RAM CHANDER Vs. SHER ALI

JUDGEMENT

(1.) This is a Letters Patent appeal from a judgment in second appeal of a learned single Judge of this Court dismissing the suit of the plaintiffs. The plaintiffs are residents in mohalla Mubarak Shah in the town of Saharanpur and they brought a suit to restrain the defendants from preventing the plaintiffs from using a certain well in that mohalla. The plaintiffs claimed to be owners of the ground in which the well stood and on this portion of their claim the finding of fact of the lower appellate Court that they are not owners is conclusive. In, para 7 of the plaint there is the following pleading: Apart from this, the plaintiff and their predecessors had always a right to take water from the pakka well; and the situation of the well is also such as to afford a right of easement to the plaintiffs as well as to other persons, of drawing water from it. The waste: land also has been used by the plaintiffs for different purposes. For this reason also defendants 1 and 2 have no right to interfere with the plaintiffs using this pakka well or to demolish it, nor can they fill up or demolish the well, nor can they stop the taking of water from it.

(2.) This pleading, in our opinion, amounts, to a claim that the plaintiffs had a right of easement to take water from this well, on the ground that the well was adjacent to the residence of the plaintiffs in that mohalla. After remand there has been a finding of the lower appellate Court to the effect that the plaintiffs have a right of easement to draw water from that well, and that right was not based on any custom. It was also found that the well was situated in land which was adjacent to the land of the defendants, but that it was not situated in the land of the defendants. It had already been found by the lower appellate Court that the well was not situated in the land of the plaintiff. Apparently therefore the finding of fact of the lower appellate Court is that the well was situated in ground which belongs neither to the plaintiffs nor to the defendants. The learned Judge of this Court has allowed the appeal of the defendants on the ground that the plaintiffs are not shown to be the owners of a dominant heritage, and as an easement is a right which by its very definition appertains to the owner or occupier of certain land, it cannot be claimed that they have proved an easement in this case. 111. B, Section 4, Easements Act, is as follows: A as the owner of a certain house, has a right to go on his neighbour B's land, and to take water for the purposes of his household out of a spring therein. This is an easement.

(3.) We consider that in the present case the house of the plaintiffs as in this illustration forms a dominant tenement and that the ground in which the well stands is a servient tenement. It is not necessary for the plaintiffs to prove that the servient tenement is the tenement of the particular defendants who has interfered with their right. It is sufficient for the plaintiffs to show that there is a dominant tenement and a servient tenement and that they have the rights required by Section 4 in order that a right of easement should be established. In the present case the lower appellate Court has found that the plaintiffs have proved that they have such a right of easement. It has also found that the defendant has interfered with that right of the plaintiffs by enclosing this well with a wall and thus preventing the plaintiffs from having access to this well. We consider, therefore, that the decree of the lower appellate Court was correct in ordering the demolition of the constructions made by the defendants, and accordingly we allow this appeal. As regards costs, owing to the fact that the cause of action was set out very vaguely and numerous supposed causes of actions were set out in the plaint, we disallow the plaintiffs any costs whatever up to and including 31 October 1923, the date of the decision of the Munsif. All costs on and after 31 October 1923 we allot to the plaintiffs and order the defendants to pay the same. The defendants are to understand that the three months time for the demolition of the erections and the restoration of the well to its former condition is a peremptory order issuing from this Court, and if it is disobeyed Sher Ali will receive notice to attend this Court to show cause why he should not be dealt with summarily for disobedience of its order.