The natural flow of water from the land of the plaintiff must pass on to the land of the defendant, and the defendant is not entitled to obstruct such flow.

Mahajan, J.

1. This appeal under Clause 10 of the Letters Patent arises out of a suit filed by Sampuran Singh against Arjan Singh and others for mandatory and perpetual injunction restraining defendant No. 1 from obstructing the natural flow of water through his house. The other defendants are merely pro forma defendants. It was pleaded by the plaintiff that he had acquired a right of easement with regard to the natural water as well as the sullage water for a period of more than 20 years. In the alternative, it was pleaded that so far, the natural water is concerned, he was entitled to easement of necessity. On the pleadings of the parties, the following issues were framed :

1. Whether the suit is bad for misjoinder of parties?

2. Whether the plaintiff is not entitled to bring this suit on account of laches and acquiescence on his part?

3. Whether the water of the house of the plaintiff and defendant No. 2 passed through the house of Arjan Singh defendant No. 1 by a drain situated towards the western side of his house and the plaintiff has acquired a right of easement by way of prescription?

4. Whether Arjan Singh defendant No. 1 has closed the drain passing through his house about a month and a half before the institution of the suit?

5. Whether the plaintiff is, by way of easement of necessity, entitled to pass the water of his house through the house of Arjan Singh defendant No. 1 by a drain?

The only issues, which are relevant for the present purposes, are issues Nos. 3, 4 and 5. The trial Court decreed the suit in its entirety and on appeal the learned District Judge, Sangrur, upheld the decision of the trial Court with a slight modification, the modification being that the plaintiff was entitled to pass the natural water from his land or to the land belonging to the defendant, but not the sullage water. On appeal to this Court, the matter came up before Mehar Singh, J.

The learned Single Judge reversed the decision of the Courts below and dismissed the plaintiffs suit According to the learned Single Judge, the plaintiff had not pleaded a case of easement under Section 7 of the Easements Act and he having failed to prove the acquisition of an easement as pleaded for over a period of twenty years and also a right of easement under Section 13 of the Easements Act, he was not entitled to rely on the easement available to him under Section 7 of the Act. Section 7 of the Easements Act is in these terms :

"7. Easements are restrictions of one or other of the following rights (namely): (a) * * * *

(b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Illustration

(1) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto."

The learned Single Judge was also further of the view that illustration (i) ruled out the right of the plaintiff to flow the natural water through a defined channel. On a certificate being granted, the plaintiff has preferred the present appeal under Clause 10 of the Letters Patent

2. After hearing the learned counsel for the parties, we are of the view that this appeal must succeed. It is clear from the pleadings of the parties that the plaintiff did set out the case in the alternative that the only way in which he can pass the natural water from his land was over the defendants land. There is no other way for the escape of this natural water. No doubt the plaintiff in the plaint used the word easement of necessity but that will not, in my opinion, make any difference.

It is well settled that in pleadings only facts-have to be pleaded and not the law. On given facts whether the case falls under Section 13 or Section 7 of the Easements Act is a question, which cannot be said to be outside the jurisdiction of the