Deoki Nandan, J. - (1.) THIS is a plaintiff's Second Appeal in a suit for injunction restraining the defendants from obstructing the flow of the water from the Parnala of the plaintiff's house through the drain in the defendants' court -yard on to the drain in the plaintiff's lane as also from obstructing the plaintiff from repairing the drain and the wall of his house. A decree for recovery of Rs. 200/ - as damages said to have been caused to the plaintiff's house was also claimed. The trial Court decreed the suit for injunction, but dismissed it for recovery of damages. On appeal, the lower appellate Court dismissed the suit in its entirety on the ground that the right to flow the water from Parnala had admittedly been obstructed more than two years before the institution of the suit and that being so the prescriptive right of easement on which the plaintiff's claim was based had not been acquired.
(2.) THE suit was filed on the 27th May, 1967. In paragraphs 11 and 12 of the plaint, it has been stated that on the 28th August, 1964, the defendants Nos. 3 to 7 maliciously dug out pits near the foundation of the western wall of the plaintiff's house so that the water from the Parnala might percolate into the foundation causing loss to the plaintiff's house; and, again on the 17th October, 1964, they further damaged the wall of the plaintiff's house and demolished a portion of the drain so that the water from the Parnala may not flow out and may collect and percolate into the foundation of the plaintiff's house. The dates of the accrual of the cause of action for the suit were also specified in paragraph 18 to be the 28th August, 1964 and the 17th October, 1964. The lower appellate Court took the view that the enjoyment of the right to flow the water from the Parnala through the drain in the defendants' house on to the plaintiff's lane was obstructed more than three years before the institution of the suit; and that being so, the suit was liable to be dismissed on the ground that the plaintiff was not in enjoyment of the right claimed by him within two years next before the institution of the suit. For coming to the said conclusion, reliance was placed by the lower appellate Court on the fifth paragraph of Section 15 of the Indian Easements Act, 1882, as interpreted by a learned Single Judge of this Court in Sultan Ahmad v. Wali Ullah, : (1912) 10 A.L.J. 227 wherein it was laid down: "The fifth paragraph of Section 15 of the Easements Act seems to render it impossible to acquire a statutory prescriptive title to an easement unless and until the claim thereto has been contested in a suit." It is noticeable that the said decision was confirmed by a Division Bench of this Court on Letters Patent Appeal in Mohd. Maroof v. Sultan Ahmad, (1913) 12 A.L.J. 415. The Division Bench ruled that "under Section 15 of the Easements Act, under which alone the right of easement was claimed, the period of user must be 20 years or more ending within 2 years before the institution of the suit, wherein the claim to which such period relates in contested." Learned counsel for the appellant drew my attention to a decision given by me in Mahant Zorawar Singh v. Manohar Das : 1981 A.L.J. 1345 wherein Section 47 of the Easements Act was applied, and it was held: Once an casement is acquired whether by prescription or by other lawful means, it could be extinguished by a continuous failure to exercise the right of easement for twenty years. It may, in this context, be noticed that issue 6, which raised this question, also raised the question whether the suit is barred by time. Since the easement in question was an easement of light and air, there could be no question of any bar of limitation because of Section 23 of the Limitation Act, 1908, which laid down the rule that in the case of a continuing breach of contract or a continuing wrong independent contract, a fresh period of limitation begins to run at every moment of time during which the breach or the wrong, as the case may be, continues. Such a right of easement is thus, as held by the lower appellate Court, lost only by twenty years non -user as laid down by Section 47 of the Easements Act.
(3.) THAT case is clearly distinguishable, inasmuch as the prescriptive right of easement in that case had been recognized by a decree of Court and it was in that context that those observations were made. The very first sentence of the above observations relied upon by the learned counsel opens with the clause "once an easement is acquired whether by prescription or by other lawful means" and in paragraph 5, while detailing the facts, it has been observed at page 1346 in column 1, that the right of easement had been recognized between the parties by a decree dated 1st October, 1923 in an earlier Suit No. 865 of 1923. That case does not, therefore, lay down any thing contrary to the rule enunciated by this Court in Sultan Ahmad's case (supra). I may, as well, refer to another decision given by me in Syed Manzoor Hussain v. Hakim Ali : A.I.R. 1980, All. 389, in which it was observed that it is an essential condition of the acquisition of right of way as an easement by prescription under Section 15 of the Easements Act, that it should have been enjoyed within 2 years next before the institution of the suit and that the right of way having been interrupted more than two years before the institution of the suit, the plaintiff could not be said to have a right of way through the land in suit as an easement acquired by prescription on the date of suit. Other cases which have followed Sultan Ahmad's case (supra) and to which my attention was drawn, are: Mt. Chanda Devi v. Mt. Kirpa : A.I.R. 1947 All. 374 Madan Lal v. Giri Lal : A.I.R. 1970 All. 404 and Sughar Singh v. Putta Singh 1957 A.W.R. 186.;