Karnataka High Court
Fakiravva W/O Nagappa Shirhatti vs Shivabasayya Siddalingayya Odusumath on 12 August, 2014
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 12 t h Day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal No.754/2004
Betw een:
Smt.F akiravva
W/o Nagappa Shirhatti
Age d 55 yrs , R/at TMC.No.3189
Purada Voni, Mulgund,
Gadag Taluk & Dist. .. Appe llant
( By S ri P.H .Gotkhindi, Advocate )
And:
1. Shivabasayya
Siddalingayya Odusumath
S/o Siddalingaiah ,
Age d 55 yrs ,
2. Smt.Dan awwa
W/o Shivabasayya Odusumath
Age d 50 yrs ,
Both are R/at TMC.No.3188,
Purada Voni, Mulgund,
Gadag Taluk & Dist. .. Re sponde nts
( By S ri Ch andrashe kar P. Patil, Advocate )
This Re gular Se cond Appe al is file d unde r Se ction
100 o f CPC against the judgme nt and de cre e date d
24.6.2004 passe d in R.A.No.118/2001 on the file of
Addl.Civil Judge (Sr.Dn.) , Gadag, allowing the appeal and
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se tting aside the judgme nt and de cre e date d 30.10.2001
passe d in O.S .No.337/99 on the file of II Addl.Civil Ju dge
(Jr.Dn .) & JMFC II Court, Gadag.
This Appe al coming on for fin al he aring this day , the
Court de live re d the following:
JUDGMENT
This appeal is by the plaintiff challenging the judgment and decree dated 24th June 2004 passed by the learned Additional Civil Judge (Sr.Dn.), Gadag, in R.A.No.18/2001.
2. The appellant-plaintiff filed a suit in O.S.No.337/1999 for easementary right by way of declaration and permanent injunction against the defendants for flow of rain and drainage water. The suit was contested by the respondents-defendants and as per the facts, the suit properties are bearing TMC No.3189, having a drainage near the western wall and the backyard of house bearing TMC.3188, situated at Mulgund village. It is the case of plaintiff that, her husband Nagappa Shirahatti purchased the house property bearing No.3189 from one Puradayya Mahadevayya Hiremath under a registered Sale Deed dated 3.12.1937 and after the demise of her husband, she continued in possession. The defendant No.1 purchased 3 the property bearing TMC No.3188 from its erstwhile owner - Halkeri family. As per the stand of the plaintiff, there was a drainage and water spouts near the western wall of the suit property and the sewage and rain water used to flow in the backyard of the property of defendants and plaintiff has no space to leave the drainage water and it was only through backyard area belonging to the defendants. As such, alleging obstruction, suit came to be filed by the plaintiff.
3. The trial Court having raised as many as six issues for consideration, decreed the suit declaring that plaintiff has easementary right of prescription to discharge the drainage water in the suit open space of defendants. As against which, defendants preferred R.A.No.118/2001 before the lower Appellate Court. The lower Appellate Court by the impugned order, dismissed the suit by setting aside the judgment and decree passed in O.S.No.337/1999. Being aggrieved by the same, the appellant-plaintiff is before this Court.
4. As per the finding of the trial Court, the evidence of PWs.2 and 3 disclose that plaintiff was discharging bathroom 4 water and rain water in the suit house backyard since 30 years. But, however stating that defendants have not examined any independent witnesses, decreed the suit. Whereas before the trial Court, defendants have relied upon the decision of the Allahabad High Court in the case of Jag Narain and another -vs- Ram Dulary and another, reported in AIR 1979 Allahabad 71, wherein referring to Section 15 of Easement Act, it is held that there is no provision of acquiring easementary right to discharge drainage water in others property. Defendants also relied upon the decision reported in AIE 1983 Allahabad 223 in the case of Prabhu Narain Singh -vs- Ram Niranjan (deceased by LRs) and others wherein it is held that no easementary right accrues to discharge dirty water from one's house over other persons land even though the same is enjoyed over a period of 20 years.
5. Of course, in the present case, on the ground that since 1937 the drainage and rain water is continuously flowing in the backyard of defendants' house, suit came to be decreed. But the lower Appellate Court having noted that bathroom water is dirty water and the trial Court has not raised an issue 5 with regard to discharge of such dirty water creating nuisance, dismissed the suit setting aside the judgment and decree passed by the trial Court.
6. Having heard the arguments of learned counsel for respective parties, the substantial question of law that arise for consideration is as to "whether plaintiff has got a right to discharge dirty/drainage water in the land of the defendants?".
7. The stand taken by the appellant-plaintiff is that since from 1937, there was flow of water in the land of defendants especially rain and drainage water, which means, easementary right has been acquired to discharge such water. It is also submitted that there was no space available to the plaintiff to leave the water, except to the backyard of house of defendants.
8. On the other hand, learned counsel for defendants by producing photograph submitted that the entire dirty water of bathroom was flowing in the backyard of defendants which is nothing but a nuisance. He further submitted that even the judgment of the Allahabad High Court relied upon by the 6 plaintiff before the trial Court is also against the creation of easementary right and accordingly, sought to contend that there is no illegality in the order passed by the lower Appellate Court. He further submitted that the reasoning given by the trial Court that it is not dirty water is erroneous.
9. On looking to the photograph and stand taken by both parties, it is noticed that there are houses belonging to the defendants as well as plaintiff. So far as acquisition of easementary right is concerned, even according to the judgment rendered by the Allahabad High Court cited supra, no easementary right accrues to discharge drainage/dirty water into others land. In the present case, the water let out by the plaintiff is not only rainy water, but it is drainage water. Of course, the defendants have allowed the plaintiff to leave drainage water throughout since 1937. But that cannot be treated as easementary right of plaintiff. It is for the plaintiff to make provision by making a pit in the area belonging to him for the purpose of drainage as done usually. But allowing the plaintiff to leave drainage/dirty water in the backyard of 7 defendant's house is nothing but a nuisance. Even that is also not allowed by custom or by recourse to law.
Accordingly, the issue raised in this appeal is answered. Appeal is dismissed. However, plaintiff/appellant is given another two months time to make a pit for the purpose of discharging drainage/bathroom and rain water.
Sd/-
Judge bk/-