Himachal Pradesh High Court
Sita Devi & Ors vs Bimla Devi & Ors on 10 August, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 239 of 2008
Reserved on: 09.08.2016.
Decided on:10.08.2016.
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Sita Devi & ors. ......Appellants.
Versus
Bimla Devi & ors. .......Respondents.
Coram
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr. Sanjeev Kuthiala, and Mr. Manoj Bagga, Advocates.
For the respondents: rt Mr. Rahul Verma, Advocate, vice counsel for respondents
No. 1 (a) to 1(c).
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge (Presiding Officer, Fast Track Court), Una, H.P. dated 4.2.2008, passed in Civil Appeal No. 147/2K, RBT 125/04/2K.
2. Key facts, necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of respondents-
plaintiffs, namely, Garib Dass, Mulkh Raj and Tirath Ram (hereinafter referred to as the plaintiffs) filed a suit for permanent injunction restraining appellants-defendants/proforma defendants, namely, Datta Ram, Dalip Chand, Smt. Swarni Devi, Ram Pal alias Babli, Dharam Pal alias Lovli, Neelam Devi, Sharmila Devi, Rani minor daughter of Karam Chand, Moti Lal minor son, Bahadar Lal minor, Satish Kumar minor sons of Karam Chand, all minors through Smt. Swarni Devi, their real mother (defendant No. 3), as guardian of minors, (hereinafter referred to as the ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 2 defendants) from changing and diverting the natural flow of rain water from the area of land measuring 25 kanals 14 marlas ordinary and abadi .
as detailed in the plaint, situated in Village Kungrat, Sub Tehsil Haroli, Distt. Una, H.P. either by constructing pucca bandh marked ABCD, shown in red colour in the site plan or putting any other obstructions or in any other manner whatsoever. It is averred in the plaint that the suit land is owned and possessed by the plaintiffs. The land of the plaintiffs is of situated at a higher level. The area towards east from the land of the plaintiffs, is at lower level and therefore, the rain water flows from west to rt east. It is further averred that in between the area of the plaintiffs and the area under occupation of the defendants, there is GOHRI. The area under the occupation of the defendants, lies towards east of the plaintiffs' land and the rain water of the land of the plaintiffs flows in its natural flow from west to east since time immemorial without obstruction and thus, the plaintiffs have acquired right of easement by way of prescription also. The defendants have been raising pucca Bandh marked ABCD shown in red colour in the site plan, in order to change the natural flow of rain water flowing from west to east. The defendants have no right to change the natural flow of water by constructing Bandh.
3. The suit was contested by the defendants. The defendants have admitted the existence of GOHRI and also admitted that the plaintiffs land is towards west of GOHRI. They also admitted that the natural flow of rain water of village Lalri is from west to east. According to the defendants, the fields of the plaintiffs were at higher level to the northern side and at lower level to the southern side. The natural course ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 3 of the rain water of the plaintiffs property was from north to south but about one year back, the plaintiffs removed earth from north side of their .
fields and therefore, the water of the land of the plaintiffs begin to flow through the GOHRI, ABCD and then it turns to the land of the plaintiffs in village Kungret.
4. Replication was filed. The issues were framed by the learned Sub Judge (II), Una, H.P. on 8.12.1999. He decreed the suit on of 25.10.2000. The defendants, feeling aggrieved, preferred an appeal before the learned Addl. District Judge (Presiding Officer, Fast Track Court), Una, H.P. rt It was dismissed on 4.2.2008. Hence this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial questions of law on 7.12.2009:
"1. Whether the learned courts below have misread, mis- appreciated and misconstrued the pleadings as also the oral and documentary evidence on record and on account of such mis-appreciation and misreading the findings of the learned courts below are vitiated?
2. Whether in the absence of requisite pleadings as to the acquisition of easement rights for the flow of rain water and in the absence of specific identification of the alleged path for the flow of rain water and the ingredients of existence of such rights being not proved, the claim of easement of necessity was maintainable, moreso when the pleadings and the evidence were silent about such rights being continuous and uninterrupted and established and whether such findings are sustainable?
3. Whether the relief of permanent prohibitory injunction is to be granted without any threat and refusal to the right ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 4 and title to enjoy the land being pleaded and proved by the plaintiff and whether such relief of permanent prohibitory and mandatory injunction can be granted on mere surmises .
and conjectures without pleadings and proof?
4. Whether the ingredients of Sections 12, 15 and 28 of the Indian Easement Act being not pleaded or made out in the pleadings or the right being not identified by way of site plan/revenue record, the relief of easement by way of prescription could be granted and whether such findings of contrary to the records and pleadings could be granted?"
6. Mr. Sanjeev Kuthiala, Advocate, for the appellants, on the rt basis of substantial questions of law, has vehemently argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence on record. According to him, there was no threat of enjoyment of the property by the plaintiffs. There was no proper identification of the alleged course of flow of rain water. The ingredients of Sections 12, 15 and 28 of the Indian Easements Act were not pleaded.
On the other hand, Mr. Rahul Verma, Advocate, has supported the judgments and decrees passed by the learned Courts below.
7. I have heard counsel for the parties and gone through the judgments and records of the case carefully.
8. Since all the substantial questions of law are interconnected, the same are taken up together to avoid repetition of discussion of evidence.
9. PW-1 Bishan Dass, prepared the site plan Ext. P-1. The plaintiff has appeared as PW-2. According to him, the defendants land is situated towards east of his land. His land was at higher altitude whereas ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 5 the land of the defendants was at lower level. The natural flow of water is from west to east. The rain water of his fields has been flowing through .
the defendants land, however, about 8-9 months ago, the defendants collected stones in the GOHRI which is in between the properties of the parties, and thus obstructed the natural flow of rain water and the rain water started accumulating in his fields due to which his crop was destroyed. He has denied that water flows from south to north.
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10. The statement of PW-2 has been duly corroborated by PW-3 Rattan Chand. According to him also, the natural flow of water of the suit rt land and the surrounding land is towards east from west. The land of the defendants is about 2 feet at lower level than that of the plaintiffs. The water of the land of Garib Dass flows through the lands of the defendants and passes towards east since he gained consciousness. The defendants have collected stones in between the properties of the parties and thus obstructed the flow of rain water. He has denied the suggestion in the cross-examination that plaintiff Garib Dass has extracted the stones from his fields and has thrown the same in the disputed site.
11. PW-4 Hussan Chand has also supported the version of the plaintiff. According to him also, the natural flow of the water of the land of the plaintiffs and surrounding land is from west to east and the rain water has been flowing through the defendants' land which is situated at lower level than the plaintiffs' land. He has witnessed the natural flow of water since the time of gaining consciousness.
12. DW-1 Kapil Dev has prepared the site plan Ext. D-1. He has admitted in his cross-examination that the natural flow of water of ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 6 plaintiffs' land is from west to east. He also admitted that the water of the plaintiffs' land flows through defendants' land. He admitted that the .
stones in the GOHRI in between the properties of the parties were about 1 feet higher than the level of the plaintiffs' land.
13. DW-2 Datta Ram has testified that the rain water of the plaintiffs' land never passed through his land. According to him, the plaintiffs have removed the earth from north side of their fields and put of the same towards south side of their fields and changed the flow of water of their fields. He has admitted that the slope of the fields of Garib Dass is towards east.
rt He has extracted the stones from his land and accumulated the same on the boundary abutting to the fields of the plaintiffs. He has also admitted that the stones were placed at higher level vis-à-vis the fields of the plaintiffs.
14. DW-3 Kashmir Singh deposed that the plaintiffs changed the flow of rain water of their fields by removing the earth from the northern side of their fields and put the same towards south. He has admitted that the defendants' fields are at lower level whereas the fields of the plaintiffs are at higher level. The natural flow of water is towards the east.
15. DW-4 Kishan Chand deposed that the natural flow of water of plaintiffs' land is towards south and this water never flows towards the land of Datta Ram.
16. Exts. P-2 to P-6 are the copies of resolutions of partition which prove the ownership and possession of the plaintiffs over the suit land. The copies of jamabandis Exts. P-7 and P-8 for the year 1985-86 are of rasta share-aam in village Palkowah. Ext. P-8 also proves the ownership ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 7 of the plaintiffs regarding the land situated in village Palkowah. Ext. P-9 is the copy of jamabandi of the land of the plaintiffs for the year 1989-90.
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Ext. P-10 and Ext. P-11 are copies of jamabandis for the year 1989-90 showing the land in the possession of the plaintiffs.
17. Ext. D-1 is the site plan. Ext. D-2 is the copy of jamabandi for the year 1985-86 pertaining to defendants land. Ext. D-3 is the copy of jamabandi for the year 1985-86 pertaining to rasta share-aam. Ext. D-
of 4 is the copy of jamabandi for the year 1985-86 pertaining to Kh. No. 6898, rasta share-aam. Ext. D-5 is the copy of jamabandi for the year rt 1985-86 of defendants land. Ext. D-6 is the copy of jamabandi for the year 1998-99. Ext. D-7 is the copy of missal Hakiat Bandobast Jadid sani for the year 1998-99 regarding the share-aam land owned by the Gram Panchayat.
18. It is admitted fact that the plaintiffs and defendants are owners of the adjoining fields. The fields of the plaintiffs' are at higher altitude. Ext. P-1 is the site plan prepared by PW-1 Bishan Dass. PW-2 plaintiff Garib Dass has categorically deposed that the natural flow of water was from west to east. The statement of PW-2 Garib Dass has been duly corroborated by PW-3 Rattan Chand and PW-4 Hussan Chand.
19. DW-3 Kashmir Singh has admitted that the defendants' fields are at lower level. The natural flow of water is from west to east. The plaintiffs have duly proved that the natural water flows from west to east side. According to Section 7(1) of Indian Easements Act, the rightful possessor of the land on higher level has right to discharge the surplus ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 8 rain water which falls on their land to the land situated on lower level and the owner of the land situated at lower level is bound to accept that water.
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20. Their lordships of the Hon'ble Supreme Court in the case of Patneedi Rudrayya vs. Belu Gubantla and ors., reported in AIR 1961 SC 1821, have held as under:
"13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower of appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (1) to s. 7 of the Indian Easements Act, 1882 (5 of 1882), 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 High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage (1) and a passage from the judgment in Nield v.
rt London & North Western Railway (2) in support of its conclusions. In the passage in Coulson & Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbor's property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendant's land and so the passage does not support the conclusion of the High Court. The decision in Nield's case (2) is further based on the "common enemy"
doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court For instance:
"where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course."
Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create ail impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to 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 outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.
15. The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham:
"If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an in ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 9 turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds........... "
The learned author, after a discussion of old English cases on the point, has stated .
that the common law regarded the flow of rain water along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed:
"All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading". (p. 2590).
of After discussing a number of precedents from the American State Courts he has pointed out that the common enemy doctrine is of very recent origin he has observed at p. 2591:
rt "That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated."
We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Niela's case (1) the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then Jae would not be entitled to impede the flow of the stream &long its natural course (2). We may repeat that the finding here is that, the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type. In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him. For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the subordinate judge.
The costs throughout will be borne by the defendants- respondents."
21. Defendant DW-2 Datta Ram has admitted in his cross-
examination that he has extracted the stones from his land and accumulated the same on the boundary abutting to the fields of the plaintiffs and thus obstructing the natural flow of water. The learned Courts below have correctly appreciated the oral as well as documentary evidence available on record. The plaintiffs have duly proved the ingredients of Sections 12, 15 and 28 as well as Section 7 of the Indian Easements Act. The land of the plaintiffs has been duly identified. The natural water would flow from higher to the lower level and no separate ::: Downloaded on - 15/04/2017 21:00:26 :::HCHP 10 channel is required for the same. In case the water is permitted to accumulate in the plaintiffs fields, it would destroy his crops. The .
substantial questions of law are answered accordingly.
22. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
August 10, 2016, ( Rajiv Sharma ),
(karan) Judge.
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