VISALAKSHI AMMAL Vs. GOKULDAS DAYAL SAIT (DECEASED)

JUDGEMENT

(1.) This appeal arises out of a suit filed by the appellant in the Court of the District Munsif of Salem for a declaration that a drain adjoining the eastern wall of her house was her private property and that the defendant-respondent was not entitled to let into the drain sewage from his house. The appellant is the owner of a house which fronts a main road within the Municipal area of Salem. The respondent has also built a house fronting the same road. His property is separated from the appellant's property by a public lane. The respondent applied to the Municipal Council for permission to carry two channels across this public lane and connect them with the drain on the appellant's property. Permission was granted and as the result connections with the appellant's drain were made. The appellant objected, but the work having been carried out she instituted the present suit. The respondent filed a written statement in which he averred that the drain on the appellant's property was a public drain and that the Municipal Council had acted within its powers in sanctioning the connections.

(2.) The District Munsif held that the drain was the private property of the appellant and that the respondent had no right to discharge into it the sewage from his house. Consequently, the District Munsif granted the appellant the relief which she sought. The respondent appealed to the District Court of Salem. The District Judge concurred in the finding of the District Munsif that the drain was the private property of the appellant and that finding is now conclusive. But even if it were not, there is no doubt that the drain lies entirely on the appellant's property except to the extent of a connection which has been made with the public drain running in front of the two houses Before the respondent made the connections complained of the appellant's drain was used entirely for the purpose of draining the appellant's property. The District Judge allowed the appeal ca the construction which he placed on Section 61(1) of the Madras District Municipalities Act, 1920. He considered that the section operated to vest the drain in the Municipal Council and consequently the Council had the power to allow the respondent or other neighbouring house-holders to conduct the sewage from their houses to this drain. The District Judge, however, thought that it was necessary to ascertain whether the flow of sewage from the respondent's house into this drain constituted a nuisance. This question had not been canvassed in the trial Court, but holding the view that it was necessary to decide this matter, the District Judge called for a rinding from the District Munsif. The District Munsif recorded further evidence and reported to the District Court that no nuisance would be created. This finding was accepted by the District Judge, who thereupon allowed the appeal.

(3.) The appellant contends that the District Judge has misread Section 61 and that on a proper construction of it and other relevant sections of the Act the decision of the District Munsif was correct. Section 61(1) reads as follows: All public streets in any municipality, with the pavements, stones and other materials thereof, and all works, materials and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the Municipal fund or otherwise, in, alongside or under any street, whether public or private, and all works, materials and things appertaining thereto shall vest in the Municipal Council.