( 1 ) IN pursuance of my order in Miscellaneous Civil Case No. 410 of 1971, Shri jakatdar, learned counsel for the appellant and Shri R. K. Verma, learned counsel for the respondents, were heard again.

( 2 ) THIS second appeal arises from a suit for a permanent injunction to restrain the defendant from raising a wall on his own land and for its demolition in case the defendant erects a wall. The basis of the suit was that the plaintiff had acquired easement of eavesdropping from his house for the statutory period. The defendant resisted the suit. The trial Court found that the plaintiff had acquired a right of easement and passed a decree in favour of the plaintiff restraining the defendant from making any construction in any way so as "to affect the flow of the rain water from the plaintiff's house towards his land in suit". The rest of the plaintiff's claim was dismissed.

( 3 ) THE plaintiff appealed. The learned Judge of the first appellate Court modified the decree of the trial Court and held that since the plaintiff had a right of easement, the defendant could not make any construction on the land on which the water drops from the plaintiff's eaves. In the result, he ordered a mandatory injunction for demolition of the wall constructed by the defendant "so that the land in suit should remain an open piece of land as before". He directed the defendant to demolish the wall within two months from the date of the judgment; otherwise, it would be demolished through the process of the Court at the cost of the defendant.

( 4 ) THE defendant has preferred this second appeal from the decree of the first appellate Court. He did not prefer any appeal from the decree of the trial Court which means that he was satisfied with the decree which was passed by the trial court.

( 5 ) IN my opinion, the law on the point is clearly this. The servient owner is free to use the servient tenement in any way he chooses, subject to the only limitation that the use of the servient tenement is restricted by the existence of easement. In other words, the use of the servient tenement is restricted only to the extent which is necessary for the protection and enjoyment of such easement, but no further. The dominant owner has no right to restrict the use of the scrvient tenement except to the extent that his right of easement is protected. Therefore, merely because there is a right of easement to discharge water on the servient tenement, the servient owner is not disentitled to build on the servient tenement, provided that he makes necessary arrangement for receiving such water and discharging It on his own land. This view was also taken in Bala v. Maharu, (1896)ILR 20 Bom 788, where an almost identical question arose.

( 6 ) THIS law Is embodied in Section 27 of the Easements Act, the relevant part of which reads as follows:-" the servient owner. . . . . . . . . is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement, but he must not do any act tending to restrict the easement or to render its exercise less convenient. " applying that section to the present case, it must be said that the defendant bas a right to use the servient heritage in any way he chooses but the use must be consistent with the enjoyment of the plaintiff's easement of eavesdropping. And, the defendant must not do any act which would restrict the said easement or which would render its exercise less convenient. ( 7 ) THE defendant, in the witness-box, clearly stated that he would make necessary arrangement for the discharge of the water from the plaintiff's eaves. He said that he would receive the water and discharge It on the road towards the east, and on the west in his own courtyard, and that this he would do In such a manner that the flow of water would not be obstructed, nor would there be any damage or dampness caused to the plaintiffs house.

( 8 ) THE trial Court was, therefore, right in pas