PITESWARI DASSY Vs. MRITYUNJOY NANDY

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the judgment and decree of reversal, dismissing her suit for declaration of easement right and for mandatory and permanent injunction.

(2.) THE plaintiff's case is that she is the owner of a tank comprised in plot No. 2868 in mouja British Chandernagore Police Station Chinsurah in the district of Hoogly. There is a mohana, or outlet on the eastern side of the tank for discharge of excess water of the said tank. This excess water is discharged through this mohana towards the east along the Municipal pucca drain lying along the northern side of the Municipal road of plot No. 2873 and thence turning north passes on to the drain along the eastern side of plot No. 2865, and ultimately to the garth of plots No. 2887/2888/2889. The drain along the eastern side of plot No. 2865 is the disputed drain in this suit. There was a claim for bailing out water through this channel, which was given up at the trial. The right of easement of the discharge of excess water as stated above is being enjoyed as of right and without interruption from time immemorial and the plaintiff is entitled to the right of such easement without any interruption from any quarter. Admittedly the land of plot No. 2865 originally belonged to Ashutosh Ghosh, who sold the same to Ram chandra Pal, who, in his turn sold the said land to the defendant. The defendant closed the disputed drain in May, 1953 and failed to remove the obstructions therefrom inspite of demands. As such action clouded the plaintiffs right of easement, the suit was instituted claiming a declaration of her right of easement for discharge of excess water through the drain on the eastern side of plot No. 2865 and for mandatory injunction for removal of all obstructions therefrom and also for permanent injunction restraining the defendant from putting any obstruction in future.

(3.) THE suit was contested by the defendant who filed a written statement denying that the plaintiff ever had any right of easement over his land as claimed. It was stated that there was a private drain along the eastern side of plot No. 2865 but the drain was closed by him within one year of his purchase in 1347 B. S. It was also stated that as the slope of land of plot No. 2873 was from east to west, there could be no natural easement from the plaintiff's tank towards the east. The defendant further stated that there was no existence of the drain within two years from the institution of the suit which is thus barred by limitation. There was a further defence that the Municipality is a necessary party to the suit and the suit is bad for defect of parties. The defendant accordingly prayed for the dismissal of the suit,