BHAGWATI PRASAD Vs. DWARIKA PRASAD

JUDGEMENT

(1.) This is a defendant's second appeal against the decision of the learned Civil Judge of Jaunpur restraining them from interfering with the plaintiff's right of discharging dirty water from his house to the defendant's and which is appurtenant to his house. The plaintiff alleged that he and another neighbour had been discharging water into the common drain which ran througn the defendant's land into another drain further away. He claimed a right of easement. The trial court disbelieved the plaintiff's version and held that there had never been any drain running through the defendant's land, and dismissed the suit. In appeal the appellate court took a different view of the evidence and held that the existence of the drain had been established and that the plaintiff had acquired a right of easement. He allowed the appeal and issued an injunction against the defendants, who have now come to this Court En second appeal.

(2.) Mr. P. N. Bakshi, learned counsel for the appellants urged several points against the finding of the appellate court, but it is not necessary for me to consider any of them except one. He contended that this was not a fil case for the exercise of the discretionary power of the court in view of the fact that the plaintiff can discharge his dirty water into a public drain which is only 12 feel away from his house. He placed before me the report of the commissioner stating that beyond the houses of the parties there is a street and a nali (public drain). I do not see any reason why the plaintiff should not discharge his dirty water into a public drain. The Court wilt not assist him in exercising the right which will have the effect of dumping every kind of dirt into another man's land when he can, with a very slight effort and negligible expense discharge all his drainage water into a public lane. It will not bo in the interests of public health that dirty water from the dominant owner's house should flow through any private land when it can be discharged directly into a public drain. The Court has a discretion not to assist the dominant owner if tha exercise of the right will be injurious to the public interest and an equally convenient alternative, mods of enjoyment is'available.

(3.) I think the appellate court did not exercise its discretion correctly in this case. The appeal is allowed and the plaintiff's suit dismissed. But in view of the fact that the plaintiff established his right of easement -before the appellate court 1 direct the parties to bear their own costs throughout.