M.H. Beg, J. - (1.) This second appeal arises out of a suit for a permanent injunction to restrain the defendant No. 1 from interfering with the right claimed by the plaintiffs to flow their water through a drain constructed by the Agra Municipal Board which was impleaded as defendant No. 2. The Municipal Board did not contest the plaintiff's claim. East of this drain, and adjoining and running along it, is a piece of land leased by the Improvement Trust, defendant No. 3, to the plaintiffs. The Improvement Trust does not dispute the plaintiffs' rights. On the western side of the drain is also some Nuzul land said to have been encroached upon by the defendant No...I against whom the Municipal Board has taken proceedings for this encroachment. The contesting defendant-respondent admitted in paragraph 7 of his written statement, that the above mentioned drain has been constructed by the Municipal Board, although the contesting defendant denied that the plaintiffs had been flowing their water through this drain for a long period. The contesting defendant alleged that the drain was constructed only five years ago. The defendant denied the right of the Municipal Board and the Improvement Trust to lease the land, along which the drain in question runs, to the plaintiffs. The contesting defendant did not set up any right over the land through which the part of the drain still in dispute runs, but he contended himself by pleading that the Municipal Board had no right to construct a drain in front of the defendant's house. Towards the north-west of the drain lies the house of the contesting defendant, and towards its north-east the plaintiff's house is situated. There was a dispute with regard to a portion of the drain running east-west in front of the house of the contesting defendant, but the trial court granted a mandatory injunction against the contesting defendant-respondent only in respect of the drain running from north to south adjoining the land leased to the plaintiffs-appellants by the Improvement Trust of Agra. During the pendency of the suit, the Municipal Board served a notice upon the contesting defendant to restore the damage done by him in the drain in dispute running from north to south, and it then restored it.
(2.) The trial court granted a mandatory injunction and ordered the defendant No. 1 to allow the plaintiffs to discharge their water in the Municipal drain from their house, at a point marked Z on the map attached to the plaint, and to remove obstruction of plaintiff's rights to flow water. The drain in which this water is discharged leads the water towards south in a direction away from the house of the contesting defendant. This newly constructed drain joins another drain further south, constructed by the Municipal Board, running from west to east. The objection of the contesting defendant to this flow of water by the plaintiffs was that the discharge of dirty water by the plaintiffs into the Municipal drain at point X causes a nuisance to the contesting defendant. But, the question whether any nuisance was caused or not lost its importance and was not raised during the trial of the suit. No issue was framed upon this question, and this objection was apparently abandoned by the contesting defendant. The only question agitated in and tried by the trial court was whether the plaintiffs had a right under Sec. 191 of the U.P. Municipalities Act to discharge their water in the Municipal drain, and this question was answered in the affirmative by the trial court. The lower appellate court confined its decision to the question whether the plaintiffs had established their rights under Sec. 191 of the U.P. Municipalities Act, as it was the only question raised there, and it answered this question in the negative. The lower appellate court also held that the plaintiffs did not plead any right under Sec. 191, U.P. Municipalities Act. The appeal of the contesting defendant having been allowed, the plaintiffs have come up in second appeal to this Court.
(3.) It has been argued that the contesting defendant had no right whatsoever to object to or interfere with the flow of water by the plaintiffs-appellants into the drain constructed by the Municipal Board at the instance of and at the cost of the plaintiffs-appellants. There is no dispute on question of fact now. It has been established that the drain in question was constructed by the Municipal Board on the application of and at the cost of the plaintiffs. The contesting defendant also described it as the "Municipal drain" and could show on right whatsoever to interfere with the flow of the water in this drain. The lower appellate court did not consider or decide the basis of the right of contesting defendant-respondent to object to the flow of water by the plaintiffs through the Municipal drain. The trial court had, in my opinion, rightly held that the action of the Municipal Board in constructing the drain on the application of and at the cost of the plaintiffs-appellants was sufficient to prove the right of the plaintiffs to use the Municipal drain, and that the plaintiffs-appellants had duly established their claim to the benefit of Sec. 191 of the U.P. Municipalities Act. In the alternative, the trial court held that only the Municipal Board could take an objection against the use of a public drain by a private owner on the ground of want of its written permission. The lower appellate court differed from the trial court on both these points. It, therefore, becomes necessary to decide which of these two views is correct. Sec. 191 of the U.P. Municipalities Act runs as follows:- "(1) The owner or occupier of a building or land within the Municipality shall be entitled to cause his drains to empty into the drains of the Board, provided that he first obtains the written permission of the Board, and that he complies with such conditions consistent with any bye-law as the Board prescribes as to the mode in which, and the superintendence under which the communications are to be made between drains not vested in the Board and drain es which are so vested. (2) Whoever, without the written permission of the Board or in contravention of any bye-law or of any direction or condition made or imposed under sub-Sec. (1), makes or causes to be made, or alters or causes to be altered, a connection of a drain belonging to himself or to some other person with a drain vested in the Board, shall be liable upon conviction to a fine which may extend to fifty rupees, and the Board may by written notice require such person to close, demolish, alter, remake or otherwise deal with such connection as it deems fit.";