GOPIKRISHNA Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) THE facts leading to this second appeal in short are that the plaintiff brought a suit against the Agar Municipality on the allegations that the municipality had asked him to close two spouts of his house, the water of which flowed over the municipal land, that the Municipality is not justified in making that demand, because he enjoys the prescriptive right of easement in respect of these spouts. The plaintiff prayed for a permanent injunction against the Municipality

(2.) THE defendant Municipality resisted the suit on the ground that the spouts in question were newly constructed and that the plaintiff possessed no right of easement about them. It was also pleaded that the suit was not maintainable. The civil Judge, Agar decreed the suit and issued a permanent injunction. An appeal was filed by the Municipality, Agar, before the Additional Dist. Judge, Shajapur, who allowed it on the ground that the right of easement under Section 15 of the easements Act was not available to a person who commits public nuisance, and, dismissed the suit. Aggrieved by this decision the plaintiff has filed this appeal.

(3.) THE learned counsel for the appellant has urged that there was no plea of public nuisance in the written statement and that there is no finding of any Court on this point. On referring to the record I find that no plea was taken in the written statement that the water flowing from the spouts on the municipal land constituted public nuisance. There was no issue on the point and no evidence has been led by the parties either. In the circumstances the appellate Court erred in raising the plea of public nuisance by itself and resting its decision on it. The Court seems to think that no right of easement can be acquired by committing any nuisance. This view is wrong. In Salmond on Torts (11th Edition) page 261, it is said that