Bansraj and Others vs Ram Sakal

R.M. Sahai, J.—In this second appeal the only question which, survives for consideration is whether right of flowing of dirty water (Nabdaan) which has been found to be nuisance could be acquired by easement.

In Jag Narain and Another Vs. Ram Dularay and Another, it has been held by this Court :

that the Appellant cannot be he''d to haye acquired easementary right to flow dirty water. The reason is obvious. Nuisance is not a legal and enforceable act. On the other hand it is an act actionable at law. Therefore the Easement Act cannot recognise that right which amounts to a nuisance.

This decision concludes the controversy against the Plaintiff.

learned Counsel, however, placed reliance on Brij Mohan v. Hazari Lal, 1935 AWR 1513 , wherein it was held that right to drain sewage water on the servient tenement is a continuous easement. According to learned Counsel in view of this decision right to flow dirty water from the Court yard of the Defendant was a right which the Plaintiff could acquire by way of easement. Therefore, the. lower appellate Court committed an error in setting aside the decree passed by trial Court and dismissing the suit so far as it related to flowing of the sewage water. In this Full Bench decision it was assumed that right to flow sewage water was a right of easement. It was never claimed that flowing sewage water is a nuisance and no person could acquire an easementary right in nuisance. The Full Bench decision therefore, is not helpful to the Appellant.

Reliance was also placed on Mehar Singh v. Indra Singh, AIR 1975 P & H182, wherein it was held that there is distinction in cases where acts were inheremly wrongful and the one where a party was doing wrong by diverting the rain water from his own house to the public street. The principle laid down in this decision does not run counter to the principle laid down by this Court in Jag Narain v. Ram Dulare''s case (Supra).

Apart from this from the order of the lower appellate Court and the report of the Commissioner it appears the Plaintiff can flow his water from an alternative route. In such circumstances it will not be a fit case where the order of the lower appellate Court should be set aside and the Plaintiff be granted an injunction of flowing sewage water from the Court yard of the Defendant The granting of relief by injunction is discretionary. It is not a fit case where this discretion should be exercised in favour of Plaintiff.

In the result this appeal fails and is dismissed, but there shall be no order as to costs.