IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 1607 of 2001 Smt. Maheshwari Shah & others … Appellants Vs Smt. Asha Shah & others … Respondents Sri M.C. Pande, learned counsel for the appellants. Sri Alok Singh, learned Senior Advocate assisted by Sri D. Bhartwal, learned counsel for the respondents UDated: October 1, 2008 UHon’ble B.C. Kandpal, J. This second appeal under Section 100 of C.P.C. has been filed by the appellants against the judgment and decree dated 05.07.1999 passed by Special Judge (C.B.I./Additional District Judge), Nainital in Civil Appeal No. 69 of 1988, Sri Shanker Lal Shah Vs Sri Vinod Kumar Shah & others, arising out of judgment and decree dated 20.08.1988, passed by Munsif, Nainital in Civil Suit No. 15 of 1982, Shankar Lal Shah Vs Vinod Kumar Shah. 2. Brief facts of the case are that the father of the appellants filed a suit before the Munsif, Nainital for perpetual mandatory injunction against the respondents/defendants. According to the plaint, the plaintiff/appellant was the owner of Prashant Hotel along with land and houses adjacent to the Hotel upto the vacant land of Sarita Bhawan. In its eastern side Nainital-Almora pedestrian road, western side Sarita Bhawan and Moti lodge, northern side Meghdoot Hotel and in the south Hotel Punjab are situated and the said land comes under the control of Nagar Palika, Nainital. The respondent No. 1 and 2 are the real brother and respondent No. 3 was their mother and the owner of the Sarita Bhawan. The plaintiff has been using the drain 2 (nala) which was constructed by the Nagar Palika, Nainital, 80 years prior and the rain water passes through that Nala. This Nala passes through the properties of respondent Nos. 1 to 3 and the water fell into the lake. The plaintiff also pleaded that he has been using the said Nala for the last 20 years with the knowledge of the defendants and he has perfected the easementary right for using the said Nala. The further allegation of the plaintiff is that the defendant/respondent Nos. 1 to 3 blocked the said drain by raising a wall and pillar and obstructed the flow of rainwater thereby violated the Municipal Law and byelaws. It has further pleaded that due to that construction the water seepage shall collectively and separately loosen the earth which has supported the property of the plaintiffs/appellants for more than 50 years and it is dangerous to the life of other persons residing adjacent in the said vicinity. 3. The defendant Nos. 1 and 3 filed their joint written statement before the trial court alleging therein that no such Nala was in existence for the last 80 years on the property in dispute, which was maintained by the Municipal Board, Nainital. It has further pleaded that the main building of defendants known as ‘Sarita Bhawan’ is constructed on a plot measuring 50 feet X 50 feet and the vacant plot measuring 40 feet X 50 feet is situated along with the back wall of the main building ‘Sarita Bhawan’. The defendants also contended that the building of Prashant Hotel is a recent construction and is at a distance of about 150 feet from the buildings of the defendant Nos. 1 and 3 and the height of the building is 25 feet. It has also alleged that the plaintiff intends to pass the dirty water from the property of the defendants/respondents. The plaintiff constructed a 3 dinning hall after cutting the hill-side and that construction has not caused any damage to Prashant Hotel but the plaintiff falsely apprehends damage to Hotel Prashant by raising a wall by the defendants at a distance of about 150 feet from Hotel Prashant. The defendants have further pleaded that they have taken loan from U.P.F.C. for the conversion of Sarita Bhawan into a Hotel and the work is in progress and due to this rivalry, the plaintiff filed the suit before the Munsif, Nainital. In case, if no Nala for letting out the rain water on the hill-side is constructed, the whole rain water will collect at the back side of the main building of Sarita Bhawan which shall certainly cause danger to the building of the defendants and keeping in view this fact, it is essential that rain water on the hill side be canalized by way of Nala, which may lead to the P.W.D. Nala in front of Sarita Bhawan. The defendants/respondents are constructing the stream as per orders of the Municipal Board and other authorities for their own purpose. They have started constructing wall behind the in order to protect the main building. Therefore, they alleged that the suit for mandatory injunction over their property is not maintainable. 4. The opposite party No. 4, Municipal Board, Nainital also contested the suit by filing the written statement before the trial court and alleged that the plaintiff is the owner of Hotel Prashant along with appurtenant land and house which extends to the vacant land adjacent to the Sarita Bhawan. The Municipal Board also admitted this fact that defendant No.3 is the owner of the Sarita Bhawan. It further alleged that the rainwater flows from Prashant Hotel, passes through the back of the Sarita Bhawan and goes into P.W.D. drain and ultimately goes into the lake. It has also stated that 4 the dispute is between the two private parties. The Municipal Board, Nainital cannot interfere in their private affairs. So far as the violation of byelaws is concerned, it is the duty of the board to take legal action against those who violated the laws. 5. After hearing learned counsel for the parties and perusing the entire material available on record, the trial court framed as many as 10 issues. Thereafter parties led evidence before the trial court in support of their case. 6. The learned Munsif, on the basis of the evidence available on record, dismissed the suit filed by the plaintiff/appellants. However, the trial court directed the defendants to raise construction in accordance with the Municipal rules. 7. Feeling aggrieved by the aforesaid judgment and order, the plaintiff/appellants preferred an appeal before the Special Jude (C.B.I./Additional District Judge), Nainital which was also dismissed vide judgment and order dated 05.07.1999. 8. Now against the judgment and order, passed by lower appellate court, the plaintiff/appellants preferred this second appeal before the Allahabad High Court which has been transferred to this Court, after creation of separate State. 9. This Court has admitted this second appeal on the following substantial question of law:- “Whether flow of rainwater from higher to lower level is a right of necessity u/s 13 of 5 Easement Act and the lower appellate court failed in appreciating the same?.” 10. Heard Sri M.C. Pande, learned counsel for the appellants, Sri Alok Singh, learned Senior Advocate assisted by Sri D. Bhartwal, learned counsel for the respondents and perused the record. 11- Learned counsel for the appellants has submitted before me that the Prashant Hotel was constructed in the year 1958 and since then rain water flows from the land adjacent to Sarita Bhawan from higher level to lower level and this right is continuously being enjoyed peaceably as an easement without interruption for more than 20 years, and the courts below have fallen in error in not accepting the case of the plaintiffs/appellants. He also contended that the flow of rain water from higher level to lower level is easement of necessity and courts below have committed error of law in not considering the same. Learned counsel also submitted that the defendants/respondents are raising the construction against Municipal Rules and the blockade created by the defendants/respondents should be removed. Learned counsel also submitted that the lower appellate court while allowing the amendment put a condition that additional evidence in support of the amended paras shall not be taken due to which the evidence at that stage could not be adduced and the additional evidence may be taken on record under the provision of Order 41 Rule 27 C.P.C. 12- The learned counsel for the defendants/respondents has opposed the above submission of the learned counsel for the plaintiffs/appellants and submitted that the water of 6 Prashant Hotel used to flow along with the Nala of Sufalk Hall and the dirty water of kitchen, latrine, bathroom etc goes in the backside of Uniyal Lodge through a sewer-line . There exist no absolute necessity of easement. The learned counsel in support of his submission has cited before me the case of Hero Vinoth Vs. Seshammal, reported in (2006) 5 Supreme Court Cases 545. 13- The case of the plaintiffs/appellants is that Prashant Hotel was constructed in the year 1958 and they have been using the drain which was constructed by the Nagar Palika, Nainital 80 years prior and the rainy water passes through that Nala, which runs through the properties of defendants/ respondents and thereafter the water fell in the lake but the defendants/ respondents have blocked the said drawn by raising a wall and pillar. The plaintiffs have claimed the easementary right and alleged that they have been using the said drain for more than 20 years without interruption, in the knowledge of the defendants. 14- The defendants/respondents also filed counter claim and alleged that Prashant Hotel is a recent construction and is at a distance of about 150 feet from their building. They are conversing the building in to Sarita Bhawan and are canalizing the rain water by constructing Nala, the plaintiffs have no right to flow the dirty water and rain water on their drain. The further assertion of the defendants/respondents is that the flow of water coming from Prashant Hotel and Safalk Hall is towards the southern side which accumulates in the P.W.D. drain behind the Safalk Hall. They also contended that there exist no drain constructed by P.W.D. or Nagar Palika over their property. 7 15- Now it is to be seen as to whether the plaintiffs/appellants have acquired a right of necessity u/s 13 of the Easement Act or not?. The plaintiffs/appellants have not adduced any reliable evidence in support of their case of perfecting easementary right over the property of the defendants/respondents so as to flow the water of their Hotel Prashant. It has come in evidence that the water did not flow continuously on the drain passing through the property of defendants and only rain water flows on the said drain. It is not the case of Nagar Palika that drain has been constructed by it at the spot. Had there been a drain constructed by P.W.D. or the Nagar Palika, then the blockade if any created by the defendants/respondents should have been removed and action should have been taken against them. The Nagar Palika has asserted that it is a dispute between private parties. The defendants have alleged that they are raising the protection wall behind their building and constructing the drain in order to canalize the rain water coming from the higher level to their property. The courts below after scrutinizing the evidence on record has recorded a finding that the dirty water of both room, kitchen and latrine of the Prashant Hotel and Safalk Hall passes through the sewer line which does not pass through the property of the defendants/respondents and only the rain water falls in the property of the defendants/respondents. It further alleged that the rainwater flows from Prashant Hotel, passes through the back of the Sarita Bhawan and goes into P.W.D. drain and ultimately goes into the lake. The Advocate Commissioner in his report has mentioned that the P.W.D. Nala is about one foot higher than that the drain behind the Safalk Hall. He also alleged that only rain water falls on the property of the defendants from higher 8 level and at the time of his inspection there was not water passing through the drain. Therefore, it has not been established that the drain through which the higher level rain water flow through the property of the defendants is a drain constructed by P.W.D. or Nagar Palika, but one thing is clear that the higher level rain water will always flow downwards. At the same time the same may be canalize so as to reach to the P.W.D. Nala, so that damage may not be caused to the property of the defendants. Learned counsel for the appellants has cited before me the case of K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council Udipi and others, reported in AIR 1974 Supreme Court 2177. I have gone through the judgment cited before me and I am of the view that the same is not going to help the appellants in any manner. 16- Therefore, after considering the entire evidence on record, it is quite clear that the dirty water of kitchen, bath room and latrine coming from the Prashant Hotel and Safalk Hall passes through the sewer line and only rain water passes through the drain running from the property of the defendants/respondents; the defendants/respondents have alleged that in order to protect their building they are constructing the backside protection wall and are also constructing the drain so as to canalize the rain water coming from the higher level to the P.W.D. Nala, and the plaintiffs/appellants have not continuously been using the drain over the property of the defendants to flow their water. In my view, the courts below have rightly concluded that the plaintiffs/appellants have not been able to prove their easementary right over the property of the defendants/respondents and the decree for permanent mandatory injunction cannot be granted in their favour. 9 However, the trial court has directed the defendants/respondents to raise the construction in accordance with the Municipal rules. I do not find any infirmity and illegality in the finding recorded by the courts below. 17- So far as admitting the additional evidence on behalf of plaintiffs/appellants on record is concerned, the learned counsel for the appellants wants to file certified copy of sale deed but the same has no relevance, as it is admitted case of the parties that the plaintiffs/appellants have their property at the spot and the rain water from higher level comes to the property of the defendants/respondents. It is also not the case of the plaintiffs that the dirty water of their Hotel passes through the drain over the property of the defendants. The learned counsel for the appellants on the aforesaid point has cited before me the decisions of Jaipur Development Authority Vs. Smt. Kailashwati Devi, reported in 1997 AIR SCW 3301 and Mahavir Singh and others Vs. Naresh Chandra and others, reported in 2000 AIR SCW 2004. After perusing the above judgments cited before me I am of the view that the present judgments do not extend any help to the appellants in the facts and circumstances of the present case. 18- I have also gone through the ruling cited by learned counsel for the defendants/respondent in support of his submission on the point of easement of necessity, in the case of Hero Vinoth Vs. Seshammal, (supra). The Hon’ble Apex Court in paragraph 29 of the judgment, has observed as under:- “ An easement by grant does not get extinguished under Section 41 of the Act which relates to an 10 easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.” 19- As stated in the earlier part of the judgment that the plaintiffs/appellants have failed to establish the easementary right to flow the water through the property of the defendants/respondents; only the rain water falls in the property of the defendants and the defendants are constructing the drain to canalize the rain water coming from higher level and the trial court, while dismissing the suit, has directed the defendants to raise the construction in accordance with the Municipal rules, there exists no absolute necessity. The facts of the above cited case are fully applicable to the facts of the instant case. Both the courts below have recorded concurrent finding of fact on the factual aspect of the case and I do not find any infirmity in it and warrant no interference. 11 20- For the discussion made above, the substantial question of law framed in this appeal is decided against the plaintiffs/appellants. 21- The appeal fails and is liable to be dismissed. 22- Accordingly the appeal is dismissed. The impugned judgments and orders passed by both the courts below are hereby confirmed. 23- The interim stay, if any, stands vacated. (B.C. Kandpal, J.) ISB