NAGAR MAL Vs. DHANI RAM

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment and decree dated 31 -07 -1996 formulated by Learned District Judge. Kathua. By the aforesaid judgment and decree the Learned District Judge set aside the judgment and decree dated 25 -07 -1994 passed by Munsiff, Hiranagar and dismissed the plaint of the appellant/plaintiff.

(2.) SETTING in facts of the case appellant / plaintiff commenced a suit for permanent injuntion in claiming to be the owner in possession of the house located in village Harsath Tehsil Hiranagar. constructed by him in the year 1959. asserted that the entire water of the plaintiffs house has been discharging upon the defendants land through points 1,2, and 5 across the western and southern side of the plaintiffs house and also the water from the roof of the plaintiffs house discharging or flowing through a spout from point 6 and also the plaintiff enjoying air and light to his house from the ventilators opening towards the land of the defendant on the western and southern side of his house described explicitly as points 7, 8. 9,10 and 11 in the sketch map prepared by the patwari right from the year 1959 continuously openly, peacefully and uninterruptedly to the knowledge of the defendant / respondent and thus perfected a right of easement by prescription. It was further submitted by the plaintiff/appellant that the defendant/respondent had started causing blockade in the flow of the water through points 1. 2. and 5 and also in the discharge of the water from the roof of the house of the plaintiff from point 6. besides, making endeavour for the closure of air and light enjoyed by the plaintiff to his house through ventilators from points 7. 8. 9, 10, and 11 with purposive intent, in order to curtail and cause obstruction to the enjoyment of the easementary rights, which occasioned a cause of action by the plaintiff/appellant against the defendant/respondent to prefer a suit for permanent injunction in restraining the defendant/respondent from causing blockade or obstruction to the discharge of the water of the house of the plaintiff through points 1, 2 and 5 by laying beds alongside across the western and southern walls of the plaintiff/ appellant towards the defendants own side growing flowers and watering the beds thereby damaging the plaintiffs house storing dumping fire wood on earth alongside the wall of the plaintiffs house making attempts to cause a closure of the ventilators kept in the southern and western wall of the house of the plaintiff at points 7 to 11 which otherwise can result in diminishing the plaintiffs right of easement to enjoy such right of light and air causing obtruction to the discharge of the water of the plaintiffs/appellants roof through spout at point no 6 delineated in the sketch map and futher refrain from doing any act or omission, which may cause damage to the house of the plaintiff and interfere in the enjoyment right of easement of the plaintiff acquired by prescription by the extent of use and enjoyment thereof during the prescriptive period. Appellant/plaintiff however introduced a plea directing the defendant/respondent to remove the obstruction and blocklade from points 1 and 2 resulting in blockade of the continuous flow of the water of the plaintiffs house upon the defendants land by amendment of the plaint subsequently. The defendant/respondent in his demurrer, however, did not dispute the ownership of the plaintiff/appellant of the house, but denied the same to have been constructed as per the sketch map. That the sketch map has not been prepared in accord with the position existing on spot. It was also denied by the defendant / respondent that the water of the plaintiffs house came on the defendents land from points 1, 2 and 5 since 1959 and therefore, appellant/plaintiff cannot be said to have acquired the right of easement by prescription in respect thereof. According to the defendant/respondent only at the time of marrige of the plaintiffs daughter about four years back the defendant permitted the flow of surplus water through points 2 and 5 on his land on being approached by the plaintiff. That the defendant allowed the plaintiff to discharge the water of his kitchen in the Court yard to flow from his land through point 2 and 5 temporarily on the assurance by the plaintiff that the same shall be closed after the marrige of his daughter and when the plaintiff started renovation of his building. The discharge of the water was however closed from point 5 by the plaintiff after six months when renovation of his house started but continued the discharge of the water from point 2 inspite of a request from the defendant. It is further submitted by the defendant that the discharge of the water from point 2 however was closed by him prior to the filling of the suit. The draining of the water from point 1 was also however, opened by one Ram Lal with the consent of the defendant on the marrige of Ram Lals brother and at the time of plaintiffs daughter about four years back, when the appellant/plaintiff also started going through defendant land in the open field to answer the call of nature. This was however closed by Ram Lal after the marrige by putting a permanent iron gate about seven months prior to the filing of the suit and thus emphatically denied the plaintiff claim of acquiring right of casement through point 1 . It is further submitted by the defendand/respondent that the plaintiff/appellant was allowed to discharge the water of his roof through a spot at point 6 and that also to keep the ventilators at points 7 to 11 as shown in the sketch map for light and air to his house on a promise that the plaintiff/appellant shall close the said flow of water from point 6 and the ventilators on the western and southern sides at the time of construction of the house of the defendant or when the defendant feels inconvenience. The defendant futher admitted to have slopped the flow of the water of the plaintiffs house from points 1 and 2 into his land before the filing of the suit. He has futher denied that the appellant/plaintiff has acquired any right of easement with regard to the flow of water of his house from points 1, 2. 5 and 6 and also enjoyment of light and air through ventilators from points 7 to 11 by prescription. That the fire wood has been stocked and also laid beds on his own land toward southern wall of the plaintiff s house in order to block the flow of the water from the plaintiffs house to his land and also light and air received across his land, and in refuting the claim of the plaintiff/ appellant to have acquired an easement prescriptive right in respect thereof by its exercise openly for a statutory period. Consistent with the contents and contour of the pleadings the following issues came to be framed for settlement by the trial court.

(3.) THE following substantial question of laws having been shown to have arisen in this civil second appeal.