- (1.) This second appeal raises the controversy between an easement and a licence. It involves the construction of a certain document as well as the interpretation of some sections of the Transfer of Property Act, Registration Act and the Stamp Act. It will be appropriate to summarise the relevant facts giving ride to this appeal.
(2.) The plaintiff in the suit purchased a certain land from one Haridas Chatterjee, by a registered document dated the 8th June, 1925. Sometime after the purchaser, on the 25th February, 1926, there was an agreement between Haridas and the plaintiff on an ordinary piece of paper on a stamp of one anna whose material portions may be translated as follows: "(a) You have since the purchase of the land from me built a pucca house where you are now living. (b) As there is no outlet for the water from your house you have made a drain connecting it with my land over which you are flowing the water from the house across my land to a tank or a doba in my land. (c) As I raised objection to such right to the flow of water from your house upon my land into my doba but as you prayed for such a permission on the ground that there was no other outlet for you, I have agreed to allow you to do it on payment of the consideration of Rs.5/- for which I am giving you this receipt. (d) I shall not object to this flow of water and even if I do my objection will not be valid." About seven years later, on the 28th August 1933, the defendant purchased another portion of the land from Haridas Chatterjee which contains this tank or doba.
(3.) The defendant has objected to this flow of water. On or about 9th June, 1953 the plaintiff instituted this suit for declaration of his right to discharge the flow of water of his house to the doba of the defendant by the existing pucca drain of his house as shown in sketch map attached to the plaint for injunction. This suit had a chequered history. The learned Munsif decreed the suit in the first instance holding that the plaintiff had the right to discharge the flow of water as alleged. There was an appeal and the appeal was allowed and the suit was dismissed. Against the judgment of the lower appellate Court a second appeal was filed to this Court which was allowed and the appeal was sent back to the lower appellate Court for fresh hearing on the evidence already on record and to decide the appeal in the light of the observations made by this Court. Niyogi, J. who remanded the case observed inter alia that the learned Subordinate Judge had not come to any specific or positive finding that the document dated the 25th February, 1926 which is marked Exhibit 3 was in fact executed by Haridas or that it was prepared collusively in collusion with Haridas and the present respondent. Niyogi, J. also observed that the lower appellate Court had not come to any finding on the point whether the water mentioned in that agreement was rain water only or foul water. Lastly, the learned Judge also observed that the particular document, Exhibit 3, was not inadmissible for want of registration. In that view of the matter Niyogi, J. allowed the appeal and sent the case back to the lower appellate Court for a fresh hearing on the evidence already on the record and directed the learned Subordinate Judge to decide the appeal in the light of the observation made in the judgment and in accordance with law.;