K. M. Dayal, J. - (1.) HEARD the learned counsel for the parties. The appellants had their house in village Abadi Plot No. 1327. Near their house, there was a paudar (incline for rub-way of bullocks for the purpose of drawing water from well). A portion of that paudar which fell in plot no. 1327 is claimed to be in the sehan of the defendants. The plaintiff's well and house etc. are in plot no. 1379. The paudar extends from the well in 1379 to 1327.
(2.) THE plaintiffs filed a suit claiming that they had made the paudar for drawing water from their well in their sehan and the paudar was in the vacant land in Abadi. It was contended that the paudar was in existence since 60 years and the defendats had no right to interfere in the use of the same. THE defendants, maliciously filled up the portion measuring 18 feet east-west and 17 feet north-south and brought it to the level of the adjoining land and occupied the same. THE occupation was without any right and, therefore, the suit was filed claiming the removal of the earth from the pit of the paudar and restoring it to the original position and the defendants be restrained from interfering in the plaintiff's right to use the paudar for drawing water from the plaintiff's well. The defendants filed a written statements claiming that the land beyond plot no. 1379 and in Abadi plot no. 1327 over which the paudar was made belonged to them. It was contended that earlier there was a joint-paudar, but about 14-15 years ago the plaintiff no. 1 made a paudar towards south. The disputed paudar was built by the defendants about 9 or 10 years ago for their own use and for drawing water from the well in question. The plaintiffs never used the paudar for that purpose. The suit was dismissed by the trial court holding that the plaintiffs were not the owners of the portion of the paudar which was interrupted and, therefore, the suit was beyond time. The lower appellate court allowed the appeal and decreed the suit of the plaintiffs not only for injunction, but for possession as well. It held that the defendants admitted themselves to be the owners of the land under the paudar and the plaintiffs, having claimed the easement, had matured their rights and were entitled to the injunction against the defendants.
(3.) THE learned counsel for the appellant; firstly argued that the decree for possession could not be granted in favour of the plaintiffs as they were not found to be the owners of the land in dispute and utmost they would be entitled only to injunction. THE learned counsel for the respondents very fairly conceded to the position and agreed that in the present suit the decree for possession could not be granted in favour of the plaintiffs. The second question that is raised by the learned counsel was that the digging of the land for making the paudar in the defendants' land would amount to destruction of the Sehan itself. Due to that reason no prescriptive right could be acquired under Sec. 15 of the Easements Act. He relied upon Clause (a) of Sec. 17. The learned counsel for the respondents argued that this question, though of law, was not raised at any earlier stage and, therefore, the parties could not argue the same in the Second Appeal. I am not impressed by the argument. Section 15 has been relied upon by tie courts below aswell as the plaintiffs respondents. Section 17 is merely a limitation placed on the rights that can be acquired under Sec. 15. Consequently if Sec. 15 was limited in its operation by Sec. 17, it could not be said that Sec. 17 could not be argued. It is, however, clear that the parties have not pleaded this curb on the rights under Sec. 15 and consequently neither any issue was framed nor evidence was led. The learned counsel for the respondents' second argument about this question is that if a paudar is made, the Sehan was not destroyed. That will not be correct. The paudar on this plot no. 1327 would be going deep much below the level of the adjoining land. It is clear from paras 11 and 12 of the plaint itself that the defendants had filled up the pit. Obviously the Sehan would be lost if paudar exists. Total destruction of the subject of the right would not mean that the property should disappear. It would only mean that it could not be identified with the remaining property. If total destruction is to be taken in the sense that the property ceases to exist, that situation would be impossible. Otherwise even if a deep well is dug still there will be land at the bottom of the well and it could never be destroyed totally. Therefore, if it is found that due to easement claimed the property cannot be used for the purpose, for which it was used, that would amount to total destruction of the subject matter of the property. Subject matter of the right is the sehan land.;