GAJADHAR Vs. RAI SAHEB BKISHORI LAL

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of execution proceedings. The parties are neighbours and own adjoining houses. About the year 1899; the defendant began to build a wall and the plaintiff apprehended that by its construction it would block among other things a water spout on the second storey. He instituted a suit claiming an injunction restraining the defendant from blocking this water spout. It is unnecessary to refer to the other reliefs which were claimed in that suit. The suit resulted in a compromise dated the 5 of January, 1900, and it is really the ambiguity of this compromise which is the cause of the dispute on the present occasion. Under that compromise it was provided that the water spout of the rasoi khana (kitchen) should be continued as previously and that the defendant would not interfere with it in any way.

(2.) Some years afterwards the plaintiff-decree holder began to use this rasoi khana as a room, where, in the words of the learned Munsif, "water was stored, where utensils were cleaned, and for washing hands after the meals and occasionally for bathing purposes". The defendant, on this, blocked the water spout totally. The plaintiff-decree holder applied for execution of the decree asking the Court to get the obstruction removed. The Court of first instance came to the conclusion that the plaintiff was not entitled to alter the nature of the water that was to flow through the water spout. It remarked "If this was not the kind of water that flowed at the date of the compromise, the compromise cannot be enforced".

(3.) It is apparent that the learned Munsif took an extreme view and ignored the provisions of Section 23 of the Easements Act, under which a dominant owner may from time to time alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. The mere alteration of the kind of water did not deprive the plaintiff of his right of easement unless an additional burden was cast on the servient heritage.