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2004 DIGILAW 546 (ALL)

VIPIN KRISHNA GARG v. SHYAM LAL GARG

2004-03-12

TARUN AGARWALA

body2004
TARUN AGARWALA, J. ( 1 ) THE plaintiff filed a suit for a permanent injunction restraining the defendant from placing any obstruction in the right of passage on the land in dispute and to remove the obstruction on the disputed rasta. The plaintiff alleged that he had been using the said passage continuously for the last 30 years and that the rainwater was also flowing from the disputed piece of land for the last 30 years and that he had been allowed ingress and egress on the land in question for the last 50 years. The plaintiff alleged that in the last week of december 1970, the defendant placed obstructions on the land in question as a result of which his right of passage to his shop was blocked. The flow of rainwater from his shop was also obstructed. The plaintiff requested the defendant to remove the obstructions. Since the defendant failed to remove the obstruction, the plaintiff filed a suit for a permanent injunction. The defendant in his written statement contended that the plaintiff had no right or flow of the water on the land in question nor had any right to use the land as a passage. The defendant had full right to place the obstructions on the land in question. ( 2 ) BEFORE the trial court, it has come in the evidence that the plaintiff had been using the land as a passage continuously for a period of 30 years and that the rainwater from his shop also flowed from the passage in question on account of the natural slope of the land. It has also come in the evidence that the defendant had only purchased the land in july 1970 and within six months, thereafter, had placed the obstructions. ( 3 ) THE trial court after framing the issues decreed the suit and held that the plaintiff had acquired a right of easement by prescription for the flow of the rainwater from his shop and also acquired a right of passage over the land in question. The trial court further directed the defendant to remove the obstructions on the disputed rasta. Aggrieved by the decision of the trial court, the defendant filed an appeal, which was also rejected by the appellate court. Consequently the defendant-appellant has now preferred the second appeal. The trial court further directed the defendant to remove the obstructions on the disputed rasta. Aggrieved by the decision of the trial court, the defendant filed an appeal, which was also rejected by the appellate court. Consequently the defendant-appellant has now preferred the second appeal. ( 4 ) I have heard sri b. D. Mandhyan, the learned counsel for the defendant-appellant and sri pankaj agarwal, holding the brief of sri v. K. Gupta, the learned counsel for the plaintiff-opposite party. ( 5 ) SRI b. D. Mandhyan, the learned counsel for the appellant contended that the plaintiff in his plaint had only pleaded that he had acquired a right by customary easement, whereas the trial court decreed the suit as easementary right by prescription. Customary rights and prescriptive rights are two different kinds of easementary rights and a plea of a custody right cannot be allowed to succeed on the basis of a prescriptive right. The learned counsel for the appellant further submitted that the suit can only be decreed on the basis of pleadings made in the plaint. In the present case, the plaintiff had pleaded a case of customary right and not easementary right by prescription and therefore the trial court as well as appellate court committed an error in decreeing the suit on the basis of prescriptive right. In support of his submissions, sri b. D. Mandhyan, the learned counsel for the appellant has relied upon a decision reported in air 1972 pat 479 , mahadeo "gir v. Smt. Lalita devi in which it was held that a plea of customary right cannot be allowed to be succeeded on the basis of a prescriptive right. The learned counsel for the appellant has further relied upon air 1993 kerala 91, in which it has been held that the pleading should be specific and precise in a case where the plaint is based, on easementary right. The learned counsel for the appellant has further relied upon air 1993 kerala 91, in which it has been held that the pleading should be specific and precise in a case where the plaint is based, on easementary right. The learned counsel for the appellant further submitted that the plaintiff could not be given a right of easement to flow dirty water on the land in question inasmuch as it creates a nuisance and in support of this submission, has relied upon a decision of this court in 1982 all cj 465 : ( air 1983 all 223 ), prabhu narain singh v. Ram niranjan, in which it has been held that the right to discharge dirty water from the drain of ones house to another sahan or house is not an easementary right as contemplated under the indian easements act, 1882. ( 6 ) ON the other hand, the learned counsel for the plaintiff opposite party has invited my attention to paragraph nos. 5, 6 and 7 of the plaint, in which, the plaintiff had categorically asserted that the land in question was being used as a passage for over 50 years and that the plaintiff had been using the land as a passage continuously for the last 30 years. The plaintiff had further submitted that the rainwater from his shop was flowing from north to south on account of the natural slope on the land in question for the last 30 years and that he had acquired an easementary right on the said passage. In paragraph no. 7 of the plaint, it has, however, been stated that the plaintiff on account of the aforesaid facts had acquired a customary right of easement. The learned counsel for the plaintiff submitted that the use of the word "customary right" has been loosely stated in paragraph 7 of the plaint, whereas the plaintiff had actually acquired easementary right by prescription. The learned counsel for the appellant further invited my attention to the issue no. 1 framed by the trial court, which is quoted hereunder : ( 7 ) THE learned counsel for the plaintiff submitted that this issue was basically framed under order 14, rule 1 cpc on the basis of clear and specific pleadings made by the plaintiff in his plaint and that no objection whatsoever was raised by the defendant with regard to the framing of the aforesaid issue. Not only this, the parties had led evidence on this issue, and thereafter the trial court had given a clear finding that the plaintiff had acquired an easementary right of prescription for flow of rainwater and for the passage on the land in question. ( 8 ) THE contention of the learned counsel for the appellant is not acceptable to the court and is devoid of any merit. The contention of the appellant that the plaintiff had only pleaded the customary right of easement and that he had not pleaded easementary right by prescription is wholly erroneous. ( 9 ) FOR facility, sections 15 and 18 of the indian easements act are quoted hereunder :sec. 18. Customary easements. An. Easement may be acquired in virtue of a local custom. Such easements are called customary easements. " ( 10 ) FROM a perusal of paragraph nos. 5, 6 and 7 of the plaint, it is clear that a specific plea of easementary right by prescription was taken by the plaintiff. On the basis of specific pleading made by the plaintiff, issue no. 1 was framed. Not only this, the defendant did not object to the framing of this issue. On the basis of the evidence led by the parties, the trial court found that the plaintiff was continuously using the land as a passage and for the flow of the rainwater from his shop for the last 30 years and had rightly decreed the suit of the plaintiff holding that he had acquired an easementary right by prescription. The findings given by the courts below are findings of fact, which requires no interference in the second appeal. I further find that no such plea was raised by the defendant in the memo of appeal before the first appellate court nor in the memo of the second appeal before this court. Therefore, i cannot allow the learned counsel for the appellant to raise this question at this stage. ( 11 ) SRI b. D. Mandhyan further submitted that the plaintiff cannot be permitted to discharge the dirty water on the land in question. The submission of the learned counsel for the appellant is incorrect. Rainwater was being discharged and not dirty water. Admittedly the shop was being used for a commercial purpose and was not being used for a residential purpose. The submission of the learned counsel for the appellant is incorrect. Rainwater was being discharged and not dirty water. Admittedly the shop was being used for a commercial purpose and was not being used for a residential purpose. There is no finding of the courts below to the effect that dirty water was being discharged from shop in question and that there was no discharge of rain water. On the other hand the plaintiff had come out with clear case that rainwater findings of fact recorded by both the courts below. No substantial question of law arises for consideration. The appeal is accordingly dismissed. However, in the circumstances of the case, there shall be no order as to cost. Appeal dismissed. .