Hari Ram vs Thakar Dwara Jee Maharaj

G.R. Majithia, J.—Plaintiff-appellant has come up in regular second appeal against the judgment and decree of the First Appellate Court affirming on appeal those of the trial Judge dismissing the suit for declaration that he is entitled to irrigate his land from the disputed well.

The facts :-

The plaintiff-appellant (herein-after, referred to as the plaintiff) is owner of the land bearing khasra No. 227, situated in the revenue estate of village Khera Bagh ; that a well existed in the land bearing Khasra No. 223 ; that the said well had been sunk since the times immemorial by some Maharajni for public purpose ; that the total area of the land comprised in khasra No. 227 is 13 kanals 11 marlas and out of this, 6 kanals 11 marlas was receiving, irrigation through the well, the remaining was Ghair Mumkin abadi ; that the plaintiff and his fore-fathers had been irrigating the said and by drawing water from the disputed well, first by means of Charas and thereafter, by installing persian wheel ; that the plaintiff installed a tubewell in the well and has been irrigating the land by means of the tubewell installed in that well ; that the plaintiff and his predecessors have been peacefully and without any interruption irrigating their land ; that they had acquired a right of easement by prescription to irrigate the land from the disputed well and that Thakar Dewar Jee Maharaj, defendant No. 1, obstructed the plaintiff from irrigating the land by means of a tubewell.

Defendant No. 1 denied the allegations made in the plaint and also pleaded that the plaintiff had no locus standi to file the suit.

The pleadings of the parties gave rise to the following issues:-

(1) Whether plaintiff has acquired the right of easement through prescription and entitled to irrigate the suit-land through the well in dispute ? OPP

(2) Whether plaintiff is entitled for the injunction prayed for? OPP

(3) Whether plaintiff is the owner in possession of the suit land ? OPP

(4) Whether the suit is within time ? OPP

(5) Whether suit is barred u/s 92 of the C. P C ? OPD.

(6) Relief.

Under issue No. 1, it was held that the plaintiff had not acquired a right of easement through prescription to take water from the well by means of Charas, Persian Wheel and had lost the same by installing a tubewell in the said well. Issues Nos. 2 to 5 were decided against the plaintiff. In view of reverse findings under issue Nos. 1 to 4, the suit of the plaintiff was dismissed.

In first appeal, the findings recorded under issues No. 3 and 5 were not assailed. The parties hotly contested the decision under issue No. 1.

The First Appellate Court on evidence found that the plaintiff and his predecessors have been irrigating their land by means of taking water from the disputed well since 1922-23. Tubewell was installed in the disputed well 12-13 years prior to the filing of the suit and the plaintiff had been irrigating their land by running a tubewell since then. The First Appellate Court dilated on the question whether the plaintiff had a right to receive irrigation to the disputed land by installing a tubewell in the disputed well. It answered the question in the negative on the ground that the dominant owner had to exercise his right of easement in a mode least onerous to the servient owner. In corning to this conclusion, it principally relied upon Section 23 of the Indian Easement Act (''The Act'' for short). The First Appellate Court has given a firm finding that the plaintiff and his predecessors have been receiving irrigation through the disputed well since, 1922-23. On the findings so recorded, there is no escape from conclusion that the plaintiff and his predecessors were receiving irrigation through the disputed well continuously and peacefully for more than 20 years and presumption would be that they have been using the same as a right. This presumption is strengthened where the servient owner never pleaded or proved that - user was permissive only by sufferance.

The only other question surviving for determination is whether a dominant owner can exercise his right of easement in a manner which is more onerous to the servient owner. The plaintiff and his predecessors have been receiving irrigation through the disputed well either by mode of Charas or by persian wheel and the servient owner never objected to the mode adopted by them for irrigating his land. The plaintiff installed tubewell in the disputed well for irrigating his land. The defendant led evidence to establish that the running of tubewell had caused damage to the well and water in the well bad also diminished and some-times the well also dried up. The evidence of D. W. 1 to D. W. 3 (Udham Singh, Sant Ram and Jodh Ram) was relied upon by the First Appellate Court and it came to the conclusion that the plaintiff had altered the mode of enjoyment of easement and thereby put additional burden on the servient heritage. Section 22 of the Act contained an important rule of guidance viz that a dominant owner must exercise his right of easement in a mode least onerous to the servient owner. This rule proceeds upon the ground that as easement, in restricting the ordinary right of property, imposes a burden upon the servient tenement, such burden shall be made as light as possible consistently with the proper and necessary enjoyment of the easement. The plaintiff and his predecessors have been receiving irrigation through tubewell, either through Charas or by installing a persian wheel and this mode caused no inconvenience'' to the servient. owners. The change in mode of enjoyment of easement proved onerous and they objected to the change of mode and no fault can be found with their action. The plaintiff is entitled to receive irrigation through the disputed well by adopting a mode which is less onerous to the servient owners. The plaintiff will be entitled to irrigate his land from the disputed well, but not by installing a tubewell, but either through persian wheel or any other mode, which does not cause any damage to the well or proves cumbersome to his servient owners.

For the reasons stated above, the judgment and decree of the First Appellate Court is partly modified arid it is held that the plaintiff is entitled to irrigate his land measuring 6 kanals 11 marlas .comprised'' in khasra No. 227 by means of Charas or by installing a Persian wheel or by any other mode least onerous to the servient owners, but cannot use the well for irrigating his land by adopting a mode which causes damage to the well or proves more onerous to the owners and the servient heritage. No orders as to costs.