DWARKA PRASAD SINGH Vs. PATNA CITY MUNICIPALITY

JUDGEMENT

(1.) This is an appeal by the plaintiffs, owners of a holding No. 17 in Circle No. 11 of the Patna City Municipality.

(2.) The dispute relates to a strip of land lying immediately to the east of the compound wall of this holding. Between this strip and a public road called the Convent road which runs on the east of it there was, according to the plaintiffs, a kutcha drain which received the drainage from their grounds through openings in the compound wall and carried it south, wards into a pucca drain by the side of the Main Road from Bankipur to the City. In February 1933 the Municipality, defendant 2, gave a lease of the strip and some more land to the east (the kutcha drain having already disappeared) to defendant for the erection of "a petrol pump, underground tank and petrol kiosk." Defendant 1 began the work of erection, and in April 1933 the plaintiffs brought the present suit for recovery of possession of the strip which they claimed as their property and for the restoration of the kutcha drain.

(3.) In the alternative they claimed easements of drainage, passage, road frontage, etc. together with restoration of the strip and the drain to their former condition They also applied at once for a temporary injunction against the continuation of the work of erection, but the trial Court refused it on defendant 1 filing an undertaking to waive all objections to the demolition of the construction made by him in case the plaintiffs succeeded in the suit. The plaintiffs later on gave up their claim to be owners of the land in suit. The trial Court thus dealt with the suit as one for the removal of the entire construction made by defendant 1 and for restoring the land and drain to their original condition. The defence was a denial of the easements claimed by the plaintiffs--the kutcha drain, it was pleaded had ceased more than 12 years previously. The defence also asserted that the Municipality was entitled to lease the land to defendant 1 as it had done and that defendant 1 was entitled to use the land in accordance with the lease. The trial Court found that the plaintiffs were entitled to discharge into a kutcha drain to the east of the disputed strip of land the water of their compound through the openings in the wall which had been blocked by the construction of defendant 1, that this right of easement had not been interfered with beyond the statutory period of limitation and that they had a right of passage all over the strip to the Convent road.