Back
Allahbad High Court
M.P.MEHROTRA
Ram Narain Choubey - Appellant
Versus
Gangadhar Choubey - Respondent
Decided On : 02/25/1974
EASEMENTS - ACQUISITION BY PRESCRIPTION - RIGHT TO FLOW WATER - SECTION 17 (C) OF THE INDIAN EASEMENTS ACT - INTERPRETATION - VILLAGE ABADI ACT, 1948 - SECTION 4 (B) - APPLICABILITY - EASEMENTS - ENJOYMENT - INTERRUPTION - SECTION 15 OF THE INDIAN EASEMENTS ACT - INTERPRETATION - EASEMENTS - EXTENT OF ENJOYMENT - ADJUSTMENT WITH RIGHTS OF SERVIENT OWNER - SECTIONS 22, 24 AND 28 OF THE INDIAN EASEMENTS ACT - INTERPRETATION.
Fact of the Case:
Plaintiff claimed easement rights of passage and flowing water over disputed land ABCD, alleging long user and prescription. Defendant denied the rights, claiming ownership of the land and asserting that the disputed land had always been covered by a 'chappar'. The trial court and lower appellate court decreed the suit, holding that the plaintiff had successfully proved his claim to the easements and that the defendant was not entitled to put up the walls and 'chappar'.
Finding of the Court:
The High Court held that the plaintiff had acquired the easement rights of passage and flowing water over the disputed land by prescription under Section 15 of the Indian Easements Act. The Court rejected the defendant's contention that the right to flow water was not acquired as it fell under Section 17 (c) of the Act, which excludes rights to surface water not flowing in a stream or permanently collected in a pool or tank. The Court found that the water flowing from the plaintiff's Nabdan (spout) constituted a defined stream or channel and did not fall under Section 17 (c). The Court also rejected the defendant's contention that the easements were not acquired as they were not apparent and continuous, holding that the right of way over the defendant's land was a discontinuous easement and could be acquired by prescription under Section 15. The Court further held that the defendant's constructions on the disputed land obstructed the plaintiff's easements and were not protected by Section 4 (b) of the Village Abadi Act, 1948, which allows house-owners to make constructions for agricultural or domestic purposes. However, the Court modified the lower court's decree, directing that only a portion of the defendant's constructions be demolished to create a clear passage for the plaintiff to enjoy his easements, considering the rights of the servient owner under Sections 22, 24, and 28 of the Indian Easements Act.
Issues: 1. Whether the plaintiff acquired the easement rights of passage and flowing water over the disputed land by prescription under Section 15 of the Indian Easements Act? 2. Whether the defendant's constructions on the disputed land obstructed the plaintiff's easements and were not protected by Section 4 (b) of the Village Abadi Act, 1948?
Ratio Decidendi: 1. The right to flow water over the disputed land was not excluded under Section 17 (c) of the Indian Easements Act as the water flowing from the plaintiff's Nabdan constituted a defined stream or channel and did not fall under the category of surface water not flowing in a stream or permanently collected in a pool or tank. 2. The right of way over the defendant's land was a discontinuous easement and could be acquired by prescription under Section 15 of the Indian Easements Act, as it is not required to be continuous. 3. The defendant's constructions on the disputed land obstructed the plaintiff's easements and were not protected by Section 4 (b) of the Village Abadi Act, 1948, which allows house-owners to make constructions for agricultural or domestic purposes, as the section does not override the provisions of the Indian Easements Act. 4. In exercising the plaintiff's easements, the rights of the servient owner should be considered, and a balance should be struck between the plaintiff's enjoyment of the easements and the defendant's rights as the owner of the land, as per Sections 22, 24, and 28 of the Indian Easements Act.
Final Decision: The High Court partly allowed the appeal, modifying the lower court's decree to direct the defendant to remove a portion of the constructions on the disputed land to create a clear passage for the plaintiff to enjoy his easements, while allowing the rest of the constructions to remain.
JUDGMENT :- This is the defendant's second appeal. Both the courts below have decreed the plaintiff's suit.
2. The brief facts are these : The plaintiff prayed for the removal of two disputed walls marked by letters AB and CD and the 'chappar' marked by letters ABCD in the sketch map given at the foot of the plaint. The house of the plaintiff is in the south of the house of the defendant and a 'gali' intervenes between these two houses. Both these houses have their main doors towards the east and they are situated in village abadi. According to the plaintiff, the disputed land ABCD was used as passage for a fairly long time. It is further alleged in the plaint that the nabdan which emanates from the northern wall of the plaintiff's house passed through the disputed land and water used to flow through the land in dispute. The plaintiff claims to have prescribed for a right of easements of passage and of flowing water through the land ABCD. The defendants are said to have raised walls AB and CD on the northern and southern end of the land in suit and are said to have placed 'chhappar' thereon and thereby caused obstruction in the plaintiff's aforesaid rights of passage and of flowing water. The defendants denied the rights claimed by the plaintiff and averred that the land in suit had been in their user and possession as sehan and belonged to them. It was further asserted that the disputed land had always remained covered by 'chappar'. The plea that the suit was hit by limitation was also raised in defence. The two courts below have accepted the plaintiff's version and have therefore, decreed the suit. It has been held by the said courts that the disputed walls AB and CD were put up shortly before the institution of the suit and so also the chappar. The said courts also held that the plaintiff had successfully proved his claim to have acquired the easementary right of passage and of flowing water over the disputed land. The defendants' ownership of the disputed land was accepted by the courts below. However, in view of the plaintiff's easementary rights of passage and of flowing water over the disputed land, it was held that the defendants were not entitled to put up the walls and the 'chappar'. Hence the suit was decreed for the removal of the disputed constructions as shown in the map (paper No. 22A-2) which was made a part of the decree.
3. The learned counsel for the appellant has raised the following contentions in support of the appeal:-
1. In the circumstances of the case, the plaintiff respondent could not acquire by prescription a right to flow water over the passage ABCD and Section 17 (c) of the Indian Easements Act stood in the way of the plaintiff-respondent.
2. The rights which have been claimed by the plaintiff could not be acquired as easementary rights by prescription because they were not apparent and continuous.
3. The plaintiff-respondent failed to prove that he acquired the easementary right of passage and the right to flow water within the requirement of law as laid down in Section 15 of the Indian Easements Act.
4. Even if the plaintiff-respondent acquired easementary rights claimed by him, in view of Section 4 (b) of the Village Abadi Act the defendant's constructions cannot be demolished.
5. Even if the plaintiff-respondent acquired the easementary rights claimed by him still it was not necessary that the entire constructions should be removed and only so much of such constructions should have been directed to be removed as were necessary to enable the plaintiff-respondent to enjoy the easementary rights claimed by him.
4. Let us examine these contentions in seriatim.
5. So far as the first contention is concerned, the learned counsel for the appellant placed reliance on the following cases :
1. Manturabai v. Ithal Chiman (AIR 1954 Nag 108).
2. Dhanna v. Makhan Das (AIR 1971 Raj 53).
6. Section 17 (c) of the Easements Act lays down as under :
"17. Easements acquired under Section 15 are said to be acquired
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
