PRABHU NARAIN SINGH Vs. RAM NIRANJAN

JUDGEMENT

(1.) THIS is a plaintiff's Second Appeal in a suit for an injunction restraining the defendants from flowing the water of their Nabdan from the land in suit which was shown by the letters Ka, Kha, Ga, Gha on the map at the foot of the plaint, and mandatory injunction for covering up the drain shown by the letters Ta, Tha and restoration of the land to its original condition. The plaintiff claimed that the land in suit is the Sehan of his house. The defendants claimed that the land in suit formed part of the settlement plot number 133 over which they were in possession since the time of their ancestors. The slope of the land to the west of their house was westwards and the water from their drain naturally flowed towards west and not south. It was also claimed that they had been flowing the water of their Nabdan for mare than twenty years and had acquired an easementary right to do so by prescription. The following were the issues framed by the trial Court :- 1. "whether the disputed land is the Sehan of the plaintiff's house? If so its effect?"

(2.) "whether there is a Parnala of the defendant over the disputed land?"

(3.) "to what relief, if any, is the plaintiff entitled?". 2. Issue No. 3 was decided in the negative as a preliminary issue. On issues Nos. 1 and 4, the trial Court held on an appraisal of the evidence on the record that the land in suit was the plaintiff's Sehan (courtyard) and the defendants had not perfected title thereto by adverse possession. Issue No. 2 was also decided by the trial Court in the plaintiffs favour. It was held that there was a tank to the west of the defendants house in which the water from the drain used to accummulate but that tank having been demolished, dirty water flowed over to the plaintiff's Sehan which created "nauseating smell and filth". In the result, the trial Court decreed the suit for the relief claimed. 3. The lower appellate Court has in appeal dismissed the suit. According to the lower appellate Court, the land, of which the land in suit forms part, was purchased, vide Ext. 7 by the plaintiff on the 23rd June, 1964, from Hingu Singh. The area of the land sold was only 5 decimals and although the eastern boundary of the land sold was shown to be the house of Ram Niranjan Singh, who was himself the defendant along with his sons, the area actually occupied by the plaintiff's house and Sehan was more than 5 decimals and, therefore, in the absence of any demarcation on the spot, it was not possible to define the extent of the plaintiff's Sehan and even if the defendants, evidence regarding their possession over a Portion of the land is considered untrustworthy, the fact remains "the plaintiff has miserably failed to prove that the entire disputed land is his Sehan" and that "the evidence only shows that a portion of the disputed land, which has not been demarcated on the spot properly alone is his Sehan. " The lower appellate Court then raised the question whether the defendants have acquired an easementary right of flowing the water of their Nabdan and held that the defendant's version was highly probable and believable and that it was unable to accept the plaintiff's version regarding the cesspool. The further reason given by the lower appellate Court was that the plaintiff appeared on the scene only since the middle of 1964 while the defendants had been living since long before and that, therefore, their version that they had been flowing the water of their Nabdan through the land in suit for over twenty two years and had acquired easementary right to do so through the course indicated in the Commissioner's map 90-Ka was acceptable. In the result, the lower appellate Court allowed the appeal and dismissed the suit. The relief claimed in the suit was against the flow of the water from the Nabdan only. 4. On the findings recorded by the lower appellate Court, the first question, which arises in this Second Appeal, is whether the defendants could be said to have acquired any right of easement to discharge the dirty water from the drain of their house in the plaintiff's land, The trial Court has observed that the flow of the dirty water from the defendant's house gives out a "nauseating smell", S. 17 of the Indian Easements Act says that easement acquired under S. 15 are said to be acquired by Prescription and are called prescriptive rights. The present is not a case of any of the exceptions specified under clauses (a) to (d) in respect of which prescriptive rights of easement could not be acquired. Nevertheless, S. 15 itself specifies the kinds of rights which can be acquired by prescription. They include the right to light or air to a building, a right to support to land or things affixed thereto, a right of way, "or any other easement". The question is whether a person could discharge the dirty water of his house on another person's land as of right by way of an easement. S. 4 of the Easements Act defines an easement. The illustrations under that section give certain instances of the kinds of rights which may be acquired by way of easements and also certain rights which are not easements. S. 5 describes what are continuous and discontinuous or apparent and non-apparent easements, S. 6 is not material for our present purpose. S. 7 defines the nature of the easementary rights by saying that easements are restrictions of one or other of the following rights (namely): " (a) Exclusive right to enjoy. The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto. (b) Rights to advantages arising from situation. The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantage arising from its situation. " 5. The illustrations and the explanations under that section also show the nature of the easementary rights. A perusal of the illustrations (f), (g), (h), (i) and (i) show that there is no right by way of easement to discharge the dirty water of the drain of one's house or properly on another person's land. That would be, in my opinion, allowing a right to create or cause nuisance on another person's land. An easement of that kind is not contemplated by the Easements Act, and I think properly so.