SAMPURAN SINGH Vs. ARJAN SINGH

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent arises out of a suit filed by Sampuran Singh against Arjan Singh and others for mandatory and perpetual injunction restraining defendant No. 1 from obstructing the natural flow of water through his house. The other defendants are merely pro forma defendants. It was pleaded by the plaintiff that he had acquired a right of easement with regard to the natural water as well as the sullage water for a period of more than 20 years. In the alternative, it was pleaded that so far, the natural water is concerned, he was entitled to easement of necessity. On the pleadings of the parties, the following issues were framed :

(2.) After hearing the learned counsel for the parties, we are of the view that this appeal must succeed. It is clear from the pleadings of the parties that the plaintiff did set out the case in the alternative that the only way in which he can pass the natural water from his land was over the defendant's land. There is no other way for the escape of this natural water. No doubt the plaintiff in the plaint used the word 'easement of necessity' but that will not, in my opinion, make any difference. It is well settled that in pleadings only facts-have to be pleaded and not the law. On given facts whether the case falls under Section 13 or Section 7 of the Easements Act is a question, which cannot be said to be outside the jurisdiction of the Courts merely because only Section 13 was relied on and not Section 7. On the facts, the matter can admit of no doubt. The evidence led in the case proves beyond doubt that the only course for the natural flow of water was from the plaintiff's land over the defendant's land. This evidence was accepted by the Courts below and the defendant's evidence to the contrary was held unworthy of credit. The spot was inspected by the trial Court as well as by the learned District judge. The trial Court in para 5 of the inspection report states as follows :

(3.) So far as the question that the plaintiff has failed to prove his easement for a period of more than 20 years is concerned, both the Courts have found against him and that is a matter, which was not agitated by the learned counsel for the appellant before us. The error in the learned Single Judge's judgment has crept in for the reason that he took the view that as the water was claimed to flow through a defined channel, the plaintiff would not be entitled to the benefit of Section 7 in view of illustration (i) to the section. According to the learned Judge, it would have been available to him if the water had sprawled on to the defendant's land in an undefined manner naturally. This conclusion is not warranted from the correct reading of the provisions of Section 7. It is well-settled that illustrations to a section do not modify the meaning and the true import of the section. They are merely illustrative of the provisions of the section. Moreover, in the present case the real meaning of illustration (i) has been misunderstood. It only connotes that if there is a defined channel and the water can get through that channel, it must not be allowed to sprawl on the adjoining land. But if there is no defined channel from which the water can flow, then the land which is naturally situate at a lower level has to take the burden of the flow of that water. This provision has merely recognized the law of nature for otherwise if the natural flow of water is obstructed, it can cause havoc to the lands from which it naturally must drain out. In the present case there is a defined channel and therefore the water could flow through it but for the fact that it has been blocked by the defendant. That being so, we are constrained to hold that the learned Single Judge was in error in holding that on the facts found by the Courts below the plaintiff's case did not fall within the ambit of Section 7 and that he was not entitled to relief thereunder. The learned Single Judge also has observed that the natural state of the land ceased as soon as the land was enclosed and made a part of the house by defendant No. 1 and the streets were paved. It is in evidence that these factors have not altered the level of the land. This evidence has been totally ignored. Therefore, it must be held that there is no basis for this conclusion. In view of the fact that the lie of the land is such that the natural flow of water from the land of the plaintiff must pass on to the land of the defendant, we are of the view that the decision of the learned District Judge was correct. We would therefore set aside the decision of the learned Single Judge and restore that of the learned District Judge. In the circumstances of the case, there will be no order as to costs. Khosla, C.J. I agree.