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PATNA HIGH COURT
L.P.N.Shahdeo, J.
Anu Sundar
Versus
Shiva Narain
Appeal from Original Decree No. 40 of 1978 ;
Decided On : OCTOBER 30, 1987
EASEMENT - RIGHT TO DRAIN RAIN WATER AND SEWAGE WATER - LIMITATION - OBSTRUCTION - SUIT FOR DECLARATION AND INJUNCTION - DISMISSAL - APPEAL - [S.25(2) OF THE LIMITATION ACT, 1963]
Fact of the Case:
Plaintiffs filed a suit for declaration of their right to drain rain water and sewage water from their house through the defendant's plot, and for permanent injunction restraining the defendant from obstructing the flow of water. The trial court dismissed the suit, holding that the plaintiffs had failed to prove acquisition of right by way of easement or prescription, and that the claim of damages was vague and uncertain.
Finding of the Court:
The court held that the plaintiffs had failed to prove the existence of any specified course of flow of the rain water or sewage water, and that the defendant had made provision for the flow of water by constructing a drain adjacent to his pucca wall on his own land. The court also held that the suit was barred by limitation, as the first obstruction to the flow of water had occurred in 1961 and the suit was filed in 1972, more than two years later.
Issues: 1. Whether the plaintiffs had acquired a right to drain rain water and sewage water through the defendant's plot by way of easement or prescription? 2. Whether the defendant had obstructed the flow of water? 3. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The court held that the plaintiffs had failed to prove the existence of any specified course of flow of the rain water or sewage water, and that the defendant had made provision for the flow of water by constructing a drain adjacent to his pucca wall on his own land. Therefore, the plaintiffs had not acquired a right to drain water through the defendant's plot. 2. The court held that the defendant had not obstructed the flow of water, as he had made provision for the flow of water by constructing a drain adjacent to his pucca wall on his own land. 3. The court held that the suit was barred by limitation, as the first obstruction to the flow of water had occurred in 1961 and the suit was filed in 1972, more than two years later.
Final Decision: The court dismissed the appeal and confirmed the judgment and decree passed by the trial court.
1. This appeal is directed against the judgement dated 17th July, 1978 passed in Title Suit No. 172 of 1972 by the Second Addl. Subordinate Judge, Ranchi dismissing the suit of the plaintiffs-appellants on contest with costs.
2. The plaintiffs had filed the suit for declaration that they had a right to drain out the surplus rain water and sewage water of their house situated on plot No. 1614 through M.S. Plot No. 1630 belonging to the defendant-respondent. A prayer was. also made for permanent injunction restraining the defendant from obstructing the flow of water through plot No. 1630. In addition to that, an estimated claim of Rs. 10,000.00 was also made by way of damage caused by the obstruction made by the defendant-respondent. It was claimed that by obstructing in the flow of rain water and sewage water, the water became stagnant on plot No. 1614 as a result of which the land of plot No. 1614 became muddle and the crops thereon were washed away. The further case of the plaintiffs was that they had constructed a pucca house in place of kacha house on municipal plot No. 1615 and began to live in it. Later on, as a result of partition among the family members, the plaintiffs got half portion of that plot and the residential house on the southern side and half portion of M.S. plot No. 1614 fell to the share of the plaintiffs and the plaintiff were in exclusive possession of the same. It was further claimed that the level of plot No. 1614 which belonged to the plaintiffs was at a higher level in comparison with the land adjacent to it being M.S. plot No. 1630 belonging to the defendant-respondent and because of this natural situation of the land, the natural flow of the surplus rain water of plot No. 1614 was in a natural course towards the land of the defendant in M.S. plot No. 1630 and from there the water used to go in the municipal drain near the culvert and used to pass through it. This right of draining off the rain water and sewage water was being exercised by the plaintiffs and their ancestors as a right of easement since times immemorial i.e. more than hundred years. This natural flow of the rain water was as a consequence of the higher level of the land of the plaintiffs which used to pass on to plot No. 1630 and then to the municipal drain and in this way the flow of water was continuing for over hundred years and the plaintiffs, in this way, had acquired a natural right to drain off surplus rain water and sewage water of their land to municipal plot No. 1630 and from there to municipal drain on Hazaribagh road. As such, the plaintiffs had acquired a right to drain out surplus water and to discharge sewage water by way of prescription.
3. It was further claimed by the plaintiffs that the defendant, in the year, 1972, started filling up the land of plot No. 1630 with rubbish as a result of which the rain water and sewage water became stagnant on plot No. 1614 and stopped its natural flow from plot No. 1614 to plot No. 1630. Consequently, when rainwater and sewage water began to enter into the house of the plaintiffs because of the obstruction made by the defendant respondent, the plaintiffs had to file the suit seeking the reliefs indicated above.
4. The defendant-respondent contested the suit by filing written statement alleging, inter alia in general terms that the suit was barred by law of limitation, adverse possession and was not maintainable in the present form. It was admitted that plot No. 1614 belongs to the plaintiffs but it was denied that plot No. 1614 is at the higher level than that of plot No. 1630. It was claimed that both the plots are in the same level. It was further claimed that there are two drains; one running from west to east and the other from east to west. The water from the two drains after meeting at a point flows through a drain running from north to south. In fact, part of defendants land being M.S. plot No. 1630 adjoining to plaintiffs land being M.S. plot No. 1614 was left by t
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