' This judgment shall dispose of Civil Revisions No, 181/95 and 182/95 as they arise out of the same judgment.
2. From the petitioners' side a suit was filed against the respondents on the averments that the respondents had stopped the rainy water of their house, which had been flowing towards the house of the respondents for a period of more than 20 years from the outlet shown in the plan attached with the plaint and had constructed three feet high wall with a view to stop the flow of water. On these averments permanent and mandatory injunctions were prayed for, so as to ensure the flow of the water through respondents' house. On the other hand, respondents also filed a suit against the petitioners for restraining them from flowing water from a hole forcibly made in the wall and for filling the pit which the petitioners allegedly made for storing the waste water along the wall of the respondents.
3. Both the suits were consolidated and proceedings were taken in the suit filed by the petitioners.
The following issues were framed:-- "(1) Whether the defendants Nos. 2 and 3 are unnecessary parties to the suit? OPD.
(2) Whether the site plan attached to the plaint is incorrect, if so, its effect? OPD.
(3) Whether the plaintiff has no cause of action against defendants Nos. 2 and 3? OPD.
(4) Whether any outlet exists in the wall 'Alif, Bay at point Noon since 20 years and in this way a right of easement exists for the passage of rain water in favour of the plaintiff? OPP.
(5) If Issue Nu. 4 is not proved whether the defendant No, 1 is entitled to the injunction prayed for by him in his suit titled as Gul Mawaz v. Amir Ali? OPD.
(6) If Issue No, 4 is not proved, whether the defendant No, 1 is entitled to Rs,5,000 as damages as prayed for? OPD1
(7) Whether the plaintiffs are entitled to special costs in suit titled as Gul Mawaz v. Amir Ali? OPP.
(8) Relief."
' After discussing the evidence led by the parties, the learned trial Court dismissed the suit of the present petitioners and decreed that of respondent No,
1. Petitioners filed two appeals which have also been dismissed through consolidated judgment dated 29-1-1995. Learned Additional District Judge dismissed the appeals on the following conclusion:-- "Moreover, the plaintiff Amir Ali has admitted that there is a street on the north side oi his house. So his necessity to pass rainy water from the house of the respondents is not absolute. He can easily pass his water towards south. In addition to this he can make arrangement to pass his water in the street on the north side. In this way the appellant/plaintiff has failed to prove his flow of water continuously, without interruption for more than 20 years towards the house of respondent No, 1."
4. Learned counsel for the petitioners has vehemently argued that admittedly, the house of the petitioners is situated at higher level and the natural discharge of the rainy water is towards the house of the respondents. The rainy water has always flowed through the house of the respondents for more than 20 years. This, according to the learned counsel has resulted into acquisition by prescription the right to discharge the rainy and other water of the petitioners' house through the house of the respondents. He has further argued that no doubt there exists a street towards the north of the petitioners' house but the street level is higher, with the result that water of the petitioners' house cannot pass into the street unless the level of the courtyard is raised, which will entail unnecessary expense by the petitioners.
5. After hearing the arguments addressed by the learned counsel and perusing the evidence placed on record, I am of the opinion that the conclusions arrived at by the two Courts below are unexceptionable and the suit of the petitioners has been rightly dismissed. The following facts stand admitted on the record:--
(i) The house of the petitioners is slightly at a higher level than that of the respondents.
(ii) On the northern side of the petitioners house there is a Pacca street, as admitted by Amir Ali plaintiff predecessor-in-interest of the petitioners) in his cross-examination.
(iii) There exists a room constructed by the respondents in front of the hole through which the water from the petitioners' house allegedly passed into the house of the respondents. This room of the respondents is built contiguous to the wall of the petitioners.
6. Petitioners have not brought on record any evidence to prove that the exercise of right of discharge of rainy water through the house of the respondents for more than 20 years was as of right. Therefore, it cannot be urged that the petitioners had acquired this easement right by prescription and it has become absolute. Such an easement right can be acquired by prescription only if it has been enjoyed as of right and adversely to the servient owner. Section 15 of the Easements Act is reproduced below:- "Acquisition by prescription:.---Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, ' and where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, are; ' and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption. And for twenty years are; ' the right to such access and use of light or air, support or other easement shall be absolute.
' Each of the said period of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
' Explanation 1.---Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
' Explanation II.---Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of song person other than the claimant, an unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
' Explanation III.---Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
' Explanation IV---In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
' When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words "twenty years" the words "sixty years" were substituted."
7. It may thus be seen that the necessary conditions for the acquisition of a right of easement by prescription are that it should have been enjoyed peaceably, openly, as of right, without interruption and for 20 years or 60 years if the right is claimed against the Government. In the instant case, it has not been proved that the right to pass the rainy water through the house of the respondents has been enjoyed by the petitioners as of right i,e, adversely against the respondents.
Permissive discharge of rainy water of the petitioners' house cannot be said to be as of right. It had to be shown by positive evidence that this easement right was exercised adversely against the respondents. It cannot be inferred from the mere assertion that rainy water has been flowing through the house of the respondents. Such discharge of water has to be proved to be hostile and uninterrupted for 20 years. The evidence to that effect is lacking in this case. In these circumstances, it cannot be urged that the petitioners had acquired right of easement by prescription.
8. The learned Courts below have taken correct view that in the circumstances of the present case the right of necessity does not exist either, because rainy water can easily be arranged to pass through the street contiguously situated to the house of the petitioners on its northern side. This can be done by improvising the construction, such as by raising the level of the courtyard of petitioners' house or even by making slight Constructional changes. Mere fact that in doing so petitioners will have to spend some money, will not give them a right to put premium on the property rights of the respondents. The concurrent findings of fact recorded by two Courts below that the right of necessity did not exist nor the alleged easement right was proved to have been enjoyed uninterruptedly for 20 years are not open to exceptions. Learned counsel for the petitioners was unable to point out any misreading or non-reading of the evidence, justifying interference by this Court in exercise of revisional jurisdiction under section 115, C.P.C.
9. The revision petition must be dismissed on yet another consideration. The relief under section 115, C.P.C. Is discretionary in nature. The right to hold and enjoy property by its owner is sacrosanct. This property right has been protected under the Constitution as a Fundamental Right. This right can be abridged, in accordance with law, under very exceptional cases only. No person including a neighbour can be allowed to diminish or clog the right of an owner to enjoy the user of his property.
In view of the Constitutional guarantees enshrined in Articles 23 and 24 of the Constitution, the easement rights have to be very strictly construed against the owner of the dominant property. In the instant case, if the suit of the petitioners is decreed, the result would be that the rainy water from the courtyard of the petitioners' house will pass through the respondents' house. It means that respondents will be precluded from raising any construction in their house according to their needs and wishes nor can they fully utilize their house. In other words, this will amount to putting a premium on the enjoyment of the property rights by an owner for the benefit of his neighbour. It is not a case of impossibility that the petitioners should be allowed to pass the rainy water of their courtyard through the house of the respondents. The rainy water can easily be arranged to flow into the street on the northern side of the house by incurring some expenses. The decree if granted in favour of the petitioners will cause more harm to the respondents. This cannot be allowed to happen in the exercise of discretionary jurisdiction.
' For what has been discussed above, the two revision petitions filed by the petitioners are dismissed in limine.