EASEMENT TO DRAIN WATER
Balammal vs Muthusawami 1972-2 MLJ 427
Judgment by R.Sadasivam J of Madras High Court
The first respondent Balammal is the owner of two lands in Chinna Mavadi and Periya Mavadi. She acquired it by a settlement from Lakshmi Ammal. There is a channel running between Peria Mavadi and Chinna Mavadi lands and it irrigates both these lands.
The plaintiff Muthusami filed a suit for a declaration that he cultivates plantain crops on his lands in Peria Mavadi and he is entitled to drain off the surplus water from his lands to the first defendant’s Chinna Mavadi lands.
The trial Court came to the conclusion that the right claimed by the plaintiff is an extraordinary right which could not be a natural right and therefore dismissed the suit.
In the first Appeal, the Sub Court differing this view and held that the plaintiff is entitled to such right by virtue of Sec.13(f) of the Indian Easement Act. But also held that the plaintiff cannot claim the right as an easement of necessity and therefore the plaintiff cannot invoke clauses (a) (c) (e) of Sec.13 of the Indian Easement Act.
The point for consideration in this Second Appeal is – whether the plaintiff cannot claim the right as a natural right.
The evidence in this case shows that the lands slope from north to south and from west to east.
It is a natural right for lands lying in higher level to drain off surplus water through adjacent lands lying in a lower level.
But in this case - there is a channel in between the Periya Mavadi and Chinna Mavadi lands. There could be no question of Peria Mavadi lands having a natural right to drain off surplus water on account of its beings in a higher level than the Chinna Mavadi lands.
An extraordinary right is a right which the plaintiff claims to exercise only when he raises plantain crop on Peria Mavadi land. On such occasions, he will dig his field into trenches and drain off the excess water by putting up an earthenware pipe, underneath the Channel.
The defendants owning lands lower down, are not bound to receive the surplus water even during such plantain cultivation in Peria Mavadi.
The obligation to receive surplus water by the first defendant as owner of the Chinna Mavadi lands lower down would arise only if each of them cultivated his land with plantain crop.
Normally the owner of the servient tenant to exercise his right of easement.
The question in this appeal is whether the rights claimed by the plaintiff were in existence as mamool rights at the time of the partition between the settlor Lakshmi Ammal.
The more important question to be considered in this appeal is whether the right claimed by the plaintiff is “an apparent and continuous easement” as defined in Sec.5 of the Indian Easement Act.
Illustration (a) to Sec.5 says: that the right annexed to B’s house to receive light by the windows without obstruction by his neighbour A is a “continuous easement”.
There can be no dispute that a drain from one land to another is a continuous easement within the meaning of the word in sec.5 of the Easement Act. This is well established by a long series of English and Indian decisions and it is only necessary to refer to the decision in Parvathammal vs Lanka Sanyasi 1911-ILR 34 Mad 487 & in Gangulu vs Jagannathan 1923-45 MLJ 724 : AIR 1924 Mad 108. It was held that the existence of vent was sufficient evidence of an apparent, continuous and necessary easement under Sec.13(b) of the Easements Act.
Sec.5 of the Easement Act, a “continuous easement” is defined as one whose enjoyment is, or may be, continual, without the act of man.
The right claimed by the plaintiff in this case is a right to drain surplus water in his field during the years when he cultivates his land with plantain crop, and even according to the plaintiff, such plantain cultivation will be stopped at least once in two years by alternating it with paddy cultivation. It could not therefore be said that the right claimed by the plaintiff to drain surplus water from his land is a continuous easement.
It should be noted that the land of the plaintiff is separated from the lands of the defendant by a channel and the right claimed by the plaintiff is an artificial one, namely to drain surplus water by putting up an earthenware pipe underneath the irrigation channel during the period when he raises plantain crop in his land.
It could not be said that the right claimed by the plaintiff is an apparent easement.
The trial Judge has rightly found that the plaintiff had failed to prove that the easement claimed by the plaintiff is apparent or continuous. Therefore there is no scope for Sec.13(f) of the Indian Easement Act .
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