BRIJ MOHAN LAL Vs. HAZARI LAL

JUDGEMENT

(1.) The question referred to this Bench for decision arose in the consideration of a second appeal in a suit in which the plaintiff sought for an order from the Court directing the defendants to open certain drains and for an injunction against the defendants restraining them from interfering with the plaintiffs right to drain off the rain water and sewage from their house through these drains. The Court of first instance dismissed the suit. The order of the first Court was modified by the lower appellate Court. In second appeal an injunction was granted to the plaintiff restraining the defendants from closing the drains so as to prevent the rain water flowing from the plaintiff's house through the drains. So far as the latrine water is concerned however the plaintiff's prayer was refused upon the ground that the right to drain sewage water was not a continuous easement within the meaning of Secs.5 and 13, Easements Act. It was not disputed that the easement was apparent and necessary for the plaintiff's enjoyment of his share of the property. It was denied however that the easement claimed by the plaintiff was continuous within the meaning of the provisions of the Easements Act. According to Section 5 of the Act a discontinuous easement is one that needs an act of man for its enjoyment and the ratio decidendi of the Court's order in second appeal was that the flowing of latrine water through a drain necessitated the act of man.

(2.) The parties it appears were co-sharers in certain house properties which were partitioned in 1925, one portion being allotted to the plaintiffs and the other to the defendants. The drain, which is the subject of the dispute, had been in existence long before the partition and had carried off both the rain water and the latrine water from the property. By Section 13(f) if an easement is apparent and continuous and necessary for the enjoyment of the share allotted to one of the parties on partition as that share was enjoyed when partition took place, such party shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Illus. (h) appended to this section is as follows: A, the owner of two adjoining houses, Y & Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.

(3.) In refusing the plaintiff's prayer in relation to latrine water in second appeal the learned Chief Justice followed the decision in Sajid-un-nissa Bibi V/s. Hidayat Hussain 1924 22 ALJ 425. This is a single Judge decision. The learned Judge who decided the case held that the right to drain latrine water was an easement which was apparent but not continuous because the drainage of latrine water required an act of man. This decision appears to be the only authority in support of the proposition that the right to drain sewage from a latrine is not a continuous easement within the meaning of Secs.5 and 13, Easements Act. Learned Counsel for the plaintiff cited in support of the contention that the right to drain sewage from a latrine on to a servient tenement is a continuous easement within the meaning of the Easements Act, the following cases: Bishambhar Nath v. Jagannath Prasad 1915 29 IC 695; Chintakindy Parvatamma V/s. Lanka Sanyasi, (1911) 34 Mad 487; Morgan V/s. Kirby (1878) 2 Mad 46; M. Gangulu V/s. T. Jagannatham 1924 Mad 108; Kartic Manjhi V/s. Banamali Mukerji 1930 Pat 7. In Bishambhar Nath V/s. Jagannath Prasad 1915 29 IC 695 it was held that by virtue of Section 13, Clause 3(d), Easements Act, the plaintiff had a right to flow water from the kitchen of his house through the drain on to the defendant's property. In Chintakindy Parvatamma V/s. Lanka Sanyasi,(1911) 34 Mad 487 it was decided that a drain from one land to another is a continuous easement within the meaning of the Easements Act. In the course of his judgment in that case Wallis, J., remarked: It is well settled that a drain is a continuous easement, see among other cases Pearson V/s. Spencer,(1861)1 B & S 571, which expressly contrasts continuous easements such as drains with discontinuous easements, such as right of way, also Pyer V/s. Carter (1857) 1 H&N 916, which has never been questioned on this point.