SURAJ PRAKASH Vs. JAGDISH RAJ

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the concurrent decision of the courts below dismissing a suit for injunction. The parties are the owners of the adjourning houses. The defendant has kept four water spouts for the disposal of rain water and sewage water from the roof of his house on the compound of the plaintiff. He has also kept one gala (opening) in his house which is used as an outlet for dumping rubbish in the compound of the plaintiffs. The plaintiffs asked for a mandatory injunction directing the defendant to remove the water spouts and close the Gala. Their case was that the defendant had no right or title to keep the water spouts or the Gala at their present, place and they were a source of nuisance to them. In reply, the defendant pleaded that he was the owner of a two feet wide strip of land adjoining his house in the compound of the plaintiffs which has been used as a site for discharging water from the water spouts as also a dumping ground for rubbish evacuated through the Gala and that, in any event, such user had extended for over a period of twenty years and ripened, by prescription, into right of easement. During the pendency of the suit the defendant died. His legal representatives were brought on record and are arrayed as respondents in the present appeal. The trial court negatived the plea of ownership. The court however upheld the plea of easement observing as follows:--

(2.) The lower appellate court agreed with the conclusion of the trial court and incidentally added:

(3.) The argument of the learned counsel for the plaintiffs is that the lower courts have committed an error of law in holding on the facts of the present case that the defendant had, by prescription, acquired the right of easement. In order to appreciate the argument it would be necessary to give a few more facts. Prior to the institution of the present suit, the defendant had brought a suit for permanent injunction, being civil suit No. 96 of 1956 on the file of Additional District Judge, Jammu, restraining the present plaintiffs from entering into possession or raising any construction over two feet land constituting a buffar area between the northern and eastern walls of his house and compound adjoining the house of the plaintiffs. His case was that he was the owner and, alternatively, he had acquired, by prescription, right of easement over this strip of land. At the trial, he did not press his case based upon the right of easement and confirmed his claim to ownership. The claim was rejected concurrently by lowar courts and the rejection was affirmed by the High Court.