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Second Appeal No. 313 of 1954, decided on 19th June 1956, from the order of Sardar Ata Ullah, Additional District Judge, Gujrat, dated the 7th July 1954, affirming that of Ch. Hameed Ullah, Senior Civil Judge, Gujrat, dated the 12th April 1954.
, S. 23‑Water discharged from a higher height than formerly, by dominant owner, and by pipe instead of water spout‑Additional burden.
Where rain‑water from the roof of the dominant owner was discharged by a parnala on to the courtyard of a neighbor, and the dominant owner built a Bala‑khana on. his roof and wanted to discharge the rain‑water from the Balakhana by means of a pipe on to the roof of the neighbor and not on to his courtyard.
Held, that this imposed an additional burden on the servant heritage.
Mulia Bhana v. Sundar Dana A I R 1914 Bom. 243, Ayoob Ismail v. Noor Muhammad Sileman A I R 1915 Sind 12 add Harvey v. Walters (1873) 8 C P 162 ref.
Right to go on another's land in order to plaster and repair own wall‑Can only be acquired as an ease ment‑Limitation Act (IX of 1908), S. 26.
With mutual consent one can always enter upon the premises of another to repair and plaster one's wall, but when the question of right comes in then it has got to be established like any other right. Such a right is based on the right of easement, and an easement can be acquired under section 26, Limitation Act (IX of 1908).
Mangulal Agarwalla v. Chandi Charan Mukerji 40 C W N 222 ref.
Iftikhar‑ul‑Haq Khan for Appellant.
M. Wajid Ali Shah for Respondents except Respondent 5.
Nemo for Respondent 5,
Dates of hearing: 4th and 11th June 1956.
This second appeal has arisen out of a suit brought by the plaintiff:‑appellant for the issue of a permanent injunction to the effect that the defendants respondents should not prevent the plaintiff from fixing a parnala (pipe) from Dal to Re on the exterior side of the eastern wall of his Bala‑khana as shown in the plan attached to the plaint and from repairing and plastering the eastern wall of his house.
It was alleged in the plaint that the house of the defen dants is towards the east of the house of the plaintiff and the water of the roof of the house of the plaintiff had been flowing into the courtyard of the house of the defendants for over 50 years through the parnala marked "C" in the plan and as such he had acquired a right of easement. He had recently constructed a Bala khana over the southern portion of the roof of his house and had fixed a pipe on the exterior side of the eastern wall of the Bala‑khana with a view to discharge the water of the roof of the Bala‑khana through the old parnala fixed at "C" but the defendants had forcibly removed it and had prevented him from plastering and repairing the eastern wall.
The suit was resisted by the defendants on the ground that the plaintiff had no such right.
This suit was originally tried by Ch. Muhammad Abdullah Cheema, Senior Civil Judge, Gujrat, who had framed the following issues :‑
(1) Whether the plaintiff has acquired a right of ease ment with respect to the water‑spout as alleged
(2) Is the suit within time
(3) To what relief the plaintiff is entitled
Deciding all the issues against the plaintiff, he had dis missed the suit on 13th July 1953.
On appeal by the plaintiff, the learned District judge being not satisfied with the mode of the trial set aside the judgment and decree and remanded the case for retrial after framing the necessary issues.
By that time, Ch. Hamid Ullah had succeeded Ch. Muhammad Abdullah Cheema as Senior Civil Judge. He got the plans Exhs, L.C./I and L.C./2 prepared and after ins pecting the spot and examining the parties framed the following issues :‑
(1) Whether the plaintiff has acquired right of discharg ing through the parnala shown in red in plan L.C./2, the water used for washing utensils
(2) Whether the plaintiff is possessed of the right to fix a pipe on the eastern wall of his chaubara
He also decided both the issues against the plaintiff and dismissed the suit.
The plaintiff again appealed to the District judge who was still not satisfied with the trial but on the whole he agreed with the findings of the trial Court and dismissed the appeal.
The plaintiff has now come up in second appeal before this Court.
Mr. Iftikhar‑ul‑Haq Khan, the learned counsel for the appellant, has urged that the case has not been properly tried by the lower Court. His grievance is that issue No. 1 was unnecessarily framed and the finding on that issue had ad versely affected his rights as the owner of the dominant tenement. He has invited my attention to the statement of the counsel for the defendants who had admitted on 2nd March 1954 that the parnala shown in red in the plan Exh. L.C /2 had been in use for more than 20 years. His conten tion, therefore, is that the right of easement having been established beyond doubt, this issue was not necessary at all. The learned District judge also appears to be of the same view.
But I do not agree. In his plaint, the plaintiff had alleged that the rain‑water and other domestic use‑water had been flowing through the parnala for more than 50 years. In the written statement this was denied. The counsel for the defendants in his statement had admitted the flow of the rain water only, but he had categorically asserted that the water used for washing utensils was never discharged through this parnala. As such, the parties were certainly at issue on this point, and, in my opinion, issue No. 1 was properly framed and decided.
The learned counsel, however, has vehemently urged that both the Courts below have erred in law in deciding issue No. 2 against the plaintiff. It was contended that in view of the admission of the counsel for the defendants, the plain tiff, at any rate, has the right of easement for discharging the rain‑water from the roof of his house through the old parnala marked "C". He, therefore, urged that by cons tructing the Bala‑khana only the mode of the enjoyment of the easement has been changed without adding any additional burden upon the servant tenement. He referred to section 23 of the Easements Act in this connection and claimed that the plaintiff has the right to discharge the rain‑water of his Bala‑khana into the courtyard of the house of the defendants through a pipe which the plaintiff wishes to fix on the exterior side of his Bala‑khana towards the house of the defendants.
The learned counsel for the defendants has urged that it will impose a greater burden on the defendants' land as the water would now fall from a greater height with greater pressure and that the plaintiff by fixing a pipe to the Bala khana will actually encroach upon the land of the defendants of which he has got no right.
The question for determination, therefore, is whether the burden will not be increased on the servant tenement.
It may be pointed out here that the plaintiff admitted that about 15 years ago the defendants had put up a new roof over their courtyard which touches the eastern wall of the plaintiff's house above the old parnala marked "C" in the plan. It is, therefore, obvious that the roof of the courtyard of the defendants' house shall have to be pierced through to connect the pipe from the Bala‑khana with the old parnala, and if the pipe is not fixed then the water would fall on the roof which would cause damage to it.
Reliance has been placed on behalf of the appellant on Mulia Bhana v. Sundar Dana (A I R 1914 Bom. 243) in which it was held that if a person has acquired an easement from a projection of caves at a particular height over another's land he can raise the height of those caves so long as he does not throw an increased burden upon a servant tenement. It is not clear from this judgment to what extent the caves had been raised. This ruling was followed in Ayoob Ismail v. Noor Muhammad Sileman (A I R 1915 Sind 12). Reliance was also placed on the general principles enunciated in Harvey v. Walters ((1873) 8 C P 162). In that case the house in respect of which an easement was enjoyed was pulled down and was replaced by a new house three feet higher than the original one, and the caves through which the plaintiff had acquired the right of easement to discharge the rain‑water on to the defendants' land and had also been raised to that extent. It was held that there being no evidence that a greater burden was thrown on the servant tenement by the alteration, the easement was not destroyed. This, I believe, is the leading authority on the subject and was relied upon in the rulings cited above.
The principles which can be reasonably inferred from these rulings are that the dominant owner may, from time to time, alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servant heritage. A slight variation in the enjoyment of the right, caused due to an alteration made by the dominant owner in the mode of his user is of no consequence provided no additional or onerous burden is placed on the servient tenement. The servient tenement how ever, cannot be subjected to a greater disadvantage. The dominant owner cannot be allowed to take up the plea that the additional burden can be borne by the servient tenement without much harm being done to it.
Applying these principles to the facts of the present case it is quite clear that the discharge of the rain‑water from roof of the Bala‑khana on the roof of the defendants' court yard will certainly amount to an additional burden on the servient tenement. The plaintiff no doubt has got the right to discharge the rain‑water through the old parnala (C) into the courtyard of the defendants' house but he has no right to discharge that water on to the roof of the defendants' courtyard. In any case, the plaintiff has not established his right to fix the pipe to his eastern wall, which act will amount to encroachment into the house of the defendants. The right of easement to discharge water on to the land of another does not carry with it the right to fix a pipe over the land of the other. Under section 24 of the Easements Act the dominant owner is entitled as against the servient owner to do all acts necessary to secure the full enjoyment of the easement, but that does not mean, as is clear from the illustrations given under this section, that the dominant owner is entitled to place any additional burden on the servient tenement. I am, therefore, of the opinion that issue No. 2 has been rightly decided against the plaintiff by the Courts below.
Lastly, the learned counsel contended that no isssue was framed about the right of the plaintiff to repair and plaster the eastern wall of his house and no finding has been given on this point.
In this connection, he again invited my attention to the statement of the counsel for the defendants made by him on 2nd March 1954, in which he had stated that the defendants had never objected to and will never object to the repairing and plastering of the wall. It may, however, be pointed out that the basis of this night was nowhere disclosed in the plaint and surely no right of easement was claimed in respect of it. With mutual consent, of course, one can always enter upon the premises of another to repair and plaster one's wall, but when the question of right comes in, then it has got to be established like any other right, and there cannot be any doubt about it that this right is also based on the right of easement. This point specifically came up for consideration in Mangulal Agarwalia v. Chandi Charan Mukerji (40 C W N 222.) where it was held that a right to go upon another's land for the purpose of repairing a wall or house can be acquired under section 26 of the Limitation Act. This section provides as follows :‑-
"26. (1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement and as of right, without interruption, and for twenty years,
and where any way or watercourse, or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption, and for twenty years,
the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible".
The plaintiff has not alleged any such right in the plaint and he never moved the Court at any stage of the trial to frame an issue on the point. The point was also not taken up before the lower appellate Court. It appears that realizing its weakness it was never pressed. The admission of the defendants' counsel does not refer to the right of the plaintiff to enter upon the premises of the defendants. Under the circumstances, I do not think any useful purpose will be served by investigating into this alleged right at this late stage. The plaintiff having failed to lay down the foundation for such a right in the plaint cannot now be permitted to agitate this question in second appeal.
For the aforesaid reasons, I dismiss this appeal with costs.
A. H. Appeal dismissed.
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