YADLA GURUNAIDU Vs. THALABATHULA KANAKAYYA

JUDGEMENT

(1.) Three points have been urged in this appeal by the defendants against the decree granting an injunction against them from obstructing the plaintiff's use and repair, where repair is needed, of an underground channel stretching from the point C in the plan to the point R, the greatest part of which runs across and under a public pathway marked public Rastha in the plan.

(2.) The first point is purely technical and may very shortly be disposed of. It is that when the appeal was pending in the lower appellate Court, the then respondent 3, Boddala Fapayya, alleged to be a nephew by a sister of respondent 1, died on 10 June 1932, but that the then appellant (plaintiff) respondent here took no steps to bring on record his legal representative and when the judgment was pronounced on 27 August 1932, the deceased respondent Papayya was not represented at all. Hence it is argued that the judgment of the lower appellate Court, sq far as that respondent was concerned is void and of no effect. It ought to be sufficient to say that, if so, the said respondent's widow and legal representative, the pre sent 4 appellant, need not have taken the trouble to join in the present appeal in order merely to assert that there was nothing to appeal against so far as she was concerned. On her own showing, the 4 appellant's appeal is incompetent and must be dismissed. But in this connexion it is as well to refer to the remarks of the Privy Council in Mahomed Wajid Ali Khan V/s. Puran Singh 1929 All. 58, where there Lordships point out that it was the duty of the respon. dent's counsel in the lower Court to have brought this matter to the notice of the lower appellate Court when it was possible to cure the defect. Of course, it is possible that he was not aware of it. But we are not unfamiliar with the practice of litigants keeping such matters to themselves in order to create difficulties for their opponents and this is a practice which is condemned, as indeed must be condemned, by all right-thinking persons by the highest Judicial authority.

(3.) The second objection raises rather an interesting point, on which I have been told by the learned gentlemen on both sides that the only available authorities in this Court are not widely reported and therefore I am much obliged to them for bringing to my notice the decision by Jackson, J., reported in Srinivasa Chettiar V/s. Aravamudha Ayyangar (1930) M.W.N. 611, and on appeal therefrom by the learned Chief Justice and Bardswell, J., reported in Aravamudha Ayyangar V/s. Srinivasa Chettiar (1934) M.W.N. 110. The question arises in this way. Between the points C and R lies the public Rastha under which the greater part of the length of the underground channel, which defendants are alleged to have obstructed, runs. The appellant's argument is that where the plaintiff's land, the dominant tenement, and the defendant's land, the servant tenement are not contiguous but separated by a public road or path, way, the dominant tenement is incapable of acquiring by prescription an easement to discharge water from the dominant tenement into the servient tenement because it can only do so by discharging the water on to the public way thus committing a nuisance and no prescriptive right to commit a nuisance can be acquired. For this argument the decision in Khudiram v. Surendra Nath 1914 Cal. 358, was relied upon where the overflow from the plaintiff's tank had to go over a public path and then pass through the defendant's land. In those circumstances the Court held, relying inter alia on Comyn's Digest Title Prescription F-2, that there can be no prescription to make a common nuisance, and it was observed that the plaintiff is bound to show that he has acquired a right to carry water by lawful means to the boundary of the land of the defendants before he can claim to have acquired a right to discharge that water into the defendants tank through a channel on another's land.