RACHHAYA PANDEY Vs. SHEODHARI PANDEY

JUDGEMENT

(1.) In this second appeal by the plaintiffs appellants the question involved is as to whether they have a right to discharge the drain water of their house on to the land of the defendants respondents. According to their case, in village Pisai in the district of Gaya, they have got their house standing on survey, plot Nos. 3272 and 32/3. They purchased these two plots with some dilapidated houses on them in the year 1927 and, after amalgamation, they claim to have constructed in or about that year a house in the two plots. Towards the north of the house of the plaintiffs there is a house in survey plot No. 3271 belonging to one Peyare Pandey and in between the two houses there is a Kola and the drain water of the plaintiff's house first passes in the Kola and then through the Kola the water drains out in survey plot No. 3224, the defendant's plot, after passing a gali in gairmazarua am plot No. 3229. That is to say, towards the west of the plaintiffs' house the water first passes through the gairmazarua am plot which is a path and then it goes on to the defendants' plot which is said to be lower in level from the plaintiffs' house plots and the path, gairmazarua am plot It is claimed on behalf of the appellants that since time immemorial the drain water of the house on plots 3272 and 3273 has been passing in this fashion, the natural slope of the discharge of the drain water being towards the west. The defendants, out of enmity, are said to have obstructed the Slow of the drain water of the house by blocking the western extremity of the lane with earth in November, 1955, as a result of which drain water has been accumulating in the house of the plaintiffs, near their house and also in the fane.

(2.) The defendant's case is that the flow of the drain water of the plaintiffs house is to the defendant's plot .3224. The flow of water of survey plot No. 3273 is on the gairmazarua am plot No. 3274 which is to the south of that plot and the flow of the water of the house standing on plot No. 3272 is on survey plot No. 3229 after flowing northward and passing through the drain in plot No. 3271. Their further case is that about 5 years ago the plaintiffs and Ram Pearey Pandey, the owner of plot No. 3271, made some arrangement among themselves and reconstructed their house leaving a narrow Koli in between their houses. After these constructions, plaintiffs constructed a pucca nali in the said Koli and began to discharge drain water of their house into that nali. This water after coming out of the koli in gairmazarua am plot No. 3229 has been flowing to the north through that very gairmazarua am plot. Previously there was no well in the house of the plaintiffs and very little water used to flow to the said drain and the Koli in plot No. 3229, so it used to dry up either in the drain or in the said plot. About 2 years prior to the institution of the suit, the plaintiffs sank a tube well in the courtyard of their house and since then much surplus water of the houso began flowing through the said koli and plot No. 3223 which the plaintiffs wanted to drain out through the defendants' plot in question but they did not succeed.

(3.) The learned Munsif who tried the suit in the first instance held that the plaintiffs have been discharging the drain water of their house in plot No. 3224 peacefully, openly and as of right for more than 20 years without interruption, they as such, acquired a right of easement and are entitled to flow the drain water of their house in the defendant's plot through the gairmazarua plot No. 3229. Hence he decreed the suit. On appeal by the defendants, the learned subordinate, Judge has held :