LAWS(PAT)-1987-10-4

ANU SUNDAR Vs. SHIVA NARAIN

Decided On October 30, 1987
ANU SUNDAR Appellant
V/S
SHIVA NARAIN Respondents

JUDGEMENT

(1.) This appeal is directed against the judgement dated 17th July, 1978 passed in Title Suit No. 172 of 1972 by the Second Addl. Subordinate Judge, Ranchi dismissing the suit of the plaintiffs-appellants on contest with costs.

(2.) The plaintiffs had filed the suit for declaration that they had a right to drain out the surplus rain water and sewage water of their house situated on plot No. 1614 through M.S. Plot No. 1630 belonging to the defendant-respondent. A prayer was. also made for permanent injunction restraining the defendant from obstructing the flow of water through plot No. 1630. In addition to that, an estimated claim of Rs. 10,000/- was also made by way of damage caused by the obstruction made by the defendant-respondent. It was claimed that by obstructing in the flow of rain water and sewage water, the water became stagnant on plot No. 1614 as a result of which the land of plot No. 1614 became muddle and the crops thereon were washed away. The further case of the plaintiffs was that they had constructed a pucca house in place of kacha house on municipal plot No. 1615 and began to live in it. Later on, as a result of partition among the family members, the plaintiffs got half portion of that plot and the residential house on the southern side and half portion of M.S. plot No. 1614 fell to the share of the plaintiffs and the plaintiff were in exclusive possession of the same. It was further claimed that the level of plot No. 1614 which belonged to the plaintiffs was at a higher level in comparison with the land adjacent to it being M.S. plot No. 1630 belonging to the defendant-respondent and because of this natural situation of the land, the natural flow of the surplus rain water of plot No. 1614 was in a natural course towards the land of the defendant in M.S. plot No. 1630 and from there the water used to go in the municipal drain near the culvert and used to pass through it. This right of draining off the rain water and sewage water was being exercised by the plaintiffs and their ancestors as a right of easement since times immemorial i.e. more than hundred years. This natural flow of the rain water was as a consequence of the higher level of the land of the plaintiffs which used to pass on to plot No. 1630 and then to the municipal drain and in this way the flow of water was continuing for over hundred years and the plaintiffs, in this way, had acquired a natural right to drain off surplus rain water and sewage water of their land to municipal plot No. 1630 and from there to municipal drain on Hazaribagh road. As such, the plaintiffs had acquired a right to drain out surplus water and to discharge sewage water by way of prescription.

(3.) It was further claimed by the plaintiffs that the defendant, in the year, 1972, started filling up the land of plot No. 1630 with rubbish as a result of which the rain water and sewage water became stagnant on plot No. 1614 and stopped its natural flow from plot No. 1614 to plot No. 1630. Consequently, when rainwater and sewage water began to enter into the house of the plaintiffs because of the obstruction made by the defendant respondent, the plaintiffs had to file the suit seeking the reliefs indicated above.