SUBRAHMANYAM A Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE respondent-plaintiff filed a suit for declaration of the easementary right of the plaintiff to let off rain water discharged from the western plots A and A-1 towards east across the plots B and B-1 belonging to the defendants and for the issue of a mandatory injunction directing the defendants to remove the elevated portion CD as per plaint plan. It was contended that water used to flow in the natural way since a very long time from A, A-1 plots to B, B-1 plots towards east into the poramboke land. THE lie of the land is from west to east and south to north. It was alleged that the defendants dug up two wells and dug channels also. THE earth so removed was placed along the ridge CD thereby preventing the water from A, A-1 plots to flow into B, B-1 plots with the result that the water was stagnating and causing damage to the lands of the plaintiff.

(2.) THE contention of the 1st defendant, who is the appellant before me, was that the lie of the land is not from west to east, that the water never flowed in the way in which it is alleged by the plaintiff and that the plaintiff never exercised any easementary right. THE CD ridge is an old ridge. THE rainwater according to the 1st defendant flows from south-north upto the point of J and takes a turn towards east and flows into the 2nd defendant's land. THE said defendant admits that he dug a well about three years back and irrigated his lands, He also said that the plaintiff has not exercised the right within two years prior to the suit and as such the suit would be time-barred.

(3.) FAR from helping the defendant, the 2nd case of the Rangoon High Court relied upon by the learned counsel for the appellant distinctly does him dis-service. In that case, in order to destroy a natural right of the plaintiff to throw off the water in the natural way, the defendant most successfully set up a counter easementary right to resist and throw back the water coming from the plaintiff's land. It is plain that such a counter easementary right can be acquired only in the manner in which other easementary rights are acquired; that is to say, by its continuous unobstructed exercise of 20 years and two more years prior to the suit. That was not the case of the defendant. The defendant cannot acquire that right within 8 years. Since the defendant has not acquired any easementary right to resist the natural flow of water and throw it back, I do not find any substance in that contention.