P L D 1962 (W (PLP)

(1) Whether the bungalow of the defendants is situated towards the south of the bungalow of the plaintiff ? (2) Whether the rain-water of the bungalow of the plaintiff passed through the bungalow of the defendants and the plaintiff has acquired a right of- easement with regard to that ? (3) Whether the defendants have stopped the flow of the rain-water of the bungalow of the plaintiff unlawfully and with out any valid reason ? (4) Relief. Issue No. 1 was decided against the plaintiff, it being held that the defendants' bungalow is to the North of hers. On issue No. 2 the trial Court found it established from the plaintiff's own evidence that the wall in dispute had not been in existence before 1942 and held that as the suit, as stated above, was only instituted on the 27th of January 1959, the plaintiff had not exercised the right in dispute for a period of 20 years without interruption, as required by section 15 of the Easements Act. The issue was accordingly decided against her. In view of the finding on issue No. 2, issue No. 3 was also decided in favour of the defendants, and the suit was dismissed with costs.

4. Against the above order of the trial Court, dated the 26th of November 1960, the plaintiff filed an appeal in the Court of the learned District Judge, Hazara. On the question of whether the case of the plaintiff fell under section 7 or section 15 of the Easements Act the Court remarked :- "The evidence has clearly proceeded to establish, and has also been admitted that the plaintiff-appellant's property Is situate on a higher level and that of the respondents is adjacent to it at a lower level, and further that both the houses are on the hill and the water descends from the hills and had a natural passage over the land of the parties before it goes to the drain. In view of the averments of the plaint and the evidence of the parties I am inclined to hold that the case of the appellant fails under section 7 of the Easements Act and not under section 15 of the Easements Act." The learned District Judge further pointed out that what is claimed by the plaintiff is that the rain-water falling on her land in the natural course should not be prevented from passing on to the land of the respondents by the construction of a wall, and that if at all a wall is constructed it should contain holes to allow a fair discharge of water. He accordingly found her entitled to the relief claimed and granted her an injunc?tion as prayed.

5. Against the above order of the learned District Judge, passed on the 11th of November 1961, the defendants have come up to this Court in second appeal.

6. It is obvious that in considering that the plaintiff was claiming a right of easement in respect of the flow of rain water through the holes in the wall erected by the defendant the learned trial Court misunderstood her case, which was in essence that she had a natural right to the discharge of rain?water from her land on to that of the defendants. Further, the existence of such a right is clearly established. Section 7 of the Easements Act (IV of 1882) defines easements as A restrictions of one or other of the rights set out in clauses (a) and (b). The latter clause refers to the right of every owner of immovable property, subject to any law for the time being in force, to enjoy without disturbance by another the natural advantages arising from its situation. One of the natural advan?tages of land situated on a higher level is that rain-water and water falling on it from other natural sources drains off on to the land below. Section 7 of the Act would only have applied if, for example, the defendants had claimed a right of easement in restriction of the above right of the plaintiff. It has been held in a number of authorities that the owner of a tenement which is situate at a higher level has a natural right to discharge or to pass on to the lower lying lands surface water which naturally rises or falls on his tenement, and that the owner of the lower land is bound to receive these natural waters from above without objection and without any com?pensation for any damage suffered by him due to their reception.

7. On the authority of Mohendra Nath Ghose v. Nabin Chandra Ghose (A I R 1920 Pat. 195) it was argued by learned counsel for the defendants-appellants that a right of easement and a natural right are distinct rights, and that where one is claimed the other does not arise. The facts of that case, however, were altogether different from those of the present. The plaintiff, who had an occupancy holding to a certain plot, claimed the right to discharge the surplus water thereof into the plots of the defen?dants through two water channels described in the plaint. He failed to establish that right, but was granted a decree by the Court of first instance, which held that although he had failed to prove a right of easement in his favour, he was entitled to relief on the ground that, as the owner of land which sloped towards the plots in possession of the defendants, he had a natural right to drain off the surplus water to those plots. It will be seen that the finding of the trial Court that the plaintiff had a natural right amounted to making out a completely new case. In the present case, on the other hand, the plaintiff clearly based her claim to relief on a natural right of drainage. The authority in question has consequently no application.

8. Lal Din v. Abdul Ghani (A I R 1927 Lah. 36) is also not in point. The plaintiff in that case had claimed an injunction against the defendants requiring them to demolish a wall built in front of his door and to allow him his former facilities for entrance by the door in question on the ground that the way in dispute had been used for thirty years until it was closed by the erection of the wall in dispute. The Courts below concur?rently held that the plaintiff had proved no right of easement in respect of the ground over which he alleged his right of passage, but granted him a decree for permission to open a fresh door at another point as an easement of necessity. It will be seen that in the above case also the plaintiff was allowed a completely fresh cause of action.

9. The remaining authorities cited by the appellant, Shankar Bhagwanji v. Laxman Bhagwanji (A I R 1938 Nag. 289) and Ayyar v. Neelamane Sankaran Embrandiri (A I R 1938 Mad. 649) also do not help him.

10. The finding of the lower appellate Court that the wall in dispute, as it previously existed, had holes through which the rain-water passed from the plaintiff land is one of fact, and is not shown to be in anyway vitiated. It is, there?fore, not open to attack in second appeal. 1 am in entire agree?ment with the learned District Judge that even if the wall only existed from 1942 onwards, this does not affect the plaintiff's nigh to the passage of rain-water, which, it is to be noted, was not interfered with by the construction of the wall as it formerly existed.

11. For the above reasons I hold that there is no force in the appeal, which is dismissed with costs. K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.