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2002 DIGILAW 97 (JK)

Nagar Mal v. Dhani Ram

2002-04-09

S.K.GUPTA

body2002
1. This civil second appeal is directed against the judgment and decree dated 31-07-1996 formulated by Learned District Judge. Kathua. By the aforesaid judgment and decree the Learned District Judge set aside the judgment and decree dated 25-07-1994 passed by Munsiff, Hiranagar and dismissed the plaint of the appellant/plaintiff. Setting in facts of the case appellant / plaintiff commenced a suit for permanent injuntion in claiming to be the owner in possession of the house located in village Harsath Tehsil Hiranagar. constructed by him in the year 1959. asserted that the entire water of the plaintiffs house has been discharging upon the defendants land through points 1,2, and 5 across the western and southern side of the plaintiffs house and also the water from the roof of the plaintiffs house discharging or flowing through a spout from point 6 and also the plaintiff enjoying air and light to his house from the ventilators opening towards the land of the defendant on the western and southern side of his house described explicitly as points 7, 8. 9,10 and 11 in the sketch map prepared by the patwari right from the year 1959 continuously openly, peacefully and uninterruptedly to the knowledge of the defendant / respondent and thus perfected a right of easement by prescription. It was further submitted by the plaintiff/appellant that the defendant/respondent had started causing blockade in the flow of the water through points 1. 2. and 5 and also in the discharge of the water from the roof of the house of the plaintiff from point 6. besides, making endeavour for the closure of air and light enjoyed by the plaintiff to his house through ventilators from points 7. 8. 2. and 5 and also in the discharge of the water from the roof of the house of the plaintiff from point 6. besides, making endeavour for the closure of air and light enjoyed by the plaintiff to his house through ventilators from points 7. 8. 9, 10, and 11 with purposive intent, in order to curtail and cause obstruction to the enjoyment of the easementary rights, which occasioned a cause of action by the plaintiff/appellant against the defendant/respondent to prefer a suit for permanent injunction in restraining the defendant/respondent from causing blockade or obstruction to the discharge of the water of the house of the plaintiff through points 1, 2 and 5 by laying beds alongside across the western and southern walls of the plaintiff/ appellant towards the defendants own side growing flowers and watering the beds thereby damaging the plaintiffs house storing dumping fire wood on earth alongside the wall of the plaintiffs house making attempts to cause a closure of the ventilators kept in the southern and western wall of the house of the plaintiff at points 7 to 11 which otherwise can result in diminishing the plaintiffs right of easement to enjoy such right of light and air causing obtruction to the discharge of the water of the plaintiffs/appellants roof through spout at point no 6 delineated in the sketch map and futher refrain from doing any act or omission, which may cause damage to the house of the plaintiff and interfere in the enjoyment right of easement of the plaintiff acquired by prescription by the extent of use and enjoyment thereof during the prescriptive period. Appellant/plaintiff however introduced a plea directing the defendant/respondent to remove the obstruction and blocklade from points 1 and 2 resulting in blockade of the continuous flow of the water of the plaintiffs house upon the defendants land by amendment of the plaint subsequently. The defendant/respondent in his demurrer, however, did not dispute the ownership of the plaintiff/appellant of the house, but denied the same to have been constructed as per the sketch map. That the sketch map has not been prepared in accord with the position existing on spot. The defendant/respondent in his demurrer, however, did not dispute the ownership of the plaintiff/appellant of the house, but denied the same to have been constructed as per the sketch map. That the sketch map has not been prepared in accord with the position existing on spot. It was also denied by the defendant / respondent that the water of the plaintiffs house came on the defendents land from points 1, 2 and 5 since 1959 and therefore, appellant/plaintiff cannot be said to have acquired the right of easement by prescription in respect thereof. According to the defendant/respondent only at the time of marrige of the plaintiffs daughter about four years back the defendant permitted the flow of surplus water through points 2 and 5 on his land on being approached by the plaintiff. That the defendant allowed the plaintiff to discharge the water of his kitchen in the Court yard to flow from his land through point 2 and 5 temporarily on the assurance by the plaintiff that the same shall be closed after the marrige of his daughter and when the plaintiff started renovation of his building. The discharge of the water was however closed from point 5 by the plaintiff after six months when renovation of his house started but continued the discharge of the water from point 2 inspite of a request from the defendant. It is further submitted by the defendant that the discharge of the water from point 2 however was closed by him prior to the filling of the suit. The draining of the water from point 1 was also however, opened by one Ram Lal with the consent of the defendant on the marrige of Ram Lals brother and at the time of plaintiffs daughter about four years back, when the appellant/plaintiff also started going through defendant land in the open field to answer the call of nature. This was however closed by Ram Lal after the marrige by putting a permanent iron gate about seven months prior to the filing of the suit and thus emphatically denied the plaintiff claim of acquiring right of casement through point 1 . This was however closed by Ram Lal after the marrige by putting a permanent iron gate about seven months prior to the filing of the suit and thus emphatically denied the plaintiff claim of acquiring right of casement through point 1 . It is further submitted by the defendand/respondent that the plaintiff/appellant was allowed to discharge the water of his roof through a spot at point 6 and that also to keep the ventilators at points 7 to 11 as shown in the sketch map for light and air to his house on a promise that the plaintiff/appellant shall close the said flow of water from point 6 and the ventilators on the western and southern sides at the time of construction of the house of the defendant or when the defendant feels inconvenience. The defendant futher admitted to have slopped the flow of the water of the plaintiffs house from points 1 and 2 into his land before the filing of the suit. He has futher denied that the appellant/plaintiff has acquired any right of easement with regard to the flow of water of his house from points 1, 2. 5 and 6 and also enjoyment of light and air through ventilators from points 7 to 11 by prescription. That the fire wood has been stocked and also laid beds on his own land toward southern wall of the plaintiff s house in order to block the flow of the water from the plaintiffs house to his land and also light and air received across his land, and in refuting the claim of the plaintiff/ appellant to have acquired an easement prescriptive right in respect thereof by its exercise openly for a statutory period. Consistent with the contents and contour of the pleadings the following issues came to be framed for settlement by the trial court. (1) Whether the water has been flowing from plaintiff™s house into defendants land at points no 1, 2 and 5 shown in the map since 1959 and thus the plaintiff has acquired a right of easement in this respect? OPP (2) Whethrer the water has been flowing from the plaintiffs roof into defendants land at point no 5 shown in map since and hence the plaintiff has acquired right of easeement in this respect.? OPP (2) Whethrer the water has been flowing from the plaintiffs roof into defendants land at point no 5 shown in map since and hence the plaintiff has acquired right of easeement in this respect.? OPP (3) Whether the defendant has obstructed the flow of water at point no 1, 2 and 4 causing the damage to the house of the plaintiff also affecting the health of in mates? OPP (4) Whether the defendant is trying to lay buds along side the southern and western wall of the plaintiff™s house and thereby cause damage to the wall? OPP (5) Whether the stocking of the firewood towards the wall of the plaintiffs house causing damage to the plaintiffs wall? OPP (6) Whether the defendant is digging earth alongside and across the plaintiff™s southern and western walls and thereby causing damage to those walls? OPP (7) Relief. The trial court on consideration of the entire evidence in the case held. (1) at the time of construction of the house by plaintiff in the year 1959, the water of his house used to flow through point 1, 2 and 5 as shown in the sketch map EXP-SJ. which remained unrebuttted by the defendant: (2) that the admission of the defendant in the written statement also supported the contention of the plaintiff with regard to discharge of the water through point 6 as shown in the sketch map and thus acquired right of easement in respect thereof. (3) though there is an admission of the defendant to legally and lawfully obstructed the flow of water at point 1, 2 and 5 in his written statement, yet the plaintiff established by evidence that the defendant has obstructed the flow of water by dumping earth wooden plank against these points on account of which the water stagnated in the Court yard causing damage to the house of the plaintiff: (4) that the plaintiff also proved by sketch map , EXP-JS that the defendant by plainting trees flower beds and stocking fire wood along the southern wall causing damage to the plaintiffs house so is also admitted by the defendant in his written statement. (5) that by closing all the outlets of the water flows of the plaintiffs house the defendant has curtailed the easement rights of the plaintiff consequently the suit was decreed and the defendant was directed to remove obstructions from point 1. (5) that by closing all the outlets of the water flows of the plaintiffs house the defendant has curtailed the easement rights of the plaintiff consequently the suit was decreed and the defendant was directed to remove obstructions from point 1. 2, and 5 and also on the southern wall and refrian from digging earth across the wall of the plaintiff causing damage to his house: On appeal the learned district judge reversed the finding of the trial court in appeal and dismissed the plaintiffs suit. He however held the judgment and decree of the trial court legally erroneous in view of the plaintiffs own admission in his statement that there exists 4 ft. wide strip along the western wall of his house and in such an event, the water of his house flowing from points 1. 2 and 5 discharged upon him own land and therefore, does not confer upon him any easementary right. The plaintiff cannot have easementary right over his own-land, and therefore, no servient heritage in the present case. That the plaintiff failed to establish enjoyment of right peaceably. Uninterruptedly and openly to the knowledge of the owner to discharge the water of his house at points 1. 2. 5 and 6, and consequently, dismissed the suit. 3. The following substantial question of laws having been shown to have arisen in this civil second appeal. (1) Whether the impugned judgment has been passed by completely ignoring the evidence of the plaintiff and by completely ignoring the pleadings of the parties. (2) Whether the right of easement is in land and not against the person interested in land. (3) Whether the defendant/respondent can deny to recive the natural water flowing from the land of the plaintiff / appellant which is situated at higher level than the land of the defendant and whether the nature itself has contituted servitude on the inferior tenement of the defendant. (4) Whether on the face of admission made by the defendant that he has made the obtruction at points no 1,2 and 5 in September or October 1987 the finding of the appellate court that the obstruction has not been made within 2 years of the filling of the suit is legal and correct. (5) Whether the impugned judgment and decree has been passed in violation of the provision of section 1, 7 and 15 of the Easements Act ,1977. (5) Whether the impugned judgment and decree has been passed in violation of the provision of section 1, 7 and 15 of the Easements Act ,1977. Upon considering question no 1 alongwith question No 4 and 5 conjointly and after going through the pleadings of the parties and appreciating the evidence on record analytically, it became clearly manifest that the plaintiff has admitted in his statement that the flowing of the water from point 1, in fact, relates to the discharge of flowing of water of the house of his brother, Ram Lal. The plaintiff/appellant has been declared and held to be owner of 4 ft . wide strip also along the western wall of his house in a suit which also assumed finality. In order to prove acquisition of right of easement on property, it should have been enjoyed continuously uninterruptedly and peaceully for a period of more than 20 years upon the scrvicnt heritage to the knowledge of the servienl owner without any obstruction. 5. It would be useful to look at the definition of easement defined under section 4 of the Easement Act. " (4) Easement defined an easement is a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent something being done in or upon or in respect of certain other land not his own. Dominant and servient heritages and owners: The land for the beneficial enjoyment of which the right exist is called the dominant heritage, and the owner or occupier thereof the dominant owner: the land on which the liability is imposed is called the servient heritage and the owner or occupier thereof the servant owner". 6. It is clear from the definition that one of the essential characteristic of even easement is that there are two distinct tenements the dominant to which the right belongs and the servient upon which the obligation is imposed and the dominant and the servicnt owners being; different persons. "The words not his own", in this section are highly significant. It is imperative that the owners of the servient tenement and dominant heritage must be different. "The words not his own", in this section are highly significant. It is imperative that the owners of the servient tenement and dominant heritage must be different. A person cannot acquire an easementary right over his own land because all acts done by him over his own land are acts done in exercise of his rights as owner of the land and the prime requisite of animus for acquisition is thereby absent. The right of casement becomes extinguished the moment the ownership of the two tenement is vested in the one and the same person. Co-existence of an easement alongwith the ownership of the land its self not allowed under the law. 7. Full Bench of the Bombay High Court in Raychand Vanmalidas versus Maneklal Mansukhbhai AIR, 1946, Bombay 266. had the occasion to consider the question of acquisition of an easement by a person claiming ownership and observed as under: "To prove that the right was exercised as an easement it is necessary to establish that it was exerised on some body elses properly and not as an incident of his own ownership of that property. For that purpose his consciousness, that he was exercising that rights on the property treating it as somebody elses property, is a necessary ingredient in poof of the establishment of that right as an easement. If a person has actually claimed ownership of the servient tenement in a previous litigation within the statutory period of twenty years, it may be regarded as an important piece of evidence to show that he did not exercise that right as an easement. 8. Plaintiff/appellant in his evidence has stated unambiguously that the land on which he is discharging the water of his house belived tube his own land. This land is 4 ft. wide strip of land adjoining the western wall of the house of the plaintiff. It. therefore, makes it abundantly clear that flowing of the water from the house of theplaintiffat this 4 ft. wide strip of land was not in exercise of plaintiffs right to easement, but on his own land. As regards the flow of water at point I as shown in the sketch map. EXP-JS. it is from the house of Ram Lal brother of the plaintiff. In such circumstances, the plaintiff cannot claim any right of easement regarding discharge of water from point I on the land of the defendant/respondent. As regards the flow of water at point I as shown in the sketch map. EXP-JS. it is from the house of Ram Lal brother of the plaintiff. In such circumstances, the plaintiff cannot claim any right of easement regarding discharge of water from point I on the land of the defendant/respondent. It was Ram Lal to whom the cause of action, if any, accrued and not the plaintiff/appellant, Nagarmal. It is also borne out from the plaintiffs evidence that the water of his house flows from points 1 and 2 described in the sketch map. The discharge of the water evidently is on 4 ft wide strip along side the western wall of the house of the plaintiff. The discharge of the water, therefore, upon his land in this manner, does not vest any easementary right on the plaintiff. It is also elicited in the plaintiffs evidence that the flow of water from point 1 and 2 has been closed by the defendant/respondent on account of which the damage is being caused to his house resulting in water logging in the court-yard. The plaintiff.therefore, has not succeeded in proving that he had been enjoying the right of discharge of water of his house from points 1. 2 and 5 for over a period of 20 years upon the land of the defendant /respondent continuously, peaceably and without any obstruction and know to the defendant/respondent, owner of the servient heritage. The plaintiff is also admitted to have recited in the plaint that he has left 4 ft. wide strip of land along side the western wall of his house as shown in the sketch map and the water of his house flows through the said 4 ft. wide strip which, is owned by him . 9. Regarding the flowing of the water of his kitchen from point 5, it is in the statement of plaintiff he had renovated his kitchen in a year before the recording of his statement and consequently flowing of water of the kitchen from point 5 stood stopped.. Where a person abstains (sic) voluntary easementary right enjoyed by him earlier, that amount to loss of such right. 10. Acquiring of easement by prescription needs a proof of its enjoyment independently of his owner or the occupy concerned. The right must have been enjoyed peaceably, openly as a right of easement. Where a person abstains (sic) voluntary easementary right enjoyed by him earlier, that amount to loss of such right. 10. Acquiring of easement by prescription needs a proof of its enjoyment independently of his owner or the occupy concerned. The right must have been enjoyed peaceably, openly as a right of easement. But where plaintiff has established no use of the right as an easement, but on the contary with the permission for its user as stated by the defendant unmistakably in his evidence easement by prescription in that event was not proved. It is also in the plaintiffs statement that the fulsh latrine was constructed about 7/8 years prior to the filing of the suit, with the western wall of his house and discharged its water from point 2. If that be so. how the plaintiff can assert to have acquired casementary right by prescription when it is necessary for the dominant owner to prove that it was in peaceful, open and hostile user for a period of 20 years lasting within two years of the suit. 11. Mr. Rahgu Mehta learned counsel appearing for the appellant vehemently urged that in view of the clear admission made by the defendant to have caused an obstruction of the flow of the water at points 1. 2. and 5 the finding of the appellate court that the obstruction has not been made within two years of the commencement of the suit, is clearly erroneous. It is profitable to point out that the stand taken by the defendant in his statement, pleadings and evidence that he had permited the plaintiff to discharge the water of his house from points 1, 2 and 5 over four years ago at the time of the marrige of the plaintiff daughter on the latters request this consent was given by the defendant on the assurance of the plaintiff that the plaintiff, at the time of renovation of his house, will stop the (low of water, which in fact, he did at point 5, but continued to discharge the water from point 2, it was in that event that the defendant caused obstruction to the flow of water from point 2 prior to the institution of the suit. It is further elicited from the evidence of the defendant that the flow of water from point 1 was opened by Ram Lal, brother of the plaintiff and not by the plaintiff at the time of the marriage of Ram Lals brother Ram Lal, however, had put up permanent iron gate and closed the passage. Mr L.K.Sharma learned counsel appearing for the respondent also submitted that where the user, plaintiff, having failed to establish the flowing of the water of his house through points 1, 2 and 5 in exercise of his right of easement openly and uninterruptedly for a prescriptive period, but on the contary had sought the defendants permission for its user the easement by prescription is not proved. There is in my view, a sufficient weight and legal force in the submission of the respondent being supported by evidenbnce on record. The district judge, in my view was right in coming to the conclusion in view of the aforesaid facts and circumstnces of the case, that no easementary right is acquired either by prescription or by grant or by any other means by the plaintiff/appellant. 12. Now coming to question no 2, it may be pointed out that easement is acquired in the land and not against one or more of the person interested in the land under section 15 the right acquired by prescruption is absoluted, it is not possible to hold that such a right exists only against the occupier and not against the owner. The right which is absolute is a right in the land itself and an absolute right against all person connected with the land wether as owner or as occupier. This is not a substantial question of law. 13. As regards question no 3 this plea is neither recited in the pleadings nor gatherable from the evidence on record nor taken before the trial court and also the first appellate court in such event, no new plea can be raised for the first time in the civil second appeal. This question therefore, cannot be decided. In fact question nos 1 and 3 in my view would not by any stretch of imagination, be question of law muchless the substantial questions of law. This question therefore, cannot be decided. In fact question nos 1 and 3 in my view would not by any stretch of imagination, be question of law muchless the substantial questions of law. These are the questions of facts which have been considered and decided by the trial court on merits after analytically evaluation of the primary and perceptive evidence deposed to by the parties and witnesses examined at the trial and testimony boost thus provided other way. 14. There is not a whisper in the statement of plaintiff cither with regard to the discharge of rainwater of his house from point to the land of the defendant or enjoying light and air from points 7 to 11 during a prescriptive period. In such circumstances it cannot be said that the plaintiff has acquired any right of easement in respect of this plea. The plaintiff has only indicated in his statement with regard to the flow of the water of his house from points 1 and 2 and the closure of the same has caused damage to the house of the plaintiff The plea of the plaintiff with regard to discharge of water from point is and enjoyment of easement of light and air through points 7 to 11 remained unproved having not matured into prescriptive right. 15. The true legal position that would govern acquisition of prescriptive right under Easements act is that, easement rights are suspended when there is a merger of the servient and dominant tenements of right in the same individual and results in unity of possession. Where continuity of the enjoyment broken in whatever manner, a fresh period of 20 years is necessary to acquire an casement. The finding the first appellate court to the effect that the plaintiff/appellant has failed to establish easement by prescription on a proper appreciation of evidence could not be disturbed in the second appeal. For the aforesaid reasons 1 do not find any merit in this appeal, which is accordingly dismissed with no order as to costs.