Decided on February 11,1944



Chandrasekhara Ayyar, J. - (1.) THE question in this second appeal preferred by the plaintiff is whether he is entitled to drain off the water falling on the northern side of the well shown as W in the plan through the sluice C to the defendant's southern portion round the well so that it may ultimately pass through the drainage channel D. The District Munsif held that he had this right; but the Subordinate Judge came to a contrary conclusion.
(2.) THAT the right was being enjoyed for 20 years prior to the suit peaceably and uninterruptedly, which is the case put forth in the plaint, has been negatived by the Subordinate Judge for adequate reasons. But he has also held that this is not an easement of necessity, because the plaintiff's house abuts on a street and it should be easy for the plaintiff to carry the water falling on his side of the well to the street. Easements of necessity are those described in Clauses (a), (c) and (e) of Section 13 of the Act and illustrations (a), (b) and (m) indicate what are such easements. In this sense, there is no doubt whatever that the easement claimed by the plaintiff is not one of necessity. According to the Subordinate Judge, he has other means of draining off the water. What is urged however for the appellant is that it is not necessary for giving relief to the plaintiff to find that the easement he claims is one of necessity, as so understood, if, owing to the slope of the land or the configuration of the property, water falling on What has now become his portion has been passing towards the land of the owner of the other half. It is contended that the well was joint property and was partitioned in 1933 according to the defendant. If at that time water was flowing from the northern side of the well to the southern side, he must be allowed the said right, whether the enjoyment was for a short period or a long period. The Subordinate Judge has said that the sluice C could have been put up only after 1933 and that the plaintiff's case that the water was flowing through the sluice C to D for more than 20 years cannot be accepted as true. The answer attempted is that, if water was flowing along C in the direction of D even previously, this is enough even if the sluice C came into existence only when the partition wall was erected in 1933 or thereabouts.
(3.) RELIANCE is placed on Section 13 (f) of the Act in support of the plaintiff's right. The right falls within this clause, as it has been held in C. Parvatamma v. Lanka Sauyasi, (1911) 34 Mad. 487, that a drain is an apparent and continuous easement, following some English cases. The same position is stated in Gale on Easements, Edn. 11, at p. 31, where the right to discharge water on to a neighbour's land is spoken of as a continuous servitude as contrasted with a right to draw water from a well which is described as discontinuous servitude. The case for the plaintiff, based on the slope of the property, that water had been flowing from his side of the well to the defendant's side of the well, which has been accepted by the District Munsif as every probability was in support of it, has not been negatived by the Subordinate Judge who concentrated his attention on the existence of the drain C for over 20 years, as alleged by the plaintiff in his plaint. Even the defendant did not say in his evidence that water was not flowing from the plaintiff's portion of the well towards his side of the well as the plaintiff stated. He was controverting the plea that the enjoyment was for over 20 years. If the easement is apparent and continuous and necessary, not in the sense of absolute necessity but necessary for enjoying the share of the dominant tenement as it was enjoyed when the partition of joint property took effect it shall pass to the owner of the dominant tenement. For not viewing the case of the plaintiff from this standpoint, the plaintiff was mostly responsible, as he seems to have urged that he got the right as an easement by way of prescription or as an easement of necessity.;

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