MANNALAL KANCHEDILAL Vs. DALCHAND KANHAIYALAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the judgment of the first appellate Court reversing the decree in his favour passed by the trial Court restraining by perpetual injunction the defendant from constructing any structure on a narrow strip of open land between the two houses -which at the time the suit was filed and the order of temporary injunction was made, was found to be 37" long and 27" wide -and in any other manner interfering with the plaintiff's right of draining the water from his roof into this strip used as "abchuk". Both the Courts have rejected the plaintiff's assertion of a right of easement for air and light in that direction; there is no objection to the defendant's building on his land beyond the abchuk already described.

(2.) THIS case raises important questions regarding the common land (or intervening land) between two houses used solely for draining of the rain water, without any other evidence of title -whether (a) it is joint property with the owners of the two adjoining houses having equal joint right over every square inch, (b) it is common land in the sense that title vests in either owner upto the middle thread with an easement for draining water vesting in either owner in the half belonging to the other, or (c) it belongs to one of the two, with the other having over it an easement mentioned in (b). In general, the case resembles the one about intervening walls. There are further questions regarding the competency of the second appellate Court.

(3.) THE defence was that there was no passage whatsoever, or abchuk between the houses and no right, title or interest of the plaintiff beyond his western wall. It was the defendant's land upto that very wall and as such he was entitled to put up any structure on his property. The plaintiff has no right of easement of air, light or water -drainage. In the alternative, the defendant also pleaded that even if the plaintiff had a right of easement to drain his roof water, he cannot be allowed to succeed in his attempt of enlarging it. Till shortly before the suit, his wall in that side was only 8" high; but now he has raised it to a much greater height and thereby seeks to let the water pour with greater force. Even if he had had an easement, he could not claim it in this enlarged form.