MADAN LAL Vs. GIRL LAL

JUDGEMENT

(1.) THIS second appeal has been referred to us at the instance of a learned Single Judge, who felt that an authoritative decision was called for as to the combined effect of Sections 15, 45 and 51 of the Easements Act.

(2.) THE suit out of which this appeal arises is for a perpetual injunction to restrain the defendants from interfering with the discharge of rain-water through certain spouts (parnalas) that open from the plaintiff's roof on to their land. From the findings of fact given by the Courts below it appears that when the plaintiff purchased the house in 1965, it was a mere ruin, having collapsed 5 or 6 years before; but previously, when the house was standing, the plaintiff's predecessors had been discharging rain-water on to the defendants' land from the roof of the house through parnalas for more than 20 years. The learned Munsif of Muzaffar nagar held that they had thus acquired a prescriptive easementary right and on this finding decreed the suit. But in ap peal the learned Second Additional Civil Judge of Muzaffarnagar found that though a prescriptive easementary right had been earlier acquired, it had not been exercis ed for the five or six years Immediately preceding the suit, as during that time the house was a roofless ruin and no water could be discharged on to the defendants' land. He acordingly held that the suit could not succeed, because the easement claim ed by the plaintiff had not been enjoyed within the two years next before the institution of the suit, as required by the fifth paragraph of Section 15 of the Easements Act. The ap peal was therefore, allowed and the suit dismissed.

(3.) THE fallacy in this line of argu ment, however, is that it assumes that an absolute right of easement was in ex istence at the time when the house col lapsed. If there was no such absolute right in existence, there could be no question of its extinction and the provisions of Sections 45 and 51 would not be attract ed; and it appears to us that the finding recorded by the Courts below that the plaintiff's predecessors had acquired an absolute easementary right by prescrip tion was wrong. Such a right can only be acquired under the provisions of Section 15 of the Act, the relevant portions of which run as follows:-