KASHIBHAI KALIDAS PATEL Vs. VALLAVBHAI WAGJIBHAI PATEL

JUDGEMENT

(1.) The plaintiff sued to obtain various perpetual injunctions against the defendant. The first was to restrain the defendant from discharging rain-water on to plaintiff's land at a particular place. The second was an injunction to the defendant to remove the projection over the khadki wall and the suit land. The third was to restrain the defendant from making the intended dattan (cess-pool).

(2.) The plaintiff succeeded in both the Courts in getting an injunction restraining the defendant from making the intended dattan, the remaining portions of the claim being rejected. The lower Court had come to the conclusion that because the plaintiff had allowed the defendant's eaves to project and rain-water to be discharged over his land for nearly twenty years, he was thereby barred from coming to a Court of Equity for relief. The learned appellate Judge went further than this and held that the plaintiff had lost his title to the laud up to the line of the defendant's projections, which had existed over twenty years. That would be a very startling decision and it was obviously wrong.

(3.) All that the defendant could acquire by prescription would be an easement imposing the burden on the servient tenement of having that projection over it. Even if he acquired the right to project his roof over the plaintiff's land and to discharge rain-water over the plaintiff's land, he could not acquire a title to the plaintiff's land. His rights would be in the nature of an easement, which he could only acquire either by grant or by prescription, and it is admitted by the defendant that he had not acquired any easement.