AMBICA SARAN SINGH Vs. DEBI SARAN SINGH

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought by the plaintiffs for possession of two plots of land, one lying to the north of their courtyard and the other to the south of it, and for the removal of constructions made on those plots of land by the defendants. We are not concerned with the southern plot of land in this appeal. The controversy in this appeal relates only to the plot lying to the north of the plaintiffs courtyard. The plaintiffs put forward their claim in regard to this plot on two grounds : first, that the plot of land in dispute was part of their courtyard of which they were in possession and secondly, that their land being on a higher level the water from their land flows over the land in question and the construction of a dalan on it by the defendants obstructs the flow of the water.

(2.) The Court of first instance, holding that the land did not belong to the plaintiffs and that they had not been in possession within 12 years, dismissed the suit. Off appeal the lower Appellate Court agreed with the first Court as regards the plaintiffs allegation as to the dalan having been built on a part of the plaintiffs sahan. The learned Judge says : "I am not satisfied that the land on which the dalan has been built is the sahan of the plaintiffs. . . .

(3.) . . The plaintiffs possession over that land is not established." He further finds that the evidence adduced proves that the rain water from the plaintiffs house used to flow partly towards the east into a small pond and partly towards the north across the land in dispute on to the river Gomti and that the dalan in dispute obstructs the flow of the water towards the north." He then holds that "the defendants had no right to build the dalan outside their sahan and thereby to obstruct the flow of surplus rain water towards the north across the land in dispute." The learned Judge made a decree directing the dalan to be removed and the land restored to its former condition, so as to admit of the free discharge of the rain water from the plaintiffs house and sahan across the defendants land towards the north." He further found that the plaintiffs land was on a higher level and that the rain water falling on their house and courtyard had been drained off towards the north "from time immemorial, i.e., from not less than 25 or 30 years."