IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 858 of 2001 (Old No. 2084 of 1988) 1. Mansha Ram Payal, S/o Sri Ratan Singh Payal 2. Anant Ram, S/o Sri Ratan, Singh Payal Both R/o 228-A, Old Dalanwala, District Dehradun …………Defendant / Appellants Versus 1. Dr. Ved Prakash (since deceased), S/o Sri Raghunath, R/o Raghunath Bhawan, 29 Sewak Ashram Road, Dehradun 1/1 Pramod Nagrath S/o Late Dr. Ved Prakash R/o 29 Sewak Ashram Road, Dehradun. …………Plaintiff /Respondent 2. Smt. Manorma Gupta, W/o Sri Jagat Narain Gupta, R/o C/o Smt. Susheela Gupta, 13 Sewak Ashram Road, Dehradun. 3. Smt. Susheela Gupta 4. Smt. Preemawati 5. Sri Dinesh 6. Rakesh 7. Smt. Lilu 8. Smt. Anju All R/o 13 Sewak Ashram Road, Dehradun. …………….Proforma Defendant/Respondents Sri J.S. Bisht, Advocate, holding brief of Sri Sharad Sharma, Senior Advocate, present for the appellants. Sri Sudhir Kumar, Advocate, holding brief of Sri J.P. Joshi, Advocate, present for the plaintiff / respondent. 2 Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 29.08.1988, passed by first appellate court (Second Additional District Judge, Dehradun), in Civil Appeal No. 45 of 1984, whereby said court has reversed the judgment and decree dated 04.12.1984, passed by the trial court (Munsif-III, Dehradun), in Suit No. 145 of 1983, and decreed the plaintiff’s suit. (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Brief facts giving rise to this appeal are that plaintiff / respondents No. 1 instituted Suit No. 145 of 1983, before the trial court, seeking permanent injunction against the defendants, not to interfere plaintiff’s user over the land shown by letters E, A, D, C, B, F in the plaint map, as pathway. It is pleaded by the plaintiff that his (plaintiff’s) house is situated in Sewak Ashram Road, Dehradun. On the south of plaintiff’s house there is 19 ft. wide land, used as pathway. It is further pleaded that plaintiff has laid his sewer line over the disputed land. Said land is being used by the plaintiff and his tenants since 1960, peacefully, openly and without interruption. It is alleged by the plaintiff that defendants want to close the disputed land by raising constructions over it. On this cause of action, the suit was instituted. 3 (4) Defendant No. 1 filed his written statement but later did not contest the suit and suit proceeded ex parte against him. Defendants No. 2 and 4 filed their written statements stating that they have no concern with the disputed land and pleaded that they are impleaded as unnecessary party. It was only defendant No. 3 Mansha Ram Payal who contested the suit before the trial court and filed his written statement stating that though the plaintiff is owner of house known as Raghunath Bhawan, 29 Sewak Ashram Road, Dehradun, but the land adjoining to it on southern side is not a Rasta land, as alleged by the plaintiff. It is stated that the contesting defendant No. 3 purchased the land through registered sale deed dated 13.06.1983, executed by Smt. Manorma Gupta (Defendant No. 1). Defendant No. 1 had purchased it earlier from the original owner Khairati Lal Bali through registered sale deed dated 18.09.1957. It is pleaded by the contesting defendant that the land is in possession of the contesting defendant as an owner and he has every right to construct the boundary wall. It is denied that the plaintiff has acquired any easementary right to use the disputed land as pathway, as alleged by him. (5) On the basis of the pleadings of the parties following issues were framed by the trial court:- (i) Whether defendant No. 2 is unnecessary party in the suit, as alleged in the written statement? 4 (ii) Whether plaintiff has easementary right over the disputed passage shown by letters E, A, D, C, B, F in the plaint map? (iii) Whether there exists any passage on the spot as shown by letters E, A, D, C, B, F in the plaint map? (iv) To what relief, if any, the plaintiff is entitled? The trial court after recording evidence and hearing the parties found that it is not proved on the record that the plaintiff had been using the disputed land as Rasta land for more than 20 years peacefully and openly as required under Section 15 of Indian Easements Act, 1882, and dismissed the suit. Aggrieved by said judgment and decree dated 04.12.1984, passed by the trial court (Munsif-III, Dehradun), Civil Appeal No. 45 of 1984 was filed by the plaintiff / respondent No. 1. Learned Second Additional District Judge, Dehradun, who heard said appeal, allowed it and decreed the suit of the plaintiff. Hence this second appeal was filed by the defendants No. 3 and 4 before Allahabad High Court on 14.10.1988, where it was admitted on following question of law:- Whether the easementary right accrues to the plaintiff to discharge 5 the dirty water (sewage) of his house on other person’s land? The appeal is received by transfer under Section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. (6) Admittedly, the plaintiff is owner of Raghunath Bhawan, 29 Sewak Ashram Road, Dehradun. From the pleadings as contained in the plaint it is clear that plaintiff has pleaded that he and his tenants were using the land adjoining to said house on southern side as Rasta land since 1960, peacefully, openly and without interruption and laid sewer line in it, as such the plaintiff’s have matured their right of easement by way of prescription. (7) Before further discussions, this Court thinks it just and proper to mention that Section 15 of the Indian Easements Act, 1882, provides as to how right of easement can be acquired by way of prescription. It provides that right of way or any other easement can be acquired by way of prescription provided the land of the servient owner has been used peaceably, openly, as of right, without interruption, for 20 years, by the dominant owner. (8) The perusal of the plaint and statement of P.W.1 Ved Prakash shows that the plaintiff has very cleverly pleaded easementary right for passage and simultaneously stated that he has laid sewer line in the disputed land of the defendants. Using a land as 6 Rasta land openly, peacefully and without interruption as of right for 20 years can be acquired by way of prescription but under the garb of such pleadings laying sewer line in the land of another person cannot be allowed. In Bankey Lal Vs. Kishan Lal and another 1967 Allahabad Law Journal page 107, it has been held that prescriptive right to commit nuisance on another man’s land cannot be acquired as easement. In said case it has been held that throwing night soil on another man’s land amounts to causing nuisance and no easementary right can be acquired on the land of another person of this nature. In Prabhu Narain Singh Vs. Ram Niranjan and others AIR 1983 Allahabad 223, it has been held that flowing dirty water over another man’s land cannot be allowed as of right by way of easement. It cannot be equated with easementary right to flow water with that of servient owner. Had it been a simple case acquiring right of passage, this Court could have refused to interfere with the finding of fact recorded by the first appellate court, though non-concurrent. But the first appellate court has committed grave error of law by decreeing the suit for use of the disputed land by the plaintiff after discussing that the plaintiff had laid the sewer line over the disputed land. No easementary right accrues to the plaintiff to lay sewer line on the land of another person and discharge sewer water through it. No permanent construction made by the plaintiff over the land of another person can be indirectly declared lawful under the garb of easementary right of passage. The substantial 7 question of law stands answered accordingly in favour of the defendants / appellants. (9) For the reasons as discussed above, this Court is of the view that the impugned judgment and decree passed by the first appellate court is erroneous in law and liable to be set aside. Accordingly, the appeal is allowed. The impugned judgment and decree dated 29.08.1988, passed by Second Additional District Judge, Dehradun, in Civil Appeal No. 45 of 1984, is set aside, and judgment and decree dated 04.12.1984, passed by the trial court in Suit No. 145 of 1983, is restored. However, costs easy. (Prafulla C. Pant, J.) 28.07.2009 NS