Patna High Court
Sarab Lall Jha And Anr. vs Ucheshwar Jha And Ors. on 28 April, 1972
Equivalent citations: AIR1972PAT490, AIR 1972 PATNA 490, 1972 PATLJR 555 ILR (1972) 51 PAT 34, ILR (1972) 51 PAT 34
JUDGMENT Shambhu Prasad Singh, J.
1. This second appeal by some of the defendants arises out of a suit for a declaration that the plaintiffs and other raiyats having lands west and north-west of Plot No. 822 in village Ranga, Police Station Baunsi, in the District of Bhagalpur, have exclusive right to irrigate their lands from the water in the aforesaid plot and the defendants and other persons having lands east and north-east of Plot No. 820 have no right to take water from Plot No. 822 for irrigating their aforesaid lands, for permanent injunction against the defendants in their personal as well as representative capacity restraining them from taking any water from Plot No. 822 and for damages. The suit was instituted under Order 1, Rule 8 of the Code of Civil Procedure and the plain-tiffs sued and the defendants were sued in representative capacity.
2. Both Plot Nos. 822 and 820 are Danrs, i.e., artificial water channels. They get water from a river which runs east to west. They are situate to the southern side of that river and run towards north. Plot No. 821 separates them and is recorded as rasta. The artificial channel running in Plot No. 822 is called Ranga Danr and the other running in Plot No. 820 is called Babu Danr. According to the case of the plaintiff-respondents, Ranga Danr is the main source of irrigation of their lands lying to the west and north-west of the Danr. From a very long period they alone have been taking water from the said Danr for irrigation of their aforesaid lands. The defendants or other persons holding land to the east and north-east of Babu Danr have been getting water for irrigation of their aforesaid lands from that Danr. They have never taken water from Ranga Danr. On 22nd of August, 1960, the defendants forcibly and with dishonest motive for causing wrongful loss to the plaintiff took water from Ranga Danr for irrigating their fields lying east and north-east of Babu Danr and thus they caused damage to the plaintiffs. In spite of the protest of the plaintiffs, the defendants were threatening to cause further damage by taking water from Ranga Danr. Hence the suit
3. The defence of the defendants which is relevant for this appeal is that it is not correct to say that only persons possessing lands to the west and north-west of Ranga Danr irrigate those lands from that Danr; rather the entire village gets water from that Danr for irrigating their other lands including those which are situate east and north-east of Babu Danr. Babu Danr in Plot No. 820 was constructed by the villagers of village Siradah with the permission of the landlord for irrigating lands in their village. They further claim fiat they have been irrigating their lands lying east and north-east of Babu Danr from Ranga Danr since 40 years without any obstruction from any quarter whatsoever. They also aver that the suit is not maintainable for defects of parties and other grounds.
4. The trial Court believed the evidence led on behalf of the plaintiffs on the question of their exclusive right to irrigate their lands lying to the west and northwest of Ranga Danr and decreed the suit in respect of the reliefs for declaration and permanent injunction. It, however, disallowed the relief for damages on the ground that the plaintiffs were not able to prove any direct damages done to them on account of diversion of water of Ranga Danr by the defendants and the loss, if any, suffered by them was far fetched result of the said diversion. The appeal of the defendants has been dismissed by the Lower Appellate Court which has confirmed the findings of the Trial Court on the question of plaintiffs' exclusive right to irrigate their aforesaid lands from Ranga Danr.
5. Mr. S. K. Sarkar appearing for the appellants raised the following three points in support of their appeal:--
(i) A declaration as claimed for by the plaintiffs could not be granted against the tenants of the same landlord; the plaintiffs and defendants admittedly being tenants of the same landlord, the declaration ought not to have been granted.
(ii) The claim for damages having been disallowed, other reliefs could not be granted.
(iii) The landlord and the villagers of Siradah were necessary parties to the suit; they having not been made parties to it, the suit ought to have been dismissed.
6. Elaborating his first point Mr. Sarkar submitted that no tenant could acquire a right of easement by prescription against his landlord and, therefore, it was open to the landlord to confer rights of irrigation from artificial channels upon his Other tenants in derogation of the rights enjoyed from before. According to Mr. Sarkar, a declaration of the nature granted to the plaintiffs against the defendants would take away the right of the landlord to confer such right on the defendants in future. He contended that the declaration, therefore, virtually amounted to a declaration as against the landlord himself and could not be granted. The contention of Mr. Sarkar in abstract cannot be said to be without substance, but the plaintiffs in the present suit do not claim a right of easement by prescription. They claim a customary right of easement. A tenant is entitled to acquire such a right of easement even against his landlord. Mr. Sarkar conceded that this was the true position in law. In the circumstances, the first point urged by Mr. Sarkar does not arise for decision in the present appeal.
7. There is also no substance in the third point raised by Mr. Sarkar that the suit is bad for want of necessary parties. According to the case of the plaintiffs, the defendants trespassed on their right of irrigation. If they committed nuisance by disturbing the right of the plaintiffs, au action does lie against them. It is well established that no action for the continuance of a nuisance lies against the landlord for an act of his tenant done during the tenancy unless it is done by the landlord's authority (vide Gale on Easements, 13th Edition, page 369-70). It is neither the case of the plaintiffs nor the defendants that what the defendants did was with the authority of the landlord. It is also not the case of either side that the villagers of Siradah have got any hand in the disturbance of the right or the plaintiffs by the defendants. Thus, neither the landlord nor the villagers of Siradah are necessary parties to the suit and it cannot fail for their non-joinder.
8. I lastly come to the second point raised by Mr. Sarkar. In support of his contention Mr. Sarkar has drawn our attention to Section 35 of the Indian Easements Act which runs as follows:--
"35 Subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may he granted to restrain the disturbance of an easement--
(a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;
(b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.
It is not in dispute that though the Indian Easements Act does not apply to this State, principles of English Common Law underlying various provisions under it do apply. Mr. Sarkar urged that once there was actual disturbance of the easement, as was the case of the plaintiffs, and the relief for damages was refused, other reliefs could not be granted. Section 33 of the Indian Easements Act provides that a suit for compensation for the disturbance of the easement or of any right accessory thereto may be instituted by owner of any interest in the dominant heritage, or the occupier of such heritage, if the disturbance has actually caused substantial damage to him. In the instant case, the finding of the trial Court, which was not challenged by the plaintiffs before the lower appellate Court, is that the plaintiffs were not able to prove any direct damage done to them by the disturbance of the easement and the loss, if any, suffered by them on that account was far-fetched. Though the trial Court has not found in so many words that the actual damage caused to the plaintiffs was not substantial, as it has refused the relief for damages, I shall proceed on the assumption that the plaintiffs have not suffered any substantial damage on account of disturbance of the easement. It was submitted by Mr. Sarkar, learned counsel for the appellants, that the present case was covered by the principle underlying Clause (a) and not Clause (b) of Section 35 of the Indian Easements Act and hence, at any rate, the courts below erred in granting the relief for injunction. He contended that according to plaintiffs* own case, it was not a case of only threatened or intended disturbance of the easement but of disturbance having actually taken place and hence Clause (b) of Section 35 could not have any application here. On the other hand, it was urged by learned counsel for the respondents that where there had been actual disturbance as well as there was threat "of disturbance, as was the case of the plaintiffs in the instant case, relief for injunction could be granted even though there was no substantial damage to the plaintiffs by actual disturbance. According to him, the two clauses of Section 35 or the Indian Easements Act are not exhaustive and where there is actual disturbance of the easement but without substantial damage and at the same time threat or intention on the part of the disturber to repeat the disturbance in future, injunction to restrain the disturbance in future, injunction to restrain the disturbance of the easement may be granted. He urged that this was clear from the fact that Section 35 of the Indian Easements Act was made subject to the provisions of Sections 52 to 57 of the Specific Relief Act, 1877 (Sections 36 to 42 of Specific Relief Act, 1963). He drew our attention to Section 38 (3) (d) of the Specific Relief Act, 1963, according to which when the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, the court may grant a perpetual injunction where the injunction is necessary to prevent a multiplicity of judicial proceedings. I do not consider it necessary to decide which of the two interpretations of Section 35 of the Indian Easement Act is correct inasmuch as that section does not apply in terms.
9. According to principles of English Common Law relating to easements which have been made applicable to this part of the country by judicial decisions, in my opinion, the courts below have not erred in granting the relief for injunction. In Imperial Gas Light and Coke Co. v. Broadbent, (1859) 7 HLC 600 (612), which is a leading case on the subject, it has been held that if a plaintiff applies for an injunction in respect of a violation of a common law right and the existence of that right and of its fact is denied he must establish his right at law, but having done that, he is, except under special circumstances, entitled to injunction to prevent a recurrence of that violation. In the instant case, the plaintiffs, according to the findings of the court below, have established their legal right of easements and the fact of its disturbance. They have also alleged that the defendant, i.e., the appellants before us, are threatening to disturb the easement over again. The defendants-appellants do not say that they would not disturb the rights of the plaintiffs-respondents in future; rather they claim for themselves a right to disturb the easement enjoyed by the plaintiffs. According to the findings of the court below the defendants do not have such a right. In the circumstances, in my opinion, the plaintiffs-respondents having established their legal right of easement, are entitled of course to an injunction to prevent the recurrence of the disturbance. Even though there is threat of the disturbance in future of the plaintiffs' legal right of easement by the defendants-appellants, if prayer for injunction is refused on the ground that the damage by actual disturbance in the past was not substantial, the result will be that the plaintiffs-respondents will be forced to institute another suit when the defendants-appellants transform their illegal threat of disturbance in actual disturbance. There cannot be two opinions about the proposition that there should be endeavour by every court of law and justice to avoid multiplicity of judicial proceedings and really it is this principle which is embodied so far relief for perpetual injunction is concerned in Section 38 (3) (d) of the Specific Relief Act, 1963. For the aforesaid reasons, I think that the courts below have pot committed any error of law in granting the relief of injunction to the plaintiffs-respondents and there is no substance in the second contention of Mr. Sarkar either.
10. In the result, the appeal fails and is dismissed with costs.
Sinha, J.
11. I agree.