NOOR BUX Vs. ABDUL SAMAD

JUDGEMENT

(1.) THIS is defendants second appeal in a suit by the respondent for a permanent injunction against disturbance of an easement. The plaintiff-respondent is the owner of a house to the south of which is situate the house of the appellants. Between the two houses lies a lane ABCD as shown is the plaint map. This lane belongs to the defendant-appellants. The respondent stated that he and his predecessors-in-title had always been dropping water of the eaves of his house on this lane for the last hundred years or so as of right and as an easement. In 1948-49 the plaintiff reconstructed the upper storey of his house keeping intact the ground floor. On 9th April 1949 the defendants obstructed the plaintiff from putting tin-sheets over the root of his house. Till July 1948 when the plaintiff started the reconstruction of the upper storey of his house, the roof of his house had two slopes, one towards the south and the other towards the north. The water flowing by the southern slope fell over the lane ABCD. The plaintiff, therefore, claimed a permanent injunction-restraining the defendants from obstructing the plaintiff from putting the corrugated iron sheets roof over his house and also from obstructing the (low of eaves-water from that roof upon the lane ABCD. The suit was resisted by the defendants on the ground that the house of the plaintiff had no roof at all for at least twenty years and so no water of any eaves dropped either to the north or to the south. The easement, if any, was not enjoyed by the plaintiff and so the suit must be dismissed.

(2.) THE trial Court held that the plaintiff had failed to allege all the necessary ingredients of an easement right and also failed to prove that he had acquired the easement of eaves-dropping for the southern wing of the roof of the second storey of his house. The trial Court also held that the plaintiff had increased the height of his new house and had thereby increased the burden of easement. So the easement was extinguished under Section 43 of the Easements Act. The trial Court, therefore, dismissed the suit. The lower appellate Court came to the conclusion that the plaintiff had pleaded his right of easement of eaves-dropping and that he had proved it. It, therefore, held that the plaintiff had acquired a right of dropping water of the eaves of his 1 1/2 storeyed roof on the lane ABCD as an easement by prescription. Till 1948-49 the house of the plaintiff had 1 1/2 storeys, but the height has now been raised to 2 1/2 storeys. The water of the eaves had been falling till July 1948 from over a height of 1 1/2 storeys, but now it would fall from over the height of 2 1/2 storeys. The lower appellate Court, therefore, thought that under Section 23 of the Easements Act this was an alteration of the place of enjoyment; and plaintiff could do so only if he did not, thereby, increase the burden of the easement. But there was no evidence whether the alteration, that is, the raising of the house to a greater Height had increased the burden. The lower appellate Court thought that under Section 43 of the Easements Act a material increase in the burden of the easement by a permanent change in the dominant heritage may extinguish the easement right itself. The Court remained under the impression that the velocity of the water falling from a greater height would be greater than the velocity of the water which fell over the roof of the old house of the plaintiff; and, therefore, observed that if the plaintiff so arranged that the water would be brought to the level of the former height of his eaves and then would fall on the land of the defendants with the same velocity as it used to fall before 1948-49 he might avoid imposing, additional burden on the lane ABCD. The lower appellate Court, therefore, set aside the decree of the trial Court and ordered that it be declared that the plaintiff had acquired a right of easement to drop water on the lane ABCD of the defendants through the eaves of the southern wing of the roof of his former 1 1/2 storeyed house as it was till July ,1948. The relief of permanent injunction was refused to the plaintiff, but this declaration has been granted. The defendants have filed this second appeal and contended that no declaration was asked- for in the plaint and that there was no evidence of an easement as of right and, therefore, the plaintiff's suit should have been dismissed, if an injunction could not have been granted.

(3.) WHETHER there was an easement of dropping water from the eaves on the defendants' land or not is a question of fact and the finding given by the lower appellate Court in tin's respect is binding on me. The Court below, however, could not decide whether raising the height of the house would increase materially the burden of the easement on the defendants' land, and, therefore, passed a declaration as stated above. The first question before me is what is the actual height of the new building and by how many feet the house has been increased in height. In my opinion, the portion marked Section AB in the map attached to Ex. P-3 (application to the Municipality for permission to construct a house) correctly shows the increase in the height of the plaintiff's house which has been sanctioned by the municipality and according to which the present building has been constructed. It will appear that formerly the height was 10' plus 3' equal to 13'. Now it has gone to 10' plus 9 1/2' plus 4' equal to 23 1/2'. This map is on page 63 of the paper-book and would show that there has been an increase of 10 1/2 feet in the height of the house; and, the simple question before the learned lower appellate Court was whether merely increasing the height of the house can it be presumed that there has been a material increase in the burden on the servient tenement? Both the learned Counsel have argued this point before me and I find that there is no apt Indian ruling on the point. I have, therefore, looked up the earliest English rulings which, in my opinion, deal with this point,