J U D G M E N T

The plaintiff/respondent herein (For short “plaintiff”)

instituted a suit bearing No. 69/10 of 2000, before the learned Civil Judge (Junior Division) (1) Shimla, H.P. In the afore suit, he claimed the making of a decree for permanent prohibitory injunction against the instance of the defendant/petitioner herein (for short “defendant”), and, vis-à-vis, Khasra Nos. 1152/500, 1154/500, 1159/532, 533, 534, 535, 536, 539, 540, 543, 544, 545, 546, 547 and 537 kitas 14 total measuring 537.45 sq. meters for short (“the suit khasra numbers”).

2. The plaintiff’s suit became decreed by the learned trial Court. In an appeal carried thereagainst by the aggrieved defendant, before the learned first appellate Court, the latter Court made a verdict of dismissal, upon, the afore Civil Appeal No. 93-S/13 of 2004, and, obviously affirmed the judgment and decree as became accorded, vis-à-vis, the plaintiff hence by the learned trial Court, however, with a modification as becomes extracted hereinafter:-

“However, it is slightly modified, instead of granting injunction in respect to entire land of the defendant, it is hereby ordered that the defendant will not cause any obstruction to the flow of rain water arising in and falling on the plaintiff’s property, and, he would remove the obstruction caused by him at Karukans 6-6 on the

boundaries of khasra No. 540 (of defendant) and khasra Nos. 526 and 527 (of the plaintiff) situated in Mouza Phagli. The shajras Ext. PW-2/A and Ex. D-13 shall form part of the decree as already ordered by the Court below.

3. When the appeal came up for admission before this Court, it become admitted on the hereinafter extracted substantial questions of law:-

1. When the plaintiff-respondent claimed right to drain, rain and sullage water and also right of passage by prescription easement and easement of necessity, was the suit not liable to be dismissed for the reason that the pleadings of the plaintiff- respondent were self contradictory and mutually destructive?

2. Whether both the Courts below have mis- applied the provisions of Section 7 of the Easement Act when the right which was claimed by the plaintiff was to be established by proving the ingredients of Section 15 or at best Section 13 of Easement Act?

4. The suit land was acquired by the plaintiff from the previous owner one Krishna Devi through a registered deed of conveyance executed on 10.6.1982. The plaintiff averred that the plaintiff’s property is located above the defendant’s property. The plaintiff claimed decree (supra), on the ground, that owing to topographic condition, the natural rain water does not pass through defined channel rather passes through undefined channels on to the land of the defendant, hence from times immemorial. Consequently, the afore made pleadings are prima-facie in consonance with clause (i) of illustrations to Section 7 of the Indian Easements Act, (for short “the Act”) provisions whereof are extracted hereinafter:- “(i) The right of every owner of upper land that water naturally rising, 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.”

5. Moreover, it is also pleaded in the plaint, that the afore exercise of easementary right by the plaintiff, and, appertaining to the rain water arising and falling over the dominant heritage, being passable, on to the land of the defendant, is exerisable, as, an easement of necessity. Consequently, the plaintiff pleaded that the afore easementary right accrues to him both on anvil of prescription, as well, on anchor of necessity.

6. The baulking of exercise of the afore right of easement by the defendant, upon, the servient heritage owned by defendant, was prayed to be undone, through the learned trial Court making a decree for permanent prohibitory injunction against the defendant, and, vis-à-vis the suit khasra numbers.

7. The defendant filed written-statement to the plaint, and, had denied the e