AI Structured Summary
Not yet generated for this judgment
Judgment
R.S. Ramanathan, J.—The Plaintiffs, who were successful in the Trial Court and unsuccessful in the First Appellate Court, are the Appellants in this Second Appeal.
The Plaintiffs filed the suit for mandatory injunction and also for permanent injunction. The case of the Plaintiffs is that one Lizziy Rethnawathy Kesari Amirtharaj, was the owner of 15 cents of property and one Chellammal Wilson purchased 8 1/2 cents from the mother of Lizzic Rethnawathy Kesari Amirtharaj, viz., Sathanam Kesari and the first Plaintiff purchased 7 cents from Lizziy Rethnawathy Kesari Amirtharaj and Santhanam Kesari. The first Plaintiff had constructed a house bearing Door No. 78-B and living in the house along with the second Plaintiff. The said Chellammal Wilson, who purchased 8 1/2 cents from the owner Lizziy Rethnawathy Kesari Amirtharaj, constructed a house and sold the same to the second Defendant. According to the Plaintiffs there is a pathway on the southern side of the Plaintiffs property and it is also situate on the eastern side of the second Defendants house and that pathway connects the Plaintiffs as well as the Defendants'' house to the Kesari street, situate on the southern side perpendicular to the pathway and the said Kesari Street, also opens into the water tank road which is situate on further South. It is the further case of the Plaintiffs that the water tank road is on the higher level than the Kesari Street. Therefore, the rainwater from the water tank road flows into the Kesari Road and thereafter, into the pathway and the rainwater that flows from the water tank road and Kesari road goes through the Defendants'' property towards west and drains into the Pipe Villai Street, which lies on the western side of the Defendants house. The Defendants suddenly put up a gate on the western side of the pathway, so as to prevent the natural water flowing from the water tank through the Kesari road and the pathway was going further down towards west and as a result of that, the water collected from the Kesari Streeet and the pathway got stagnated in the pathway and the Plaintiffs'' house is on the lower level and by reason of the gate put up by the Defendants in their property, the rain water could not flow towards the western direction and therefore, the suit was filed for mandatory injunction and also for permanent injunction.
The Defendants filed a statement stating that the property purchased by the Defendants is not a poramboke land and it is patta land and the water tank road is not on the higher level than the Kesari road and the rainwater will not be collected in the pathway from the water tank road and Kesari road and there is no outlet in the Defendants property for the water to go from the Defendants property to the eastern direction and at no point of time, water was flowing through the Defendants property and whenever water got stagnated in the pathway that will be drained in due course. The Defendants also stated in the written statement that the suit is also bad for non-joinder of parties viz., the parties who are owning the properties on the western side of the Defendants property and the Plaintiffs are not entitled to any relief.
The Trial Court on the basis of the documents and evidence and also on the basis of the report of the Commissioner held that the water tank road is on the higher level and the water flows from the water tank to the Kesari road and thereafter, through the passage and the passage is on the lower level and through the Defendants property only the water was taken towards western direction and decreed the suit.
The Defendants filed an appeal in A.S. No. 10 of 2004 on the file of the First Appellate Court against the findings of the Trial Court and the Court held that the suit is bad for mis-joinder of parties and the Plaintiffs without filing the suit for declaration regarding easementary right, they are not entitled to take water from the Defendant''s property and without impleading the owners of the property situate on the western side of the Defendants property, the right of the parties cannot be decided. Therefore, the First Appellate Court held that the suit is bad for non-joinder of parties and allowed the appeal and set aside the judgment and decree passed by the Trial Court. Aggrieved by the same, this Second Appeal is filed by the Plaintiffs.
The Second Appeal is admitted on the following substantial questions of law:
a). Whether the Lower Appellate Court failed to apply Section 7 of the Easement Act to the facts of the present case?
b). Whether the findings of the Lower Appellate Court that the suit is bad for non-joinder of parties is correct?
c) Whether the findings of the Lower Appellate Court that the suit must fail in the absence of a prayer for declaration regarding easementary right is correct?
It is contended by the learned Counsel appearing for the Appellants/Plaintiffs that the Lower Appellate Court has erred in holding that the suit was bad for non-joinder of necessary parties viz, without impleading the owners of the properties on the western side of the Defendants, the suit is not maintainable. According to the learned Counsel appearing for the Appellants the Appellants /Plaintiffs are calming right to take the natural flow of rainwater through the Defendant''s property and it is not the case of the Appellants /Plaintiffs that the owners on the western side of the Defendants'' property are objecting to the taking of water through their land and it is the Defendants, who obstructed the passage by putting up a gate. Therefore, the suit was filed only against the Defendants and as there was no obstruction raised by other owners on the western side of the pathway, there is no need to implead them and hence, the suit is not bad for non-joinder of necessary parties.
On the other hand, the learned Counsel appearing for the Respondents/Defendants submitted that admittedly the western side of the Defendants'' property is owned by different persons and if the water is allowed from the Defendants'' property as claimed by the Plaintiffs towards west and if those third parties, who are owning the properties on the western side of the Defendants'' house, prevented the water from entering into their property, the water will be stagnated in the Defendants'' property and therefore, unless those persons, who are owning the properties on the western side of the Defendants'' property are also made a parties to the suit, the water cannot be allowed to pass through the Defendant''s property. Therefore, the Lower Appellate Court has rightly held that the suit is bad for non-joinder of necessary parties. He further submitted that the western portion of the Defendants'' property is not a Government poramboke land and it is owned by the people belonging to Konarvillai, and if they objected to the water being let out into their property, the property of the Defendant''s would be damaged and therefore, without impleading those persons, the suit cannot be maintained. Hence, the suit is bad for non-joinder of necessary parties.
According to me, the findings of the Lower Appellate Court that the suit is bad for non-joinder of parties cannot be sustained, as held in the judgment reported in (1967) I M.L.J. 177 in the matter of ( K. Palaniappa Moopan and Ors. v. Angammal and Ors.) and the facts in the said judgment are almost similar to the facts of the present case and in that case also a similar plea was taken that the owners of other fields were not made as parties and therefore, the suit is not maintainable. The Learned Judge meeting out this argument held as follows:
It may be that the owners of other fields over which the channel flows are proper parties, but certainly they are not necessary parties. Their non-joinder cannot be fatal to the suit. There are several servient tenements over which the channel passes, but the Defendants alone have obstructed according to the Plaintiffs. There has been no obstruction from the State or from the owner of field S. No. 15 of the exercise of the right claimed by the Plaintiffs. I am unable to appreciate the contention that the Plaintiffs cannot have effectual relief in their absence. If any of them should interfere with the mamool flow of water or at any subsequent period, that would give a fresh cause of action to the Plaintiffs and a cause of action to the Defendants also if they are inconvenienced and injured. In my view, it would be unreasonable to compel the Plaintiffs to implead the owners of the servient lands all along the course of the channel whether they had any cause of action against them or not and even though there was no obstruction to or denial of the Plaintiffs right by these persons.
Therefore, as held by our High Court in the aforesaid judgment it would be unreasonable to compel the Plaintiffs to implead the owners of the servient land. Therefore, the Lower Court is not correct in dismissing the suit on the ground of non-joinder of necessary parties. Hence, the second substantial question of law is answered in favour of the Appellants/Plaintiffs.
It is contended by the learned Counsel appearing for the Appellants that u/s 7 of the Easements Act, (hereinafter referred to as the said ''Act'') the owner of the immovable property is entitled to enjoy the property without disturbance by another and the natural advantage arise from such situation. According to the learned Counsel for the Appellants the rainwater from the water tank road on the southern side flows into the Kesari Street, which is on lower level and from the Kesari Street, the water flows into the common passage which connects the Plaintiffs and the Defendants'' house and it was taken towards western direction from the Defendant''s property and such a natural stream cannot be prevented by the Defendant by placing an obstruction in his property and the Defendant has no right to do so
He further submitted that the right available u/s 7 of the said Act is made clear by illustration (i) to that Section and as per that illustration it is the right of every owner of upper land that water naturally rising in or falling on such land and not passing in defined channels shall be allowed by the owner of the adjacent lower land to run naturally thereto. He also submitted that as per the illustration ( i) of the said Act, the natural water coming from the water tank road through the Kesari Street shall be allowed to pass through the common pathway from the Defendant'' property and that cannot be prevented by Defendants. In support of his contention, the learned Counsel relied upon the judgments reported in Patneedi Rudrayya Vs. Velugubantla Venkayya and Others, , and AIR (1926) Mad 449 (FB) in the matter of (Sheik Hussain Sahib v. Pachipulusa Subbayya and Anr.)
On the other hand, the learned Counsel appearing for the Respondents submitted that the Appellants cannot claim any easementary right over the Defendants'' property and admittedly, both the Plaintiffs and the Defendants'' property were owned by one common owner and the Plaintiffs purchased 7 cents and the Defendants purchased 8 1/2 cents from the same person and therefore, one party cannot claim any easementary right over the property of the another. It was held by the Hon''ble Supreme Court in the judgment reported in (2001) IV S.C.C. 694 in the matter of (Saraswathi v. S. Ganapathy) and therefore, the Appellants cannot claim any easementary right over the Defendants'' property to take water through the Defendants property.
It is seen from the Commissioner''s report and the plan filed by him that the water tank road which is on the southern side is on the higher level and water from that water tank flows freely into the Kesari Street which connects the common pathway and the water tank road. It is also not is dispute that the pathway which is on the northern side of the Kesari Street is also on the lower level and therefore, water from the water tank road flows into the Kesari Street and further flows into the pathway and from the Defendants'' property, the water was let out on the western side of the Defendant''s property. Therefore, we will have to see whether the Plaintiffs can claim the right of taking the water through the Defendants property. As rightly pointed out by the learned Counsel appearing for the Appellants, those right has been dealt with u/s 7 of the Easements Act and as per the illustration (i) to Section 7 of the said Act, every owner is entitled to take the water naturally flowing through other properties. The Celebrated author Katiyar''s in his Law of Easements and Licenses in India in the 10th Edition 1984 at page 211, laid down the principle as follows:
" The natural right of drainage to discharge surface water possessed by the upper owner cannot be limited merely to the natural regulation of the water, according to the law of gravitation it includes right to collect in a body all the natural surface water which may be found on a tenement and to discharge it down, without causing more injury that it would have caused by its natural unregulated flow. The lower owner has no cause for complaint if he received without additional injury the upper water in a body instead of receiving it in its diffused natural state.
The privy Counsil in Gibbons v. Lenfestey said:
" Where two contiguous fields, one of which stands upon higher ground that the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water which falls from the superior. If the water, which would otherwise fall from the higher grounds insensibly, without hurting the inferior tenement,, should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property."
In the case of Ganesh Panigrahi v. Jura Sahu, Justice S. Acharya J., while dismissing the appeal, considered the case decided by the Privy Council and the Supreme Court. Their Lordships of the Privy Council in Gibbons v. Lenfestey, have held that where two contiguous fields one of which stands on a higher ground that the other belonging to two different person, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive water which falls form the superior.
Lord Watson in John Yourgn and Co. v. Bankier Distillery Co., says:
" The right of the upper heritor to send down and the corresponding obligation of the lower heritor to receive, natural water whether flowing in a definite channel or not, and whether upon or below the surface are incidence of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini."
In the Full Bench decision reported in (Sheik Hussain Sahib v. Pachipulusa Subbayya and another) on a review of many English cases, it has been held that if the owner of the land at the lower level raises an obstruction to the natural flow of water he will be restrained if it causes or tends to cause damage to the owner of that on the higher level. "
This principle has been upheld by the Hon''ble Supreme Court in the judgment reported in (1961) S.C. 1821 (supra) and the Hon''ble Supreme Court has also held as follows:
Where a right is based upon the illustration (i) to Section 7, the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The water on a higher ground must by operation of the force of gravity flow on to the lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlets for that water. It makes little difference that the water happens to be no merely rain water but flood water provided the flood is of the kind to which the higher and is subjected periodically. The cases pertaining to repairman lands must be distinguished from such cases. Further, the only right which a riparian owner may have is to protect himself against t extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course.
In the judgment reported in AIR (1926) Mad 449 Full Bench (supra) , the Hon''ble High Court has held as follows:
Where two contiguous fields belong to different proprietors, one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water that falls from the superior. If the water which would otherwise fall from the higher ground insensibly without hurting the inferior tenement should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it the owner of the inferior is without the positive constitution of any servitude, bound to receive that body of water on his property. The lower heritor cannot object so long as the flow whether above or below ground is due to gravitation unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbor''s property by artificial means, land three is no distinction in principle between water raised from a mine below the level of the surface of eight properly and water artificially conveyed from a distant stream: and there is no distinction in principle between water raised from a mine below the level of the surface of either property and water artificially conveyed from a distant stream. One landowner cannot by altering the condition of his land, deprive the owner of the adjoining land of the privilege of using his own as he might have done before. The distinction between rural and urban areas drawn in 29 Mad. 539 arises from the accident that illustration (a) to Section 7 of the Easements Act instances a case of land in an urban area because it wishes to sage-guard the statutory rights of urban authorities to restrict unapproved methods of dealing with land and buildings. Really there is no such distinction.
Therefore, from the passages from the Book of Easements and License by Katiyar and also as per the judgments of our Court, it has been made clear that the water on a higher ground must by operation of the force of gravity flow on to the lower ground and if the owner of the lower ground raised an obstruction to the natural flow of water, he can be restrained if it causes damage to the owner of the land on the high level. Now doubt, in the judgment reported in Saraswathi and Another Vs. S. Ganapathy and Another, , the Hon''ble Supreme Court has held that when two properties were owned by a single person and subsequently he sold those two properties to different persons, no easementary rights regarding the drainage of water could have been acquired by one owner and the person cannot claim any right over the land of another by contenting that previously the owner was allowing the rain water to drain from the roof on the other property and therefore, he also entitled to have the same facility after his purchase.
According to me, the judgment reported in Saraswathi and Another Vs. S. Ganapathy and Another, , cannot be applied to the facts of the present case on hand, as in this case, the right is claimed by the Appellants to have the rain water to be taken through the Defendants'' property and the common passage through which the rain water passes through the Defendants'' property was not owned by a common person.
In other words, in the reported judgments, the water was allowed to drain from one part of the property to the another part of the property and though the properties were owned by a single person and after the sale of each part to different person, one party cannot claim any right to drain the water on the other''s property. But in this case, the Appellants are not claiming any easementary right over the enjoyment of their property and they are only claiming right to permit the natural flow of water from the common pathway towards western side of the Defendant''s'' property. In this case, it is not in dispute that prior to the blocking of the passage by Defendants, water from the common pathway flows towards western side of the Defendant''s property, which was also lying vacant and when the Defendants blocked that passage, the suit was filed. Therefore, the facts of this case are different from the facts of the present case and therefore the judgment relied upon by the learned Counsel for the Appellants cannot be applied to this case. Therefore, having regard to the judgment of the Hon''ble Supreme Court reported in (1961) S.C. 1821 (supra) and as per the passages in the Katiyar''s Easements and Licenses, I am of the view that Section 7 of the said Act, applies to the facts of the case and as per illustration (i) to Section 7 of the said Act, the Appellants are entitled to take the water through the Defendants'' property and the first substantial question of law is answered in favour of the Appellants.
Though the Plaintiff could have applied for the relief of declaration in a suit for injunction, the Court is entitled to give the findings regarding the rights of the parties and as a matter of right, injunction can be granted only when the Court gives the finding that the Plaintiffs are entitled to prevent the Defendants from causing any obstruction or damages to the Plaintiffs property. Therefore, in a suit for injunction, the Court has to necessarily give a finding regarding the right of the Plaintiffs. Therefore, it cannot be considered that without the prayer for declaration, the suit for bare injunction is not maintainable. As stated supra, the Plaintiffs are entitled to take the water which flows naturally from the western tank street through the Defendants property and when the Plaintiffs are entitled to allow the natural water to flow through the Defendants property, they are entitled to the relief of injunction, and there is no need to pray for a declaration that they are entitled to take the water from the Defendants property. Hence, the suit is not bad for not praying for the relief of declaration and the third substantial question of law is also answered in favour of the Appellants.
Hence, the judgment and decree of the First Appellate Court is set aside and the judgment and decree of the Trial Court is restored and the Second Appeal is allowed. No costs.