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2017 Supreme(Ori) 1175
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Ratnakar Mohapatra - Appellant
Versus
Mayadhar Samantaray - Respondent
S.A. No.135 of 1987
Decided on : 13-12-2017
Advocate Appeared:
For the Appellant :Mr. Dayananda Mohapatra, Advocate
For the Respondent:Mr. Bidhayak Pattnaik, Advocate
The central legal point established in the judgment is the requirement of continuous possession for the acquisition of easementary right, as per the Easement Act, Section 15.
Headnote:
Easementary Right - Dispute over Rain Water Passage - Ext.1, Ext.2, Ext.5 - [Easement Act, Section 15] - The court discussed the acquisition of easementary right by the plaintiff over the defendant's property, emphasizing the construction dates and the continuous use of the rainwater passage. The interpretation of the evidence and the legal provisions under the Easement Act, Section 15 influenced the court's decision to dismiss the appeal.
Fact of the Case:
The plaintiff sought declaration of easementary right and permanent injunction over a disputed rainwater passage between his and the defendant's property. The trial court decreed the suit, but the appellate court reversed the decision, leading to the second appeal.
Finding of the Court:
The court found that the plaintiff had not acquired easementary right over the defendant's property as he had not been in continuous possession for 20 years prior to the suit. The appellate court's decision was upheld, and the appeal was dismissed.
Issues: The main issues revolved around the acquisition of easementary right by the plaintiff, the construction dates of the properties, and the continuous use of the rainwater passage.
Ratio Decidendi: The court held that the plaintiff had not acquired easementary right as he had not been in continuous possession for the required period. The appellate court's findings were deemed sufficient and not perverse.
Final Decision: The appeal was dismissed as it lacked merit, and no costs were awarded.
JUDGMENT :
A.K. RATH, J.
1. Plaintiff is the appellant against a reversing judgment. The suit was for declaration of easementary right and permanent injunction.
2. Plaintiff is the owner of plot no.11 appertaining to khata no.76 of mouza-Kundheibenta Sahi, P.S.-Puri (‘A’ schedule land). Defendant is the owner of adjacent plot no.12 appertaining to khata no.22 (‘B’ schedule land). The dispute pertains to eastern boundary of plot no.11 and western boundary of plot no.12 from north to south measuring 82’ x 2’ of land, part of ‘B’ schedule land. The plaintiff asserts that the rain water passes through the aforesaid plot since the time of his vendor’s vendor. According to the plaintiff, the suit ‘A’ land originally belonged to one Suruji Bewa, who constructed her house. She sold the same on 26.12.1958, Ext.1, to Kulamani Rautara. Kulamani sold the property to Rajakishore Singh in the year 1963, Ext.2. Rajakishore sold to Krushna Mohan Rath on 29.2.1964. The plaintiff purchased the house from Krushna Mohan Rath on 31.7.70, Ext.5. The defendant purchased ‘B’ schedule property earlier to the plaintiff. He constructed a house after taking permission from Puri Municipality.
3. The defendant resisted the claim of the plaintiff. According to him, earlier the rain water was flowing through the passage, but was never used as scavenger passage. The plaintiff can make arrangement of ‘Adi’ for free flow of rain water. The specific case of the defendant is that the plaintiff constructed the house 10 to 15 years back and thus no easement accrued in his favour.
4. Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence. Learned trial court came to hold that rain water from the eastern side house roof is being discharged over the suit property from the year 1948 when Suruji Bewa was the owner of plot no.11. The said right was being exercised by the successive purchasers including the plaintiff. Held so, it decreed the suit. Feeling aggrieved, the defendant filed appeal before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Sub-Judge, Puri and renumbered as T.A. No.5/23 of 1985. Learned appellate court held that ‘Adi’ has been constructed only after the plaintiff purchased plot no.11 in the year 1970 and the alternative arrangement of Lodha can be made by the plaintiff. The scavenger passage has been approved by the Municipality. Municipality has not impleaded as a party to the suit. Held so, it allowed the appeal.
5. The second appeal was admitted on the following substantial questions of law enumerated in ground nos.2 to 4 of the appeal memo.
The same are:
“2. For that the learned lower appellate court having rightly held that the rain water from the roof of the plaintiff’s house was falling on plot no.12 of the defendant and from that land the water was being discharged, erred in law in reversing the decision of the learned trial court. It is submitted that the learned Munsif had on correct assessment of the materials on record come to hold that rain water from the roof of the plaintiff’s house was being discharged right from the year 1948 till the date of the suit through the suit passage and was being drained out therefrom. The learned lower appellate court also upheld the finding of the learned Munsif that the rain water from the house of the plaintiff was falling on the land of the defendant which is the scavenger’s passage.
(3) For that the learned lower appellate court reversed the finding of the learned Munsif only on a misreading of the evidence of P.W.2. The learned lower appellate court held that P.W.2 had stated that the plaintiff constructed the house over the purchased land and is residing therein and the inference therefrom was that the house of the plaintiff came into existence only in the year 1970. It is submitted that P.W.2 in his deposition had stated that the suit property was a scavenger’s passage and that rain water from the ea
