ABDUL KARIM KHAN Vs. MANAGING COMMITTEE, GEORGE HIGH SCHOOL

JUDGEMENT

(1.) This is a Letters Patent Appeal by the plaintiffs whose suit has been dismissed by a learned Single Judge of this Court in second appeal. The plaintiffs prayed for a perpetual injunction restraining the defendants from interfering with the flow of water over the land in the possession of the defendants. The plaintiffs and defendants have portions of land in the municipal area of the city of Azamgarh. The portion of land held by the defendants was acquired by Government under the Land Acquisition Act and a school has been built upon it, the George High School, which is in the possession of the defendants. The case as argued on Letters Patent appeal first of all was that the plaintiffs drain amounted to a customary right under Section 2(b), Easements Act and did not amount to an easement under Section 4 of that Act. In Section 2(b) the words used are: Any customary or other right (not being a license) in or over immoveable property which the Government, the public, or any person may possess irrespective of other immoveable property.

(2.) The customary right therefore to which this section refers must be one which is possessed irrespective of immoveable property. Now we are of opinion that the right for drainage, that is for the water, which is on or comes on to the land of the plaintiff's to flow over certain other ground, is a right which is connected with the immoveable property owned by the plaintiffs. If the plaintiffs do not own any immoveable property there cannot be any drain in which they are interested. They are only interested in drainage from immoveable property. Therefore in our opinion a customary right cannot cover this kind of right. On the other hand the definition of "easement" applies precisely to the case of the plaintiffs as defined in Section 1, Easements Act which says: An easement is a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in, or upon, or in respect of, certain other land not his own.

(3.) The argument for the appellants was put forward in order to get over the difficulty of the acquisition under the Land Acquisition Act of the land over which the plaintiffs claim their right of drainage. Now in Section 3(b), Land Acquisition Act it is stated: The expression person interested , includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.