Before the right to the use of water can be the subject of an easement by prescription or grant, it must be water flowing through a defined permanent channel. The essential features from which a grant or arrangement whereby the right claimed may be presumed to rest in some legal origin are that there should be a permanent channel, artificial or otherwise, or indeed a defined channel of any sort conducting the over flow of water and that the over flow should be controlled or directed in any particular course.
Patna High Court
Anu Sundar And Ors. vs Shiva Narain Jaiswal on 30 October, 1987
Equivalent citations: AIR 1988 Pat 216
Bench: L Shahdeo
JUDGMENT1. This appeal is directed against the judgment dated 17th July, 1978 passed in Title Suit No. 172 of 1972 by the Second Addl. Subordinate Judge, Ranchi dismissing the suit of the plaintiffs-appellants on contest with costs.
2. The plaintiffs had filed the suit for declaration that they had a right to drain out the surplus rain water and sewage water of their house situated on plot No. 1614 through M. S. Plot No. 1630 belonging to the defendant-respondent. A prayer was also made for permanent injunction restraining the defendant from obstructing the flow of water through plot No. 1630. In addition to that, an estimated claim of Rs. 10,000/- was also made by way of damage caused by the obstruction made by the defendant-respondent. It was claimed that by obstructing in the flow of rain water and sewage water, the water became stagnant on plot No. 1614 as a result of which the land of plot No. 1614 became muddle and the crops thereon were washed away. The further case of the plaintiffs was that they had constructed a pucca house in place of kacha house on municipal plot No. 1615 and began to live in it. Later on as a result of partition among the family members, the plaintiffs got half portion of that plot and the residential house on the southern side and half portion of M.S. plot No. 1614 fell to the share of the plaintiffs and the plaintiffs were in exclusive possession of the same. It was further claimed that the level of plot No. 1614 which belonged to theplaintiffs was at a higher level in comparison with the land adjacent to it being M.S. plot No. 1630 belonging to the defendant-respondent and because of this natural situation of the land, the natural flow of the surplus rain water of plot No. 1614 was in a natural course towards the land of the defendant in M.S. plot No. 1630 and from there the water used to go in the municipal drain near the culvert and used to pass through it. This right of draining off the rain water and sewage water was being exercised by the plaintiffs and their ancestors as a right of easement since times immemorial i.e. more than hundred years.
This natural flow of the rain water was as a consequence of the higher level of the land of the plaintiffs which used to pass on to plot No. 1630 and then to the municipal drain and in this way the flow of water was continuing for over hundred years and the plaintiffs, in this way, had acquired a natural right to drain off surplus rain water and sewage water of their land to municipal plot No. 1630 and from there to municipal drain on Hazaribagh road. As such, the plaintiffs had acquired a right to drain out surplus water and to discharge sewage water by way of prescription.
3. It was further claimed by the plaintiffs that the defendant, in the year, 1972, started filling up the land of plot No. 1630 with rubbish as a result of which the rain water and sewage water became stagnant on plot No. 1614 and stopped its natural flow from plot No. 1614 to plot No. 1630. Consequently, when rain water and sewage water began to enter into the house of the plaintiffs because of the obstruction made by the defendant-respondent, the plaintiffs had to file the suit seeking the reliefs indicated above.
4. The defendant-respondent contested the suit by filing written statement alleging, inter alia, in general terms that the suit was barred by law of limitation, adverse possession and was not maintainable in the present form. It was admitted that plot No. 1614 belongs to the plaintiffs but it was denied that plot No. 1614 is at the higher level than that of plot No. 1630. It was claimed that both the plots are in the same level. It was further claimed that there are two drains; one running from west to east and the other from east to west. The water from the two drains after meeting at a point flows through a drain running from north to south. In fact, part of defendant's land being M.S. plot No. 1630 adjoining to plaintiffs' land being M.S. plot No. 1614 was left by the defendant for drainage of the rain water and sewage water in the municipal drain on the Hazaribagh road on the southern extremity of the two plots. It was claimed that in order to protect his property the defendant had constructed boundary wall in the year, 1959 leaving the western portion on which the drain is situated and since then no water flows into the defendant's land which is enclosed by boundary.
5. It was further claimed by the defendant in his written statement that only recently the plaintiffs, with ulterior motive, had filled up the southern part of the drain with rubbish blocking the flow of water through northern part of the drain. It was said that the plaintiffs had also demolished a portion of the defendant's compound wall adjoining the drain and left out water into the defendant's plot on the east as a result of which dispute arose between the parties resulting into a proceeding under Section 147, Cr.P.C. The said proceeding was dropped. It was claimed that the plaintiffs had no right to drain out surplus rain water from the defendant's plot No. 1630 which was never available to the plaintiffs or their predecessors nor the plaintiffs had acquired any right of easement or any right by way of prescription to drain out either the rain water or the sewage water. It was further claimed that the water never entered into the plaintiffs' land nor any damage to the crop was done. In substance, the respondent (defendant) has denied the existence of any right of easement or any right by way of prescription.
6. On the pleadings of the parties, the trial court framed eight issues. A pleader commissioner was also appointed who visited the spot. Eight witnesses including the pleader Commissioner were examined on behalf of the plaintiffs. The defendant examined seven witnesses.
7. The trial Court, on consideration of the evidence, documents, facts and circumstances of the case, held that the plaintiffs had failed to prove acquisition of right by way of easement or by way of prescription. It was further held that the plaintiff had failed to prove the claim of damages because of its vagueness and not being specific. The trial court held that the details of the damage suffered was neither given in the plaint nor in evidence. On these findings, the trial court dismissed the suit of the plaintiffs as indicated above.
8. Feeling aggrieved by the aforesaid decision of the trial court, the plaintiffs-appellants have preferred this appeal before this court.
9. Mr. N. K. Prasad, learned counsel appearing on behalf of the appellants has submitted that the whole claim of the plaintiffs is based on two fold points. He has firstly claimed that the plaintiffs have acquired natural right to flow rain water in view of the admitted position that plot No. 1614 belonging to the plaintiffs is at a higher level than that of the defendant. His second contention is that the plaintiffs have also acquired right of user because they are exercising that right uninterruptedly as a right of easement for more than twenty years and, as such they have acquired a definite and indefeasible right to discharge their sewage water and to flow the natural rain water in the natural course.
10. Mr. B. K. Dcy. learned counsel appearing on behalf of the defendant-respondent, submitted that this case has to be decided on the pleadings of the parties. The claim of natural flow of water is too vague in the plaint and the plaintiffs have failed to point out as to which portion of the land, they have acquired by partition between the co-sharers and even if the plaintiffs have a right, they cannot exercise that right detrimental to the interest of a dominant sovereign. It was further submitted that there is no evidence to prove that the plaintiffs have acquired either the right of easement or the right by prescription by uninterrupted use for more than twenty years. It was further submitted that the first obstruction in the exercise of the so called right of easement or the right which they claim to have acquired by way of prescription was made in the year, 1961 resulting in a proceeding under Section 147, Cr.P.C. and the suit having not been filed within two years of such obstruction is barred under Section 25(2) of the Limitation Act.
11. It was next contended that apart from the aforesaid principles of law, the defendant-respondent has made provision for flow of the water by constructing drain adjacent to his pucca wall on his own land and, therefore when provision has been made for flow of the natural water or the sewage water, question of any obstruction does not arise and the defendant is also entitled to use his land because ownership is vested with him; of course, making some provision for flow of the rain water because of natural slope of the land.
12. On a bare reading of the pleadings of the parties I am unable to find out any specified course of flow of the rain water or sewage water. No definite course of channel has been indicated in the plaint through which the natural water or the sewage water used to be discharged through the land of the defendant on plot No. 1630. It is the admitted position and also conceded by Mr. N. K. Prasad, learned counsel for the appellants that the plaintiffs cannot be allowed to flow rain water or sewage water through the entire portion of the defendant's land being M. S. Plot No. 1630. The natural flow of the rain water from time immemorial must take a defined course as a result of which some sort of permanent nature of channel must have been carved out or made in the defendant's land which have not been shown through the map in the plaint. It has not been shown as to what was the defined flow of the natural rain water or for the discharge of the sewage water which was obstructed to and, if obstructed in what manner. Therefore, even accepting the allegations made in the plaint, I find it difficult to pass a decree and if at all what sort of decree can be passed indicating what was the defined course of flow of rain water and what was the obstruction and at what place and which obstruction has to be removed or for what obstruction the defendant can be injuncted for the natural flow of the rain water and for the discharge of the sewage water in the old manner. All these details are completely lacking either in the plaint or in evidence. Therefore, on the case made out and the nature of the evidence adduced, no decree can be passed.
13. In this context a ruling reported in AIR 1923 Pat 65, Mt. Sarban v. Phudo Sahu is relevant wherein it was held that :
"Before the right to the use of water can be the subject of an easement by prescription or grant, it must be water flowing through a defined permanent channel. The essential features from which a grant or arrangement whereby the right claimed may be presumed to rest in some legal origin are that there should be a permanent channel, artificial or otherwise, or indeed a defined channel of any sort conducting the over flow of water and that the over flow should be controlled or directed in any particular course."
The aforesaid observations support my above views.
14. Out of the eight witnesses examined on behalf of the plaintiffs, five namely 1 to 5 have deposed that the plaintiffs' land had higher level than that of the defendant's land and water flows from M. S. plot No. 1614 to the defendant's land M. S. plot No. 1630. P.W. 6 is the pleader commissioner and P.W.7 is the plaintiff himself. P.W. 8 is a young man who has said that flowing of water is coming since the year, 1961. Among them, no doubt, the plaintiff has supported his case but the important evidence is of the pleader commissioner who is P.W. 6. His report is Exts. 3 and 3/A. The map is Ext.3/B. Exts. 1 to 1/C are the photographs of the disputed lands. Exts. 2 to 2/C are the photographs of the spot.
15. P. W. 7 who is the plaintiff himself has admitted that he got half portion of plot No. 1614 and the other half went to his co-sharers. He also admitted that plot No. 1614 i.e. his land is at a higher level. It, therefore, appears that the plaintiff has not specified clearly in the map as to which portion he got the plot in question i.e. plot No. 1614 and how the right of other co-sharers has been affected or not affected. So this sort of evidence leaves vagueness to prove the potion of the land which he had actually acquired after partition. He has stated that the water from plot No. 1614 goes to plot No. 1630 but again, as I have earlier pointed out, he has not shown any defined course of flow of the water as existing since more than 100 years. He admitted that in front of his house there is a municipal drain on the Ha/aribagh road and his house is about 15 to 20 steps from that road. He admitted in para. 6 of his cross-examination that he had filed a case in the year, 1873 under Section 147, Cr.P.C. against the defendant. He has further admitted that the villagers had broken the wall constructed by the defendant in his land on plot No. 1630.
16. P.Ws. 1 and 2 have admitted the existence of the drain through which water from plot No. 1614 goes to that drain. P.W. 2, in the cross-examination has admitted the existence of the drain. P.W. 3 has also admitted that there is a drain running on the west of the land and the water flows through that culvert on the south. P.W. 4 has also given the similar evidence. He has also not indicated any specified course of flow of water. He has stated in para. 36 of his cross-examination that Shiv Narain Babu, the defendant has encroached his land through a wall and has left a portion of his own land for flow of the rain water. Therefore, P.W. 4 has admitted that the defendant has left a portion of his own land for flow of the water. It is not a case that there is complete blockade of the flow of the rain water.
17. The evidence of the P.Ws. shows that the defendant has behaved like a good citizen and some provision has also been made by him leaving a portion of his own land for the flow of the rain water and also for the discharge of sewage water. In this circumstance, it cannot be said that the plaintiffs are entitled to flow water in such a manner so that the defendant cannot use his own land as he likes making provision for the flow of the natural water and the sewage water. In view of this admission no case of any obstruction as claimed by the plaintiffs with regard to the flow of the rain water or for the discharge of the sewage water is made out and, as such, the plaintiffs were not entitled to get any relief.
18. P.W. 6 is the pleader commissioner. He had inspected the spot. He has submitted his report along with map which are Exts. 3/A, 3/B and 3/C. Ext,3/B shows that the water from plot No. 1614 goes to north and, thereafter, it comes at a point 'D' and takes a defined course and flows in between the points 'A' and 'B' and then merges in the culvert on the Hazaribagh road and flows out. The red portion in the map of the pleader commissioner, Ext. 3/B, shows that that portion was left for flow of the rain water by the defendant which constitutes a portion of plot No. 1630. This state of affairs was, of course, found when the pleader commissioner visited the spot during the pendency of the suit. His report, Ext. 3 is also to the same extent. Ext. 3 is dated 16-9-74 and Ext. 3/B is dated 10-2-76. In his report, Ext. 3/C he was given certain point for enquiry and he answered the point. With respect to point No. (a) he has stated that water flows from east to west and also from north to south which he has shown in his map, the present site from which the water is flowing. This portion has been marked in green colour. In respect of point No. (b) he has stated that southern extremity of the drain is in red colour as a part of plot No. 1630 and the southern extremity of the drain shown in red colour west of the sketch map has been filled up with mud and there is no existence of any wall at the point marked 'x', in his map, Ext. 3/B. So the pleader commissioner's report also shows the present flow of the water and it does not show that it has been completely stopped, even it has taken somewhat a different course to flow. In substance, there is no absolute obstruction of the flow of either of the rain water or the sewage water. Therefore, on their own evidence discussed above, it does not make out any case of complete stoppage or blockade of the flow of either of the rain water or sewage water, rather, it goes to show that some arrangement has been made for flow of both kind of waters from the land of the plaintiffs through the land of the defendant i.e. through a portion of plot No. 1630.
19. Under such circumstances, the plaintiffs cannot complain of complete stoppage of the flow of either of the rain water or of the sewage water. It may again be emphasised that the servient tenant cannot be deprived of the right of enjoyment of his property as owner in such a manner as to confirm absolute benefit to the dominant tenement or in such a manner making the flow of the ram water or sewage water" over the entire portion of the land of the servient tenement. In this view of the matter also the suit was rightly dismissed.
20. The last lap of the argument is on the point of limitation. It is the admitted position in this case that the first obstruction had taken place, as I have indicated above which has been admitted by the plaintiff himself, in the year, 1963. The plaintiffs admitted that the said obstruction in the year, 1973 resulted into a proceeding under Section 147, Cr.P.C. vide depositions, Exts. A and A/1 in M. Case No. 356/61. Ext.B is the certified copy of the khasra of ward No. 7 and Ext. C is the map. In these depositions both the witnesses have admitted that obstruction had taken place in the year. 1961 resulting into a proceeding under Section 147, Cr.P.C. It is also admitted position that the suit was filed on 6-10-72. Section 25 of the Limitation Act is pari materia of Section 16 of the Easements Act with certain variation. We are merely concerned with the Limitation Act as it is the admitted position, according to both the counsel, that the Indian Easements Act is not applicable to the State of Bihar but only the principles are applicable.
21. Section 25(2) of the Limitation Act says that each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. The argument of Mr. N. K. Prasad is that since by immemorial use for more than twenty years, the plaintiffs have acquired indefeasible right to a property, they can file a suit within a period of 12 years which is refuted and hotly contested by the learned counsel for the respondent relying upon the rulings according to which when obstruction has been raised or created in the use of the right of easement of the flow of water, then the plaintiffs are required to file the suit within two years from the date of that obstruction or discontinuance otherwise the suit shall be deemed to be barred by law of limitation under the provisions of Section 25(2) of the Limitation Act. It is the admittedposition in this case that the first obstruction or discontinuance of that right of easement had taken place, according to the deposition, Ext.A and A/1 and admitted by the plaintiffs, in the year, 1961 and the suit was not filed within two years from the date of that obstruction or cessation of the right of easement claimed by the plaintiffs and, as such, it is barred by law of limitation.
22. Some help was also sought to be taken under the provisions of Section 47 of the Indian Easements Act with an argument that a continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years and such period shall be reckoned in the case of continuous easement from the day on which its enjoyment was obstructed by the servient owner or rendered impossible by the dominant owner and in the case of a discontinuous easement from the day on which it was last enjoyed by any person as dominant owner.
23. A plain reading of Section 25 of the Limitation Act shows that the suit ought to be filed within two years next from the date of the obstruction or discontinuance of that right which is claimed as an easementary right and the suit having not been filed within that period prescribed by Clause (2) of Section 25 of the Limitation Act, it stands defeated and the suit must be held to be barred by law of limitation as laid down in Section 25(2) of the Limitation Act.
24. On the above point, to strengthen and fortify my conclusion, some rulings relied on by the learned counsel for the respondent are relevant to be taken note of and they are complete answer to the arguments of Mr. Prasad. In the case of Dwarka Prasad v. Patna City Municipality, AIR 1938Pat423, it was held that though an obstruction which is not submitted to or acquiesced in for one year is not an interruption within the meaning of the section, the easement becomes 'absolute' and 'indefeasible', on enjoyment for 20 years ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Admittedly, in this case the first contest arose in the year, 1961 with respect to the same right of easement.
25. This proposition is further supported by a ruling reported in AIR 1970 All 404 wherein it was held in para. 4 given below and it is also the complete answer to the argument raised on behalf of the plaintiffs :
"In view of the wording of this section, it cannot be said that enjoyment of an easement for any period of 20 consecutive years will create an absolute right the only period of 20 years' enjoyment that will do so is a period ending within two years next before the institution of the suit in which the claim to the easement is contested."
It is further clarified in the said paragraph that :
"It has been authoritatively held that a title to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz. 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question the enjoyment relied on must be an enjoyment for 20 years up to within 2 years of the institution of the suit."
26. Similar view was expressed in an another ruling reported in AIR 1947 All 374, Mt. Chandra Devi v. Mt. Kirpa, wherein in para. 6 it was held :
"Even though the plaintiff or his predecessor might have been flowing the water of the roof through the abchak land for a period of twenty years or even more. nevertheless if they ceased to exercise that right within two years next before the institution of the suit wherein the claim to which such period relates is contested, that right fails."
It was further held in the same paragraph :
"The stand upon Section 47, Easements Act and that the right could be lost if it had not been enjoyed for an unbroken period of twenty years, and as the period in this case is only seven years, there can be no extinction of the right."
Therefore, the conclusion arrived at is supported by the aforesaid rulings and in this view of the matter the suit is held to be barred by law of limitation and not maintainable.
27. Now coming to the question of damage. it appears that it is too vague and uncertain. It has not been obtained from any witness as to what was the yield or produce of that land. It has also not been obtained from any of the witnesses as to what was the type of the crop and what was the market price of the produce during the relevant period The plaintiffs have not put in any criteria on the basis of which they have estimated their loss at Rs. 10,000/-. It has also not been clarified either in the evidence or in the plaint as to on which portion of the land the water became stagnant and whether that portion actually belongs to the plaintiffs or their co-sharers. In this background it must be said that the claim of compensation is too vague, uncertain and indefinite and the lower court has rightly disallowed it.
28. In the result, I find no merit in this appeal which is dismissed accordingly. The judgment and decree passed by the trial court are hereby confirmed. In the facts and circumstances of this case, the parties will bear their own costs.
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