BHAGWAN SAHAI Vs. LALA NARSING SAHAI

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are these: The parties are neighbours, their houses adjoining. The defendant- appellant's house lies north of that of the plaintiff-respondent. In the year 1896 the latter building was the property of a person from whom the plaintiff has subsequently purchased. Both houses then were single storied buildings. The northern boundary of the southern house was the south wall of the northern house. Between this wall and the actual building of the southern house was an open bit of land, forming a courtyard of the latter. On this bit of land two water-spouts discharged the rain water which fell upon the roof of the defendant's house.

(2.) The plaintiff's vendor wished to extend his building up to the wall of his neighbour and to support the roof of the extension by fixing his beams into the defendant's wall. He appears to have approached his neighbour and they came to an agreement evidenced by the document of 10 March, 1896. The document was not registered. The defendant acquiesced in the request in return for a consideration which was that the water from his spouts should continue to discharge the rain water on the roof of the extension, and if in the future he should build a second storey to his house he should also be allowed to discharge the extra water, used daily for house-hold purposes in that storey, through the two spouts, on to the roof of the extension.

(3.) To this the plaintiff's vendor agreed. The material part of the agreement has been translated in the judgment of the first appellate Court as follows and this may be taken to be correct. Inasmuch as there is a masonry wall and from that wall two spouts have always discharged into my house and as I desire to place the beams of my house on the aforesaid wall etc., and I shall take and carry away the water of the two spouts on the roof of my house; and whenever the aforesaid owner shall build a second storey on his house and shall arrange to discharge his daily water, I shall bear the burden of that too and the arrangement for the carrying away of that water shall be upon me. I shall never object to this etc." The extension of the house was carried out.