when it was pleaded that there is no specific channel to discharge rain water and collected water - No decree be passed infavour of the plaintiff = It is specifically pleaded that there is a practice of discharging collected rain water or excess water from field to field, not in a defined channel or stream. Therefore, the Decree and Judgment of the trial court and the first appellate court recognizing the right of the plaintiffs to discharge the collected rain water or excess water from the land of the plaintiffs to the land of the defendant, lower land owner, cannot be prescribed under Section 15 of the Act. Section 17(c) of the Act does not prohibit the acquisition of easementary right regarding the trickling water from higher to lower plots in well defined channel as held by the Privy Counsel in BASWANTAPPA V. BHIMAPPA Section 17 (c) of the Act that such right to discharge excess water or collected rain water to the land of lower owner only for the purpose of discharging surface water and not any other water. But here the plaintiffs wanted to discharge or let out excess or collected rain water from their land, who is upper land owner to the land of the defendant, who is lower land owner without any defined channel or stream.Therefore, in view of bar under Section 17(c) of the Act, the plaintiffs cannot acquire an easement by prescription under Section 15 of the Act and both the Courts did not consider the requirement to prescribe right to let out or discharge collected rain water or excess water in proper perspective and committed an error. Therefore, the Decree of the trial court and the first appellate court are liable to be set aside holding that in view of prohibition contained under Section 17(c) of the Act, the plaintiffs cannot acquire easementary right by prescription under Section 15 of the Act. Hence, the plaintiffs are not entitled to a decree as claimed in the suit.- the findings of the trial court and the first appellate court are in totally ignorance of the law laid down by this Court, and the provisions of Indian Easements Act, particularly, Sections 7 and 17 (c) of the Act. Hence, the appeal is liable to be allowed, answering the substantial question of law in favour of defendants and against plaintiff.
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
SECOND APPEAL No.1403 OF 2011
21-07-2016
Medapti Nagi Reddy, S/o. Dharmayya, Hindu, aged about 63 years, occu:
Cultivation, Mahendrawada, Anaparthi Mandal, East Godavari District. Appellant
Sathi Satyanarayana Reddy, S/o. Prasad Rao, Hindu, aged about 68 years, Occu:
Cultivation, Komaripalem, Biccavolu Mandal, East Godavari District and
others...Respondents
Counsel for the petitioner: Sri N.Siva Reddy
Counsel for the respondents: Sri K. Sarvabhauma Rao
<Gist:
>Head Note:
? Citations:
1.AIR 1915 PC 165
2.AIR 1967 AP 81
3.1956 ALT 778
4.AIR 1963 Patna 76
5.AIR 1956 Orissa 89
6.AIR 1959 AP 153
7.AIR 1914 Mad.507
8.64 IC 418
THE HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY
SECOND APPEAL No.1403 OF 2011
JUDGMENT:
This appeal, under Section 100 of the Code of Civil
Procedure, 1908 (for short, the Code), is filed by the defendant
in OS No.154 of 1989 whereby the suit was decreed declaring
that the plaintiffs are entitled to let out the collected rain water
or excess water from field to field from P marked property
through D marked land and to drainage and also granted
permanent injunction restraining the defendant from interfering
with the right to let out water field to field and finally to drain.
The Judgment of the trial court was confirmed in first appellate
court in A.S. No. 26 of 1997.
02. The parties in the appeal will hereinafter be referred to
as arrayed in O.S. No.154 of 1989, for convenience.
03. The plaintiffs filed the suit for the above two reliefs
contending that they are the owners of the land of an extent of
Ac.1.98 cents in R.S.No.140/2 of Mahendrawada Village, which
was shown as P in the plaint plan and the defendant is the
owner of the land of an extent of Ac.1.51 cents in R.S.No.140/3,
Ac.0.96 cents in R.S. No.139/1 and Ac.0.45 cents in R.S.
No.139/2, which was shown as D in the plaint plan. It is
situated towards Southern side of the plaintiffs land and there
is a land of Gowreswaraswamy deity, Komaripalem in an extent
of Ac.2.45 cents in R.S. No.141/1, towards Northern side of the
plaintiffs land. There is an irrigation canal known as Nalla
Kalava, running from West to East and there is also another
canal called as Pilla kalava emanating from the main canal
running towards South and the canal passing by the side of
deitys land on the North-East and took turn towards Eastern
side. There is an irrigation bode from the North-East corner of
deitys land running from North to South, stops at the land of
the defendant. There is another irrigation bode towards North-
West, which is also running towards South. These two bodes
emanates from Pilla Kalava, which are flowing towards South
touching the East and West Corners of deitys land, running
from the North to South and joins to Southern drainage
channel. The irrigation bode on East is higher in level of the
land of the plaintiffs.
04. There is a drainage channel towards South of the
plaintiffs land. The excess water from the deitys land, from the
land of the plaintiffs and from the land of defendant, flows
towards South from field to field and finally enters into drainage
channel, thus, excess water being let out from field to field and
thus running from P marked land to D marked land and into
drainage. The water letting out through a vent in the field
bunds, and accordingly, they are enjoying the right to let out or
discharge the collected rain water or excess water through the
land of one another for the last more than 50 years. It is also
the practice that to let out collected water from field to field and
finally to bode which joins the channel known as Pilla Kalava,
which emerged from the main canal. Thus, the plaintiffs
perfected their right of discharge or let out excess or collected
rain water by prescription, but the defendant did not permit the
plaintiffs to let out or discharge the water and objected by
raising a bund across the water flow, therefore, the plaintiffs
claimed the aforesaid reliefs.
05. The defendant filed written statement denying the
material allegations while contending that in the plaintiffs land,
which is shown as A, A1, B1, B in the plan filed along with the
written statement, there is a bode, as well as drainage adjoining
to the land of respective adjoining owners, since a long time,
likewise a bode towards Western side of defendants land is
available to let out or discharge collected rain water or excess
water. There was no practice of let out the excess water from
the deitys land to plaintiffs land, from field to field towards
South at any time and thereby the question of prescribing the
right of easement under Section 15 of the Indian Easement Act,
1882 does not arise.
06. It is specifically contended that the excess water and
collected rain water from deitys land has been letting out
towards the Eastern bode shown as A, A1, B1, B in the plan
annexed to the written statement and as well as into the
Western bode. It was the practice for more than 50 years, like
wise, the plaintiffs and their vendors letting out the excess
water, collected rain water into bode, which is towards Southern
side shown as A, A1, B1 B in the plan annexed to the written
statement and thereby the plaintiffs are not entitled to claim any
relief in the suit.
07. The trial court framed as many as six issues, and
during trial, on behalf of the plaintiffs, P.Ws.1 to 5 were
examined, marked Exs.A.1 to A.7. On behalf of the defendant,
D.Ws.1 and 2 were examined, but no document was marked.
Upon hearing the argument of both the learned counsel,
the trial court passed a decree in favour of the plaintiffs.
08. Aggrieved by the Decree and Judgment of the trial
court, the defendant preferred A.S. No.26 of 1997, which was
dismissed by Decree and Judgment dated 21.03.2003, affirming
the Decree, recording concurrent findings.
09. Aggrieved by the Decree and Judgment in A.S. No.26
of 1997 dated 21.03.2003 the defendant being unsuccessful
preferred the present appeal raising the substantial question of
law questioning entitlement of the plaintiffs to claim right of
easement by necessity, to let out collected rain water, which
cannot be prescribed under Section 15 of Indian Easement Act,
1882 (for short, the Act).
In view of the grounds urged in grounds of appeal, the
only substantial question of law is as follows:
"Whether plaintiff is entitled to claim
easement by prescription to let out or discharge
excess water or collected rain water from his field
marked as 'P' to the field of defendant marked as 'D'
in the plan under Section 15 of Easement Act?"
10. Undisputedly, the trial court granted the Decree
declaring that the plaintiffs are entitled to let out the collected
rain water or excess water from the plaintiffs 'P' marked land to
the defendants 'D' marked land as per plan which lower in level
also granted permanent injunction restraining the defendant
from interfering with right to let out the collected rain water or
excess water from plaintiff land to defendants land and to
drainage bodes the same was confirmed by the first appellate
court by its Decree and Judgment in A.S. No.26 of 1997. The
relief specifically claimed in the suit is to declare that the
plaintiffs have a right to let out collected rain water or excess
water through the fields of the defendant, therefrom bode, which
connects Pilla Kalava, as they have prescribed their right under
Section 15 of the Act.
11. Section 7 of the Act deals with easements restrictive of
certain rights, wherein clause (a) deals with exclusive right of
every owner of immovable property (subject to any for the time
being in force) to enjoy and dispose of the same and all products
thereof and accessions thereto; Illustration (g) of Section 7 of
the Act says that the right of every owner of land to collect and
dispose within his own limits of all water under the land which
does not pass in a defined channel, and all water on its surface
which does not pass in a defined channel.
12. Every land owner has a natural right to collect and
retain upon his own land, the surface water passing over his
land and put it to such use he may desire. The natural right of
drainage to discharge surface water possessed by the upper
heritor cannot be limited merely to the natural regulation of the
water according to the law of gravitation and it includes a right
to collect in a body, all the natural surface water which may be
found on a tenement and to discharge it down without causing
more injury than it would have caused by its natural
unregulated flow. The owner of the land on a lower level is
under an obligation to receive surface drainage water from land
on a higher level and at the same time, the owner of the land on
lower level is entitled to conduct ordinary agricultural operations
on it.
13. In GIBBONS V. LENFESTEY the Privy Council held
as follows:
Where two contiguous fields one of which
stands upon higher ground than the other, belong
to different proprietors, nature itself may be said to
constitute a servitude on the inferior tenement by
which it is obliged to receive the water which falls
from the superior. If the water, which would
otherwise fall from the higher grounds insensibly
without hurting the inferior tenement, should be
collected into one body by the owner of the superior
in the natural use of his property for draining or
otherwise improving it, the owner of the inferior is
without the positive constitution of any servitude,
bound to receive that body of water on his property.
14. Thus the natural right for the flow of water from a
higher ground to the lower one is confined to the flow of natural
water generally through natural streams or drains and under
some very special circumstances through artificial streams or
drains and it can never extend to the discharge of artificial water
brought upon the higher land by artificial means specially to
discharge of all kinds of water from a house. Thus, the owner of
upper land is entitled to discharge collected rain water and
excess water to the land of others through a defined channel,
since right to discharge natural water is natural right but when
it infringed the aggrieved person may claim appropriate relief.
15. The trial court placed reliance on a Judgment reported
in C.VENKATAREDDI V. KOTIREDDI , wherein it was held that
right of owner of a high land to drain off the natural surface
water to the adjacent lower lands is incidental to the ownership
of the land. The trial court also referred the Judgment of this
Court reported in SESHAYYA V. SEETAYYA , this Court
referring to Section 7 of the Act held that rights of every owner of
upper land that water naturally raising in, or falling on the said
land shall be allowed by the owner of the adjacent lower land to
run naturally thereof, but excess water from the land cannot be
allowed to flow into the land of defendants, since it is not
surface water or natural water.
16. Based on the principles laid down in the above two
Judgments, the trial court decreed the suit in favour of the
plaintiffs. The first appellate court also affirmed the Decree and
Judgment of the trial court on the same analogy without
adverting to Sections 15 and 17 of the Act.
17. Section 15 deals with acquisition of easement by
prescription. Right to discharge water can be prescribed by
dominant owner over the land of servient tenant. The right to
discharge water, collected rain water or excess water from the
land of upper owner to the lower land can be prescribed subject
to limitation under Section 27 of the Limitation Act. A right by
prescription to pass the surplus rain water by the owner of a
particular land on anothers land can be acquired, if it is proved
that the water passed through a defined channel and not in
different directions on the servient tenement. The discharge of
water by an upper proprietor upon the land of the lower
proprietor may create a right in favour of the upper proprietor, if
the owner of the upper land is able to establish that he was
discharging the collected excess water through a defined
channel to the land of the adjacent lower land owner.
18. A natural right can be claimed regarding the flow of
natural water in a defined channel under certain circumstances,
but such right cannot be claimed for the discharge of artificial
water either through a defined channel or otherwise except by
way of an easementary right as held by the Patna High Court in
a judgment reported in RACHHAYA PANDEY V. SHEODHARI
PAUNDEY . A right to discharge rain water through an artificial
water course upon the land of another is a right which may be
acquired either by long user or by express grant. If such a
drain, the plaintiff must establish the enjoyment of easement as
specified under Section 27 of the Limitation Act. The right to
discharge rain water on the neighbours roof can only be
prescribed either by long usage or by lost grant.
19. In view of scope of Section 15 of the Act, if the plaintiff
is able to establish that he is letting out excess water or
collected rain water through a defined channel to the lower land
for a period of twenty years, is entitled to claim declaratory
relief. But discharge or letting out the water from field to field as
alleged in the plaint and not through a defined water course or
channel would not constitute easement by prescription under
Section 15 of the Act. There is a clear bar under clause (c) of
Section 17 of the Act to acquire such right by prescription.
Section 17 of the Act deals with rights which cannot be acquired
by prescription. According to it, easements acquired under
Section 15 of the Act are said to be acquired by prescription and
are called prescriptive rights. None of the following rights can be
so acquired.
a) a right which would tend to the total destruction
of the subject of the right or the property on which if
the acquisition were made, liability would be
imposed;
b) a right to the free passage of light or air to an
open space or ground;
c) a right to surface water not flowing in a stream
and not permanently collected in a pool tank or
otherwise;
d) a right to underground water not passing in a
defined channel.
20. The present dispute falls within the ambit of clause (c)
of Section 17 of the Act. An identical question came up before
the Division Bench of Orrissa High Court in DHARINDHAR
SAHU ND OTHERS V. BHAGIRATHI SAHU AND OTHERS .
Wherein the Division Bench held as follows:
Section 17(c) of the Act expressly says that
no easement right can be acquired to surface water
not flowing in a stream and not permanently
collected in a pool, tank or otherwise. Illustration G
to Section 7(b) also speaks of the right of every
owner of land to collect and dispose within his own
limits, of all water under land which does not pass
in a defined channel and all water on its surface
which does not pass in a defined channel.
Two principles thus emerge: firstly that an
owner of land is entitled to collect and impound all
surface water passing over his land and secondly,
that no prescriptive right can be acquired in respect
of such water against the servient owner. In other
words, unless the water flows through a defined
channel no right can be acquired either by lost grant
or prescription to the use of such water.
21. The main feature of surface water is its inability to
maintain its identity and existence as a water body. Water
flowing into a field from a known channel and passing along the
field onwards into another field though not over a confined track
in the former field but along its whole area is not surface water
as held by this court in VENKATARAMANAIAH V.
SUBBARAMAYYA following the principles laid down by the
Madras High Court in a judgment reported in ADINARAYANA V.
RAMUDU .
22. In ADINARAYANA referred to supra, the Madras High
Court had an occasion to decide similar question and held that
the chief characteristics of surface water is its inability to
maintain and existence of water body.
23. Merely because water spreads itself over the upper
field before it gets into the lower field, it does not fulfill the
definition of surface water. If it flows in a well defined course
into an upper land spreads itself over the whole field which is
irrigated by it and then over the field ridge to another field or
into an intermediate channel through which it comes into
another field, it can be treated as surface water as held by this
Court in VENKATARAMAIAH referred to supra.
24. Here, the plaintiffs claimed both natural right of
discharging rain water and excess water to the field D as shown
in the plan from field P. Such right is natural right and
question of claiming easement by prescription does not arise, it
is natural servitude. The other right is to discharge or let out
excess water, such right cannot be acquired by prescription.
24. In the present case, the excess or collected rain water
is to be let or discharge into the field of the defendant, as the
collected water from the field of deitys land is flowing into the
land of the plaintiffs, but not in a definite course of channel or a
stream. In such case, the question of easement by prescription
as contemplated under Section 15 does not arise in view of bar
under Section 17 (c) of the Act, since the acquisition of such
right i.e. letting out or discharge of excess water into the land of
lower owner is impermissible, except by natural servitude of
discharge natural surface water, but not collected water.
25. The trial court and the first appellate court without
adverting to Section 15 and 17 of the Act, based on section 7 of
the Act, granted decree in favour of the plaintiffs and against the
defendant declaring that the plaintiffs are entitled to let out or
discharge collected water from the plaintiffs field marked as P
through defendants land marked as D in the plaint plan and to
bode by making one or two vents and also granted permanent
injunction restraining the defendant from interfering with right
to letting out the collected rain water or excess water.
26. On the other hand it is clear from Section 7 of the Act
that such right can be prescribed only when the water is to be
let out or discharged to the land of others through a defined
channel or stream, not from field to field as claimed by the
plaintiffs in the present suit. The trial court and appellate court
did not consider the pleadings in the plaint, more particularly, to
discharge the excess water from the field of plaintiffs to field of
defendant, who is owner of lower land.
27. It is specifically pleaded that there is a practice of
discharging collected rain water or excess water from field to
field, not in a defined channel or stream. Therefore, the Decree
and Judgment of the trial court and the first appellate court
recognizing the right of the plaintiffs to discharge the collected
rain water or excess water from the land of the plaintiffs to the
land of the defendant, lower land owner, cannot be prescribed
under Section 15 of the Act. Both the courts have committed a
serious error in granting Decree, in favour of plaintiff restraining
the defendants from causing obstruction to collected excess
water from the land of plaintiff to land of defendants. .
28. Section 17(c) of the Act does not prohibit the
acquisition of easementary right regarding the trickling water
from higher to lower plots in well defined channel as held by the
Privy Counsel in BASWANTAPPA V. BHIMAPPA . It is also
clear from Section 17 (c) of the Act that such right to discharge
excess water or collected rain water to the land of lower owner
only for the purpose of discharging surface water and not any
other water. But here the plaintiffs wanted to discharge or let
out excess or collected rain water from their land, who is upper
land owner to the land of the defendant, who is lower land owner
without any defined channel or stream.
29. Therefore, in view of bar under Section 17(c) of the
Act, the plaintiffs cannot acquire an easement by prescription
under Section 15 of the Act and both the Courts did not
consider the requirement to prescribe right to let out or
discharge collected rain water or excess water in proper
perspective and committed an error. Therefore, the Decree of
the trial court and the first appellate court are liable to be set
aside holding that in view of prohibition contained under Section
17(c) of the Act, the plaintiffs cannot acquire easementary right
by prescription under Section 15 of the Act. Hence, the
plaintiffs are not entitled to a decree as claimed in the suit.
30. In view of my foregoing discussion, the findings of the
trial court and the first appellate court are in totally ignorance of
the law laid down by this Court, and the provisions of Indian
Easements Act, particularly, Sections 7 and 17 (c) of the Act.
Hence, the appeal is liable to be allowed, answering the
substantial question of law in favour of defendants and against
plaintiff.
31.In the result, the appeal is allowed in part at the stage
of admission, setting aside the Decree dated 30.04.1997 in O.S.
No.154 of 1989 passed by the Principal District Munsiff,
Ramachandrapuram, and the Decree dated 21.03.2003 in A.S.
No.26 of 1997 passed by the Senior Civil Judge,
Ramachandrapuram, to the extent of granting declaration of
permanent injunction restraining the defendant from
obstructing discharge of collected excess water to his land from
the land of the plaintiff, and in the circumstances without costs.
32. Miscellaneous petitions, if any, pending in this appeal
shall stand closed.
___________________________________
M. SATYANARAYANA MURTHY, J
Date: 21.07.2016
SECOND APPEAL No.1403 OF 2011
21-07-2016
Medapti Nagi Reddy, S/o. Dharmayya, Hindu, aged about 63 years, occu:
Cultivation, Mahendrawada, Anaparthi Mandal, East Godavari District. Appellant
Sathi Satyanarayana Reddy, S/o. Prasad Rao, Hindu, aged about 68 years, Occu:
Cultivation, Komaripalem, Biccavolu Mandal, East Godavari District and
others...Respondents
Counsel for the petitioner: Sri N.Siva Reddy
Counsel for the respondents: Sri K. Sarvabhauma Rao
<Gist:
>Head Note:
? Citations:
1.AIR 1915 PC 165
2.AIR 1967 AP 81
3.1956 ALT 778
4.AIR 1963 Patna 76
5.AIR 1956 Orissa 89
6.AIR 1959 AP 153
7.AIR 1914 Mad.507
8.64 IC 418
THE HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY
SECOND APPEAL No.1403 OF 2011
JUDGMENT:
This appeal, under Section 100 of the Code of Civil
Procedure, 1908 (for short, the Code), is filed by the defendant
in OS No.154 of 1989 whereby the suit was decreed declaring
that the plaintiffs are entitled to let out the collected rain water
or excess water from field to field from P marked property
through D marked land and to drainage and also granted
permanent injunction restraining the defendant from interfering
with the right to let out water field to field and finally to drain.
The Judgment of the trial court was confirmed in first appellate
court in A.S. No. 26 of 1997.
02. The parties in the appeal will hereinafter be referred to
as arrayed in O.S. No.154 of 1989, for convenience.
03. The plaintiffs filed the suit for the above two reliefs
contending that they are the owners of the land of an extent of
Ac.1.98 cents in R.S.No.140/2 of Mahendrawada Village, which
was shown as P in the plaint plan and the defendant is the
owner of the land of an extent of Ac.1.51 cents in R.S.No.140/3,
Ac.0.96 cents in R.S. No.139/1 and Ac.0.45 cents in R.S.
No.139/2, which was shown as D in the plaint plan. It is
situated towards Southern side of the plaintiffs land and there
is a land of Gowreswaraswamy deity, Komaripalem in an extent
of Ac.2.45 cents in R.S. No.141/1, towards Northern side of the
plaintiffs land. There is an irrigation canal known as Nalla
Kalava, running from West to East and there is also another
canal called as Pilla kalava emanating from the main canal
running towards South and the canal passing by the side of
deitys land on the North-East and took turn towards Eastern
side. There is an irrigation bode from the North-East corner of
deitys land running from North to South, stops at the land of
the defendant. There is another irrigation bode towards North-
West, which is also running towards South. These two bodes
emanates from Pilla Kalava, which are flowing towards South
touching the East and West Corners of deitys land, running
from the North to South and joins to Southern drainage
channel. The irrigation bode on East is higher in level of the
land of the plaintiffs.
04. There is a drainage channel towards South of the
plaintiffs land. The excess water from the deitys land, from the
land of the plaintiffs and from the land of defendant, flows
towards South from field to field and finally enters into drainage
channel, thus, excess water being let out from field to field and
thus running from P marked land to D marked land and into
drainage. The water letting out through a vent in the field
bunds, and accordingly, they are enjoying the right to let out or
discharge the collected rain water or excess water through the
land of one another for the last more than 50 years. It is also
the practice that to let out collected water from field to field and
finally to bode which joins the channel known as Pilla Kalava,
which emerged from the main canal. Thus, the plaintiffs
perfected their right of discharge or let out excess or collected
rain water by prescription, but the defendant did not permit the
plaintiffs to let out or discharge the water and objected by
raising a bund across the water flow, therefore, the plaintiffs
claimed the aforesaid reliefs.
05. The defendant filed written statement denying the
material allegations while contending that in the plaintiffs land,
which is shown as A, A1, B1, B in the plan filed along with the
written statement, there is a bode, as well as drainage adjoining
to the land of respective adjoining owners, since a long time,
likewise a bode towards Western side of defendants land is
available to let out or discharge collected rain water or excess
water. There was no practice of let out the excess water from
the deitys land to plaintiffs land, from field to field towards
South at any time and thereby the question of prescribing the
right of easement under Section 15 of the Indian Easement Act,
1882 does not arise.
06. It is specifically contended that the excess water and
collected rain water from deitys land has been letting out
towards the Eastern bode shown as A, A1, B1, B in the plan
annexed to the written statement and as well as into the
Western bode. It was the practice for more than 50 years, like
wise, the plaintiffs and their vendors letting out the excess
water, collected rain water into bode, which is towards Southern
side shown as A, A1, B1 B in the plan annexed to the written
statement and thereby the plaintiffs are not entitled to claim any
relief in the suit.
07. The trial court framed as many as six issues, and
during trial, on behalf of the plaintiffs, P.Ws.1 to 5 were
examined, marked Exs.A.1 to A.7. On behalf of the defendant,
D.Ws.1 and 2 were examined, but no document was marked.
Upon hearing the argument of both the learned counsel,
the trial court passed a decree in favour of the plaintiffs.
08. Aggrieved by the Decree and Judgment of the trial
court, the defendant preferred A.S. No.26 of 1997, which was
dismissed by Decree and Judgment dated 21.03.2003, affirming
the Decree, recording concurrent findings.
09. Aggrieved by the Decree and Judgment in A.S. No.26
of 1997 dated 21.03.2003 the defendant being unsuccessful
preferred the present appeal raising the substantial question of
law questioning entitlement of the plaintiffs to claim right of
easement by necessity, to let out collected rain water, which
cannot be prescribed under Section 15 of Indian Easement Act,
1882 (for short, the Act).
In view of the grounds urged in grounds of appeal, the
only substantial question of law is as follows:
"Whether plaintiff is entitled to claim
easement by prescription to let out or discharge
excess water or collected rain water from his field
marked as 'P' to the field of defendant marked as 'D'
in the plan under Section 15 of Easement Act?"
10. Undisputedly, the trial court granted the Decree
declaring that the plaintiffs are entitled to let out the collected
rain water or excess water from the plaintiffs 'P' marked land to
the defendants 'D' marked land as per plan which lower in level
also granted permanent injunction restraining the defendant
from interfering with right to let out the collected rain water or
excess water from plaintiff land to defendants land and to
drainage bodes the same was confirmed by the first appellate
court by its Decree and Judgment in A.S. No.26 of 1997. The
relief specifically claimed in the suit is to declare that the
plaintiffs have a right to let out collected rain water or excess
water through the fields of the defendant, therefrom bode, which
connects Pilla Kalava, as they have prescribed their right under
Section 15 of the Act.
11. Section 7 of the Act deals with easements restrictive of
certain rights, wherein clause (a) deals with exclusive right of
every owner of immovable property (subject to any for the time
being in force) to enjoy and dispose of the same and all products
thereof and accessions thereto; Illustration (g) of Section 7 of
the Act says that the right of every owner of land to collect and
dispose within his own limits of all water under the land which
does not pass in a defined channel, and all water on its surface
which does not pass in a defined channel.
12. Every land owner has a natural right to collect and
retain upon his own land, the surface water passing over his
land and put it to such use he may desire. The natural right of
drainage to discharge surface water possessed by the upper
heritor cannot be limited merely to the natural regulation of the
water according to the law of gravitation and it includes a right
to collect in a body, all the natural surface water which may be
found on a tenement and to discharge it down without causing
more injury than it would have caused by its natural
unregulated flow. The owner of the land on a lower level is
under an obligation to receive surface drainage water from land
on a higher level and at the same time, the owner of the land on
lower level is entitled to conduct ordinary agricultural operations
on it.
13. In GIBBONS V. LENFESTEY the Privy Council held
as follows:
Where two contiguous fields one of which
stands upon higher ground than the other, belong
to different proprietors, nature itself may be said to
constitute a servitude on the inferior tenement by
which it is obliged to receive the water which falls
from the superior. If the water, which would
otherwise fall from the higher grounds insensibly
without hurting the inferior tenement, should be
collected into one body by the owner of the superior
in the natural use of his property for draining or
otherwise improving it, the owner of the inferior is
without the positive constitution of any servitude,
bound to receive that body of water on his property.
14. Thus the natural right for the flow of water from a
higher ground to the lower one is confined to the flow of natural
water generally through natural streams or drains and under
some very special circumstances through artificial streams or
drains and it can never extend to the discharge of artificial water
brought upon the higher land by artificial means specially to
discharge of all kinds of water from a house. Thus, the owner of
upper land is entitled to discharge collected rain water and
excess water to the land of others through a defined channel,
since right to discharge natural water is natural right but when
it infringed the aggrieved person may claim appropriate relief.
15. The trial court placed reliance on a Judgment reported
in C.VENKATAREDDI V. KOTIREDDI , wherein it was held that
right of owner of a high land to drain off the natural surface
water to the adjacent lower lands is incidental to the ownership
of the land. The trial court also referred the Judgment of this
Court reported in SESHAYYA V. SEETAYYA , this Court
referring to Section 7 of the Act held that rights of every owner of
upper land that water naturally raising in, or falling on the said
land shall be allowed by the owner of the adjacent lower land to
run naturally thereof, but excess water from the land cannot be
allowed to flow into the land of defendants, since it is not
surface water or natural water.
16. Based on the principles laid down in the above two
Judgments, the trial court decreed the suit in favour of the
plaintiffs. The first appellate court also affirmed the Decree and
Judgment of the trial court on the same analogy without
adverting to Sections 15 and 17 of the Act.
17. Section 15 deals with acquisition of easement by
prescription. Right to discharge water can be prescribed by
dominant owner over the land of servient tenant. The right to
discharge water, collected rain water or excess water from the
land of upper owner to the lower land can be prescribed subject
to limitation under Section 27 of the Limitation Act. A right by
prescription to pass the surplus rain water by the owner of a
particular land on anothers land can be acquired, if it is proved
that the water passed through a defined channel and not in
different directions on the servient tenement. The discharge of
water by an upper proprietor upon the land of the lower
proprietor may create a right in favour of the upper proprietor, if
the owner of the upper land is able to establish that he was
discharging the collected excess water through a defined
channel to the land of the adjacent lower land owner.
18. A natural right can be claimed regarding the flow of
natural water in a defined channel under certain circumstances,
but such right cannot be claimed for the discharge of artificial
water either through a defined channel or otherwise except by
way of an easementary right as held by the Patna High Court in
a judgment reported in RACHHAYA PANDEY V. SHEODHARI
PAUNDEY . A right to discharge rain water through an artificial
water course upon the land of another is a right which may be
acquired either by long user or by express grant. If such a
drain, the plaintiff must establish the enjoyment of easement as
specified under Section 27 of the Limitation Act. The right to
discharge rain water on the neighbours roof can only be
prescribed either by long usage or by lost grant.
19. In view of scope of Section 15 of the Act, if the plaintiff
is able to establish that he is letting out excess water or
collected rain water through a defined channel to the lower land
for a period of twenty years, is entitled to claim declaratory
relief. But discharge or letting out the water from field to field as
alleged in the plaint and not through a defined water course or
channel would not constitute easement by prescription under
Section 15 of the Act. There is a clear bar under clause (c) of
Section 17 of the Act to acquire such right by prescription.
Section 17 of the Act deals with rights which cannot be acquired
by prescription. According to it, easements acquired under
Section 15 of the Act are said to be acquired by prescription and
are called prescriptive rights. None of the following rights can be
so acquired.
a) a right which would tend to the total destruction
of the subject of the right or the property on which if
the acquisition were made, liability would be
imposed;
b) a right to the free passage of light or air to an
open space or ground;
c) a right to surface water not flowing in a stream
and not permanently collected in a pool tank or
otherwise;
d) a right to underground water not passing in a
defined channel.
20. The present dispute falls within the ambit of clause (c)
of Section 17 of the Act. An identical question came up before
the Division Bench of Orrissa High Court in DHARINDHAR
SAHU ND OTHERS V. BHAGIRATHI SAHU AND OTHERS .
Wherein the Division Bench held as follows:
Section 17(c) of the Act expressly says that
no easement right can be acquired to surface water
not flowing in a stream and not permanently
collected in a pool, tank or otherwise. Illustration G
to Section 7(b) also speaks of the right of every
owner of land to collect and dispose within his own
limits, of all water under land which does not pass
in a defined channel and all water on its surface
which does not pass in a defined channel.
Two principles thus emerge: firstly that an
owner of land is entitled to collect and impound all
surface water passing over his land and secondly,
that no prescriptive right can be acquired in respect
of such water against the servient owner. In other
words, unless the water flows through a defined
channel no right can be acquired either by lost grant
or prescription to the use of such water.
21. The main feature of surface water is its inability to
maintain its identity and existence as a water body. Water
flowing into a field from a known channel and passing along the
field onwards into another field though not over a confined track
in the former field but along its whole area is not surface water
as held by this court in VENKATARAMANAIAH V.
SUBBARAMAYYA following the principles laid down by the
Madras High Court in a judgment reported in ADINARAYANA V.
RAMUDU .
22. In ADINARAYANA referred to supra, the Madras High
Court had an occasion to decide similar question and held that
the chief characteristics of surface water is its inability to
maintain and existence of water body.
23. Merely because water spreads itself over the upper
field before it gets into the lower field, it does not fulfill the
definition of surface water. If it flows in a well defined course
into an upper land spreads itself over the whole field which is
irrigated by it and then over the field ridge to another field or
into an intermediate channel through which it comes into
another field, it can be treated as surface water as held by this
Court in VENKATARAMAIAH referred to supra.
24. Here, the plaintiffs claimed both natural right of
discharging rain water and excess water to the field D as shown
in the plan from field P. Such right is natural right and
question of claiming easement by prescription does not arise, it
is natural servitude. The other right is to discharge or let out
excess water, such right cannot be acquired by prescription.
24. In the present case, the excess or collected rain water
is to be let or discharge into the field of the defendant, as the
collected water from the field of deitys land is flowing into the
land of the plaintiffs, but not in a definite course of channel or a
stream. In such case, the question of easement by prescription
as contemplated under Section 15 does not arise in view of bar
under Section 17 (c) of the Act, since the acquisition of such
right i.e. letting out or discharge of excess water into the land of
lower owner is impermissible, except by natural servitude of
discharge natural surface water, but not collected water.
25. The trial court and the first appellate court without
adverting to Section 15 and 17 of the Act, based on section 7 of
the Act, granted decree in favour of the plaintiffs and against the
defendant declaring that the plaintiffs are entitled to let out or
discharge collected water from the plaintiffs field marked as P
through defendants land marked as D in the plaint plan and to
bode by making one or two vents and also granted permanent
injunction restraining the defendant from interfering with right
to letting out the collected rain water or excess water.
26. On the other hand it is clear from Section 7 of the Act
that such right can be prescribed only when the water is to be
let out or discharged to the land of others through a defined
channel or stream, not from field to field as claimed by the
plaintiffs in the present suit. The trial court and appellate court
did not consider the pleadings in the plaint, more particularly, to
discharge the excess water from the field of plaintiffs to field of
defendant, who is owner of lower land.
27. It is specifically pleaded that there is a practice of
discharging collected rain water or excess water from field to
field, not in a defined channel or stream. Therefore, the Decree
and Judgment of the trial court and the first appellate court
recognizing the right of the plaintiffs to discharge the collected
rain water or excess water from the land of the plaintiffs to the
land of the defendant, lower land owner, cannot be prescribed
under Section 15 of the Act. Both the courts have committed a
serious error in granting Decree, in favour of plaintiff restraining
the defendants from causing obstruction to collected excess
water from the land of plaintiff to land of defendants. .
28. Section 17(c) of the Act does not prohibit the
acquisition of easementary right regarding the trickling water
from higher to lower plots in well defined channel as held by the
Privy Counsel in BASWANTAPPA V. BHIMAPPA . It is also
clear from Section 17 (c) of the Act that such right to discharge
excess water or collected rain water to the land of lower owner
only for the purpose of discharging surface water and not any
other water. But here the plaintiffs wanted to discharge or let
out excess or collected rain water from their land, who is upper
land owner to the land of the defendant, who is lower land owner
without any defined channel or stream.
29. Therefore, in view of bar under Section 17(c) of the
Act, the plaintiffs cannot acquire an easement by prescription
under Section 15 of the Act and both the Courts did not
consider the requirement to prescribe right to let out or
discharge collected rain water or excess water in proper
perspective and committed an error. Therefore, the Decree of
the trial court and the first appellate court are liable to be set
aside holding that in view of prohibition contained under Section
17(c) of the Act, the plaintiffs cannot acquire easementary right
by prescription under Section 15 of the Act. Hence, the
plaintiffs are not entitled to a decree as claimed in the suit.
30. In view of my foregoing discussion, the findings of the
trial court and the first appellate court are in totally ignorance of
the law laid down by this Court, and the provisions of Indian
Easements Act, particularly, Sections 7 and 17 (c) of the Act.
Hence, the appeal is liable to be allowed, answering the
substantial question of law in favour of defendants and against
plaintiff.
31.In the result, the appeal is allowed in part at the stage
of admission, setting aside the Decree dated 30.04.1997 in O.S.
No.154 of 1989 passed by the Principal District Munsiff,
Ramachandrapuram, and the Decree dated 21.03.2003 in A.S.
No.26 of 1997 passed by the Senior Civil Judge,
Ramachandrapuram, to the extent of granting declaration of
permanent injunction restraining the defendant from
obstructing discharge of collected excess water to his land from
the land of the plaintiff, and in the circumstances without costs.
32. Miscellaneous petitions, if any, pending in this appeal
shall stand closed.
___________________________________
M. SATYANARAYANA MURTHY, J
Date: 21.07.2016
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