Rajmal Rajput vs Sidhu Ram
2021 Latest Caselaw 3884 HP

                                                      REPORTABLE

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                                   .
                 ON THE 13TH DAY OF AUGUST, 2021





                                 BEFORE
                 HON'BLE MR. JUSTICE SURESHWAR THAKUR





                REGULAR SECOND APPEAL NO. 626 OF 2007

    Between:-





    RAJMAL RAJPUT
    SON OF SHRI TIKHU RAM,
    R/O OF THAKUR NIWAS PHAGLI,
    TEHSIL AND DISTRICT SHIMLA-171004
    (HP).


                                                               .....APPELLANT

    (BY MR. BHUPENDER GUPTA, SENIOR
    ADVOCATE WITH MR. JANESH GUPTA,


    ADVOCATE)

    AND




    SIDHU RAM
    SON OF SHRI MAST RAM,





    R/O HARI KOTHI, (WESTERN PORTION0
    PHAGLI,   TEHSIL    AND   DISTRICT
    SHIMLA, HIMACHAL PRADESH





                                                               .....RESPONDENT

    ( BY. Sh. Vivek Sharma, Advocate)

    RESERVED ON 9TH AUGUST, 2021

     This petition coming on for orders this day, the Court passed the following:-

                           JUDGMENT

The plaintiff/respondent herein (For short "plaintiff")

.

instituted a suit bearing No. 69/10 of 2000, before the learned Civil

Judge (Junior Division) (1) Shimla, H.P. In the afore suit, he claimed

the making of a decree for permanent prohibitory injunction against

the instance of the defendant/petitioner herein (for short

"defendant"), and, vis-à-vis, Khasra Nos. 1152/500, 1154/500,

1159/532, 533, 534, 535, 536, 539, 540, 543, 544, 545, 546, 547

and 537 kitas 14 total measuring 537.45 sq. meters for short ("the

suit khasra numbers").

2. The plaintiff's suit became decreed by the learned trial

Court. In an appeal carried thereagainst by the aggrieved defendant,

before the learned first appellate Court, the latter Court made a

verdict of dismissal, upon, the afore Civil Appeal No. 93-S/13 of

2004, and, obviously affirmed the judgment and decree as became

accorded, vis-à-vis, the plaintiff hence by the learned trial Court,

however, with a modification as becomes extracted hereinafter:-

"However, it is slightly modified, instead of granting injunction in respect to entire land of the defendant, it is hereby ordered that the defendant will not cause any obstruction to the flow of rain water arising in and falling on the plaintiff's property, and, he would remove the obstruction caused by him at Karukans 6-6 on the

boundaries of khasra No. 540 (of defendant) and khasra

.

Nos. 526 and 527 (of the plaintiff) situated in Mouza

Phagli. The shajras Ext. PW-2/A and Ex. D-13 shall form part of the decree as already ordered by the Court below.

3. When the appeal came up for admission before this Court,

it become admitted on the hereinafter extracted substantial

questions of law:-

1.

When the plaintiff-respondent claimed

right to drain, rain and sullage water and also right of

passage by prescription easement and easement of

necessity, was the suit not liable to be dismissed for

the reason that the pleadings of the plaintiff-

respondent were self contradictory and mutually

destructive?

2. Whether both the Courts below have mis-

applied the provisions of Section 7 of the Easement

Act when the right which was claimed by the plaintiff

was to be established by proving the ingredients of

Section 15 or at best Section 13 of Easement Act?

4. The suit land was acquired by the plaintiff from the previous

owner one Krishna Devi through a registered deed of conveyance

executed on 10.6.1982. The plaintiff averred that the plaintiff's

.

property is located above the defendant's property. The plaintiff

claimed decree (supra), on the ground, that owing to topographic

condition, the natural rain water does not pass through defined

channel rather passes through undefined channels on to the land of

the defendant, hence from times immemorial. Consequently, the

afore made pleadings are prima-facie in consonance with clause (i)

of illustrations to Section 7 of the Indian Easements Act, (for short

"the Act") provisions whereof are extracted hereinafter:-

"(i) The right of every owner of upper land that

water naturally rising, or falling on such land, and not passing in defined channels, shall be allowed by the

owner of adjacent lower land to run naturally thereto."

5. Moreover, it is also pleaded in the plaint, that the afore

exercise of easementary right by the plaintiff, and, appertaining to

the rain water arising and falling over the dominant heritage, being

passable, on to the land of the defendant, is exerisable, as, an

easement of necessity. Consequently, the plaintiff pleaded that the

afore easementary right accrues to him both on anvil of prescription,

as well, on anchor of necessity.

6. The baulking of exercise of the afore right of easement by

.

the defendant, upon, the servient heritage owned by defendant, was

prayed to be undone, through the learned trial Court making a

decree for permanent prohibitory injunction against the defendant,

and, vis-à-vis the suit khasra numbers.

7. The defendant filed written-statement to the plaint, and, had

denied the exercising of the afore right by the plaintiff. He denied

that any such drain passed through his property. He contended, that

the previous owner of the suit property, did not exercise, the afore

easementary right, hence it was not exercise-able by the plaintiff.

8. The learned trial Court upon the evidence adduced before

it, had decreed the plaintiff's suit. The judgment and decree as

made by the learned trial Court became affirmed by the learned first

Appellate Court, except with a modification, as, extracted (supra).

Moreover, the learned trial Court in paragraph 12 of its verdict

referred, to admission(s), as, made by DW-1 (Rajmal) in his cross-

examination, admission(s) whereof as narrated therein, and,

become extracted hereinafter:-

a). That the outhouses of defendant are located

.

over khasra No. 538 and his latrine exists over

khasra No. 539.

     b)        A pucca drain shown in photograph Ex.

     DC is in existence over khasra No. 539.





     c).       Immediately above and abutted with

this latrine in Khasra No. 539 are khasra No.

526 and 527, which are in the shape of

courtyard and these stand recorded in the

ownership and possession of plaintiff during

settlement.

d). That these khasra no. 526 and 527

which are recorded as "sehan"- courtyard lie in

front of plaintiff's building.

e). That a down pipe installed for the

discharge of roof water of plaintiff's house opens

up in front part of the building over khasra No.

526 and 527.

     f).       The defendant's witness DW-2 Virender

     Sharma     in   his   examination       in    chief      has

supported the plaintiff's case. He has stated that

.

rain water of plaintiff's land falls in front portion

of his house and from there it rolls down through

a danga situated below. This makes it clear that

through a down pipe and then spreads and

come down to khasra No. 538, 539, 540 of the

defendant.

9. Consequently, the learned trial Court made a decree

of permanent prohibitory injunction as claimed by the plaintiff, and,

against the defendant, and, vis-à-vis the suit khasra Numbers.

10. Since the plaintiff has anchored his case, upon,

clause (i) (supra) of Section 7 of the Act. Moreover, since he has

pleaded his right of exercising the claimed easementary right upon

the servient heritage, both on the basis of prescription, as well as, of

necessity. Therefore, the mandate of clause (i) occurring in Section

7 of the Act is to be read alongwith the mandate of Clause (a) to (d)

hence occurring in Section 13 of the Act, clauses whereof are

extracted hereinafter:-

13. Easements of necessity and quasi easements-

.

Where one person transfers or bequeaths immovable

property to another-

(a) if an easement in other immovable property

of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b) If such an easement is apparent and continues and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect,

the transferee or legatee shall, unless a different

intention is expressed or necessarily implied, be entitled to such easement; or

(c) If an easement in the subject of the transfer or

bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the

legal representative of the testator shall be entitled to such easement; or-

(d) If such an easement is apparent and continues and necessary for enjoying the said property

as it was enjoyed when the transfer or bequest too effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement."

11. A deepest and circumspect reading of clause (a) to

(d) of Section 13 of the Act, reveals that upon alienation or transfer

of immoveable property, the transferee becoming entitled to the

valid exercising by him, of an apparent easement, which prior

.

thereto became exercised by the transferor concerned. However,

the afore exercising, by the transferee, of an apparent and

continuous easement, and, also when the exercisings thereof is

necessary, for the completest enjoyment, of the immoveable

property concerned, is rather with an exception, in as much as no

intention to the contrary either express or implied being marshable

from the relevant records.

12. Be that as it may, even the statutory right of easement

vested in the owner of the dominant heritage, and, hence

exercisable upon the servient heritage, and, as become echoed in

clause (i) of Section 7 of the Act, hence bestowed upon the servient

owner, as the defendant, is, rather is a right that water naturally

rising or falling from his land and not passing in defined channels

being statutorily permitted for being hence allowed, by the owner of

the servient heritage, to run naturally thereto. Moreover, the

statutory words "not passing in defined channel", carried therein do

require assignment of connotation thereto. The connotation thereof,

is that no concrete or pucca drains are ever required to be occurring,

on the dominant heritage nor are required to be proven to be

existing thereon, rather the running water, as, naturally rises in the

.

servient heritage, is permitted to enter into the dominant heritage,

only in undefined channels, as, the natural flow of water would

become interrupted, through pucca drains existing on the dominant

heritage, and, would also breach the afore signification as becomes

ascribed to the statutory coinage "not passing in defined channels".

Conspicuously, the afore signification, as, is acquired by the

statutory words (supra) are of grave importance, for hence the

statutory right of easement created therethrough, in the dominant

owner, being validly exercised. However, the import, of, the

signification (supra) by both the learned Courts below is completely

misunderstood.

13. The afore signification hence acquired by the

statutory coinage (supra) becoming misunderstood by the learned

Courts below, is palpably manifest, from the learned trial Court,

making reference(s) (supra) in its verdict, importantly with respect to

admissions (supra) made by DW-1, in his cross-examination, in as

much, as, a pucca drain existing on a part of the servient heritage.

The afore admission(s) of defendant No.1, are rather personificatory

about the existence of a pucca drain, upon, a portion of servient

heritage. Therefore, this amply demonstrates that water naturally

.

rising or falling, on to the dominant heritage, was rather passing in

defined channels, whereas it, was statutorily mandated to be

passing in un-defined channels, on to the servient heritage.

Therefore, the misunderstanding by the Courts below vis-à-vis the

signification (supra), as, is made by the Court, to statutory coinage

(supra) cannot be validated by the Court.

14. Moreover all the witnesses concerned, also made

bespeakings, vis-à-vis, defined pucca channels existing on a part of,

the, servient heritage, whereon the water naturally rising or falling

from the dominant heritage hence fall into. The afore echoing cannot

strengthen the plaintiff's case, as any approbation thereto, would

breach the connotation (supra) as becomes assigned by this Court

to the statutory coinage (supra) occurring in clause (i) of Section 7 of

the Act. Therefore, the afore oral evidence was also not amenable

for it being validated nor also both the learned Courts below, could

proceed to conclude that hence the statutory mandate carried in

clause (i) of Section 7 of the Act, rather becomes accomplished nor

could they grant the espoused decree vis-à-vis the plaintiff.

15. Dehors the above, as aforestated, since the plaintiff

.

has also pleaded in the plaint, that the exercising by him, of the

pleaded right of easement, upon, the servient heritage was

continuous as well as a dire necessity, for his hence enjoying the

immoveable property concerned, and, obviously he pleaded the

acquisition of the afore right, not only on the ground of prescription

but also on the ground of necessity. Therefore, the exercising of the

afore right by his predecessor-in-interest, was required to be also

proven, from the previous owner, upon, the latter's stepping into the

witness box, and, besides from the registered deed of conveyance,

as became executed inter-se the plaintiff, and, the previous owner,

whereupon, upon, existences therein of express recitals, vis-à-vis,

the transfer, to the transferee of the pleaded easementary right, an

inference, was garnerable that right, if any, of easement, as

exercised, by the previous owner, was also exercisable after the

transfer of the servient heritage to the plaintiff/ the transferee.

16. In the afore endeavour, a reading of the cross-

examination of the plaintiff, does reveal, that it carried an admission

in the relevant sale deed, there occurs no recital of any exercising

by the alienor, of the afore right upon the dominant heritage nor also

there exists any implied or express intention, hence to the contrary.

.

Consequently, it is evident that the transferee/plaintiff hence cannot

claim the pleaded easementary right from the dominant heritage on

to the servient heritage. Moreover the predecessor-in-interest of the

plaintiff, did not step into the witness box, to testify, that he had been

exercising the afore right. The effect of the afore omission is that the

transferee, could not avail the right of easement, as, is claimed by

him, to be continuing as well as it being a necessity, as, the

exception carved in clause (b) of Section 13 of the Act, through

existence therein of words "unless a different intention is expressed

or necessarily implied" becomes enlivened, especially when they

operate, as a proviso against the general principle embodied

therein, that the transferee of the immoveable property concerned,

would avail the easementary rights, as earlier availed by his

transferor. Since reiteratedly the sale deed admittedly carries no

recitals, vis-à-vis, the transfer of the pleaded easementary right vis-

à-vis the transferee nor dehors the above nor any different "intention

to the contrary express or implied" is carried therein, and as may

have surfaced, upon the alienor concerned hence stepping into the

witness box, whereas, the alienor of the plaintiff omitting to step into

the witness box. therefore, the right of easement would not be

.

exercisable by the plaintiff, upon, the dominant heritage.

17. In view of the above, the appeal is allowed and the

Substantial questions of law are accordingly answered in favour of

the defendant and against the plaintiff. The impugned verdicts are

quashed and set aside.

    13th August, 2021                            (Sureshwar Thakur),
       (priti)                                        Judge.