1981 Supreme(All) 375

IN THE HIGH COURT OF ALLAHABAD
B. N. Sapru, J.
MAHESHWARI PRASAD - Appellant
Versus
MUNNI LAL - Respondents
Second Appeal 150 Of 1974
Decided On : 09/08/1981

A customary right to draw water from a well can exist, and such a right can be established by hearsay evidence of immemorial user. An injunction can be granted to protect a customary right to draw water from a well, even if the water is unfit for human consumption, if the balance of convenience favors the plaintiffs.

Headnote:

CUSTOMARY RIGHT TO DRAW WATER FROM WELL - EASEMENTS ACT, 1882, SECTION 47 - MUNICIPALITIES ACT, SECTION 225(2) - INJUNCTION - BALANCE OF CONVENIENCE - EDUCATIONAL INSTITUTION - PUBLIC POLICY - Plaintiffs claimed customary right to draw water from well - Lower court dismissed suit finding no customary right and water unfit for consumption - Held: Customary right to draw water from well exists - Hearsay evidence admissible to prove immemorial user - Injunction granted restraining private respondents from interfering with plaintiffs' right to draw water, subject to Municipal Board's power to close well under Section 225(2) of Municipalities Act - Balance of convenience favors plaintiffs as educational institution can expand without interfering with well.

Fact of the Case:

Plaintiffs, residents of Mohalla Thatharaee Bazar, Banda City, sued for a perpetual injunction restraining defendants from interfering with their right to draw water from a well in the Mohalla. They alleged that the well was constructed by Raja of Ajaigarh and dedicated for public benefit, and that they and their predecessors had been drawing water from it since time immemorial. The private defendants claimed that the well was situated on Nazul property leased to them for running an educational institution, and that the water was unfit for human consumption.

Finding of the Court:

The trial court decreed the suit, but the lower appellate court dismissed it, finding that the plaintiffs had not established a customary right to draw water from the well, and that the Municipal Board had the power to close the well under Section 225(2) of the Municipalities Act if the water was unfit for drinking purposes.

Issues: 1. Whether there can be a customary right to draw water from a well? 2. Whether the plaintiffs had a customary right to draw water from the well in question? 3. Whether the lower appellate court erred in holding that the plaintiffs' right to draw water from the well had been extinguished by disuse? 4. Whether hearsay evidence is admissible to prove immemorial user? 5. Whether an injunction could be granted in view of the Municipal Board's power to close the well under Section 225(2) of the Municipalities Act? 6. Whether an injunction should be granted in view of the evidence that the water was unfit for human consumption?

Ratio Decidendi: 1. A customary right to draw water from a well can exist. 2. The plaintiffs had a customary right to draw water from the well in question, as evidenced by their immemorial user. 3. The lower appellate court erred in holding that the plaintiffs' right to draw water from the well had been extinguished by disuse, as Section 47 of the Easements Act, which provides for the extinguishment of easements by disuse, does not apply to customary rights. 4. Hearsay evidence is admissible to prove immemorial user, as an exception to the general rule against hearsay evidence. 5. An injunction could be granted in view of the Municipal Board's power to close the well under Section 225(2) of the Municipalities Act, as no order under that provision had been made by the Municipal Board. 6. An injunction should be granted in view of the evidence that the water was unfit for human consumption, as the inconvenience to the plaintiffs of having to draw water from another source outweighed the inconvenience to the educational institution of not being able to expand.

Final Decision: The appeal was allowed, the impugned order was set aside, and an injunction was issued restraining the private respondents from interfering with the plaintiffs' user of the water from the well, subject to the Municipal Board's power to have the well closed in accordance with the provisions of the Municipalities Act.