Mehar Singh and others vs Inder Singh and others

M.R. Sharma, J.—The plaintiff-respondents filed a suit in the Court of the learned Senior Subordinate Judge, Ambala, with the allegations that rain water and dirty water flowing out of their houses used to pass through a drain, marked as ''AB'' in the site plan Exhibit ''P-2'', passed through the land belonging to the defendants-appellants, The latter had set up a small obstruction disallowing the flow of water towards the natural drain above said which has resulted in accumulation of dirty Water in the street causing nuisance to the plaintiffs-respondents. Similarly allegations were made against respondent No. 4 regarding the construction of wall marked ''AC'' in the site plan Exhibit ''P-2'' In reply, the defendants-appellants Nos. 1 to 3 submitted as follows in paragraphs Nos. 4 and 6 of their written statement:-

Para. No. 4- Para. No. 4 is incorrectly stated. As submitted above, no place has been indicated in yellow colour in the attached plan. In any case, water has been flowing, out in the direction of its natural flow. It is denied that water has been flowing like this for the last forty years.

Para. No. 6- Para. No. 6 is incorrect. Defendants Nos. 1 to 3 did not stop the flow of any wafer. However, they made a construction in the land belonging to them but the water never used to flow towards the side of this construction.

The learned trial Court framed the following issues:-

Whether the defendants have caused obstruction to the rain water and dirty water accumulated in the site AC-DE shown yellow in the site plan by raising the walls AB, and AC in dispute?

Whether the plaint is correctly valued for purposes of court-fee and jurisdiction?

Whether the site belonging to defendant No. 4 is owned jointly by eight other persons and they are necessary parties to the suit?

Whether the plaint does not disclose any cause of action?

Whether the sate plan attached with the plaint is incorrect?

Relief.

All the issues were decided against the defendants-appellants end the suit of the plaintiff-respondent was decreed. The appeal filed by them also failed. They have come up in second appeal before me.

Along with the Memorandum of Appeal, Mr. K.L. Jagga has filed an application under Order XLI, Rule 27 of the Code of Civil Procedure, for permission to file a new plan and has also prayed that a Senior Advocate be appointed as a Commissioner to visit the spot and to make a report to this Court According to the learned counsel in the absence of this evidence it would not be possible for this Court to give an effective judgment in this case. I am of the view that the plea raised is untenable. The document now sought to be produced in evidence is a plan prepared by a private Draftsman, which is stated to be according to the conditions existing on the spot. It is not a copy of the public document or a public record. The appellants were aware of the topography of the site where their respective lands were situated and it cannot be said that they could not produce this plan earlier because of some reason beyond their control. Similarly, in view of the evidence available on the record. I do not think it would serve any useful purpose to appoint a fresh local Commissioner. The application filed by Mr. Jagga under Order XLI, Rule 27, Code of Civil Procedure, is, therefore, dismissed.

On the merits of the appeal, I may state that the learned lower Appellate Court has observed that it had been admitted by Surta defendant himself that the level of his courtyard was lower than that of the street. From this admission, the learned Court readily inferred that the natural flow of water was from the courtyard of Surta. In paragraphs 4 and 6 of the written statement of the defendants-appellants which have been set out above, it has clearly been admitted that water in the street has been flowing in the direction of its natural flow for the last forty years. It is often said that the men may lie but the circumstances do not. In the face of this important circumstantial evidence it must be held that water used to flow through the courtyard of the defendants-appellants and they have obstructed the flow by raising obstructions in an illegal manner. Two local Commissioners were appointed in this case. They are Advocates practicing at Ambala and both of them have unanimously reported that stagnant water was standing in the street and mosquitoes were breeding. This implies that because of the obstruction raised by the defendants-appellants the plaintiffs-respondents have been confronted with a permanent source of nuisance. It is also in evidence that there is no other outlet of water. The learned lower Appellate Court was right in observing that flow of water through the courtyard of defendants-appellants should be allowed as an easement of necessity.

Mr. Jagga, the learned counsel for the appellants, has submitted that there cannot be any easement in respect of an act of nuisance. In support of his submission, he has placed reliance upon Bankey Lal Vs. Kishan Lal and Another, . In that case, it was held that throwing night soil on another''s land is a wrongful act called nuisance, and no one can acquire a prescriptive right to commit nuisance on another''s land. The other case relied upon by him is Bherulal v. Mohan Singh, AIR 1966 Hat 123. (sic) that case, the use of lane as a public latrine for a long time was held not to give a right of easement. In my considered opinion, the authorities relied upon by Mr. Jagga are clearly distinguishable. The acts on the basis of which right of easement was sought to be claimed in these two cases were acts which could be regarded as mala in se, that is, acts which were inherently wrongful. The same cannot be said in case of a party trying to divert the rain water from his own house to a public street or to the adjoining land which is lying at a lower level.

No other point was raised before me.

For the reasons mentioned above, this appeal fails and is dismissed with no order as to costs.