHAN Vs. GAYA PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal against the decision of the Civil Judge of Etawah modifying the decree of the trial Court which had issued an injunction restraining the defendants from interfering with the plaintiff's right to discharge rain water as well as domestic water through his Parnalas on the defendants' land, and restricting it to rain water only. The defendants have filed a cross-objection that the plaintff's suit should have been dismissed altogether. The facts are these. The houses of the parties are adjacent. It is common ground that the plaintiff has two parnalas through which water flows on to the defendants' roof (the plaintiff alleged that he has been dischaging domestic water through these parnalas but this is denied by the defendants). The plaintiff alleged that he constructed one parnala in or about the year 1908 and the other in or about 1918. The house was owned by a man called Gubre who died, according to the plaintiff's own case, about 35 years prior to the suit -- that is, in or about 1914. After his death his widow Laxmi inherited the property and remained in possession till her death in 1938. It is also common ground that Laxmi had only a widow's estate in the house. After Laxmi's death her daughter-in-law Rukmini, the widow of a pre-deceased son, continued to reside in the house. Some time in 1938 and 1945 -- the exact date is not known -- Rukmani purported to sell this house to a woman by the name of Kalawati. The defendants, who are the reversioners of Gubre, appeared to have asserted their right in an amicable manner by paying Kalawati the price which she had paid to Rukmini. This was done in 1945 when the defendants took possession of the house as Gubre's reversioners.

(2.) The plaintiff complained that the defendants had interfered with his right to discharge water through his parnalas on the defendants' roof. He contended that his right has become an easement by prescription and the defendants could not interfere with it. The defendants raised two pleas in the alternative. They denied that they had interfered with the flow of water at all, and alleged that they had only made some structural alterations in one of the parnalas which had become necessary for enabling them to raise a second storey on their own house, but the flow of water had been left undisturbed. They stated that they had not done anything to the second parnala and this fact was conceded before me in this appeal. Secondly, they pleaded that being reversioners they were not bound by any grant of rights made by the widow Laxmi nor by her conduct in allowing the plaintiff to acquire a prescriptive right against the property of which they are the reversioners.

(3.) The trial Court held that the plaintiff had a prescriptive right to discharge domestic as well as rain water through the two parnalas on the defendant's root and granted an injunction to restrain the defendants from interfering with this right.