ORDER
Prafulla C. Pant, J.
1. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and order dated 9-8-1977, passed by learned District Judge, Pauri Garhwal in civil appeal No. 34 of 1970, and civil appeal No. 37 of 1970, arising out of suit No. 05 of 1967.
2. Heard learned Counsel for the parties and perused the record.
3. Brief facts of the case are that a suit No. 5 of 1967, was filed by the plaintiffs/appellants against Kalyan Singh (since deceased) for demolition of the disputed construction raised by the said defendant and also for injunction and damages. Plaintiffs/appellants case is that one Shankar Lal and Jagdish Prasad were original owners of the plots in suit. A suit was filed in the year 1942 and they got the plots partitioned. Thereafter, defendant purchased a portion of the plot from the aforesaid original owners. Other portion of the plot was purchased by the plaintiffs' father-Salig Ram Tiwari. Land owned by Shankar Lal and Jagdish Prasad, which was transferred to the plaintiffs' father, consisted of plot No. 120/1, area measuring 3/16 nali, plot No. 147/1, area measuring 3/16 nali, plot No. 147/1, area measuring 6/16 nali. Plaintiffs' father got house and shops constructed over plot No. 120/1, which was constructed in the year 1963. The defendant (Kalyan Singh) had his house in plot No. 120/2 on the West of the plaintiffs' house. The defendant got this house constructed in the year 1961-62. Plot No. 147/ 1 was in fact plaintiffs' passage. It is alleged by the plaintiffs that the defendant, while making construction in plot No. 120/2, encroached over some of the plaintiffs' land in plot No. 147/1. Plaintiffs protested to the encroachment'. However, the matter was settled amicably by the parties by entering into art agreement dated 24-11-1962. The allegations of the plaintiffs is that on 10-1-1967, in their absence, defendant constructed a wall adjoining to the eastern wall of the kitchen of the plaintiffs and encroached upon the plaintiffs' land. It is further pleaded by the plaintiffs that in doing so, defendant removed the tin sheets of the plaintiffs' kitchen and dispossessed the plaintiffs from their kitchen. It was further pleaded that the passage was consequently blocked by the disputed construction. It is alleged that defendant got constructed their toilet in plot No. 146 and by doing so, they started flowing sewage through the drain of the plaintiffs in plot No. 120/1. This caused nuisance to the plaintiffs. Plaintiffs therefore, filed a suit for demolition of the room constructed by the defendant and also sought injunction against the defendant apart from the damages to the tune of Rs. 60/-.
4. The suit was contested by the defendant by filing written statement before the trial Court. It is admitted by the defendant that plot No. 120/1, and plot No. 147/1 belonged to the plaintiffs and it is pleaded that plots No. 120/2, 146 and 147/2 belonged to the defendant. It is also admitted to the defendant that in a partition suit in the year 1942-43, a raasta in plot No. 147/1 was carved out by the predecessors in title However, it was not denied by the defendant that the disputed kitchen belonged to the plaintiffs. According to the defendant, where the disputed construction stands, the land belonged to him. It is further pleaded by the defendant that plaintiffs' kitchen was not removed, and it was only defendant's construction, which was renovated. Though it is admitted to the defendant that the agreement between him and the plaintiffs was entered on 24-11-1962, but it is pleaded that plaintiffs themselves did not abide by the terms of the agreement. In fact suit No. 107 of 1943, was instituted by the defendant, against the plaintiffs predecessor in title Shankar Lal and Jagdish Prasad, who blocked the defendant's nali. The right of the defendant to flow water in the disputed nali was upheld by the Court and the suit No. 107 of 1943 was decreed. Lastly it was pleaded by the defendant that the sewage water used to flow in said nali.
5. The trial Court framed as many as nine issues on the basis of the pleadings:
1. Whether the plaintiffs are the owners of that portion of plot over which the disputed kitchen and its upper construction exists? If so whether the defendant is liable to be ejected therefrom on the ground alleged in the plaint?
2. (a) Whether the plaintiffs have exclusive right to use the disputed nali?
2(b) Whether the plaintiffs' suit in respect of the said nali is not maintainable?
3. Whether the plaintiffs are owners of plot No. 147/1 and whether any of its portion has been illegally encroached upon by the defendant? If so, its effect?
4. Whether the lower portion of the kitchen was constructed by the plaintiffs?
5. Is the suit bad for non-joinder of necessary parties?
6. Whether the defendant has not followed the terms of agreement dated 24-11-1962? If so, its effect?
7. Whether the defendant has taken away plaintiffs' tin sheet worth Rs. 60/-?
8. To what relief, if any, are the plaintiffs entitled?
9. What is the effect of the decision of suit No. 107 of 1943 inter parties in the present suit?
6. The trial Court after recording the evidence and hearing the parties, gave the finding that the land on which the disputed kitchen existed, belonged to the plaintiffs. It further held that the findings and judgment and decree of suit No. 107 of 1943, was binding on the parties. The trial Court further held that both the parties had a right to flow only rain water and the other water used in the houses through the nali in dispute. As such, the trial Court refused to grant injunction in favour of the plaintiffs. The trial Court further found that the defendant has not violated the terms of agreement dated 24-11-1962. However, it found that defendant has taken away the tin sheets of the plaintiffs' kitchen and constructed the wall in place of plaintiffs' kitchen. Accordingly the suit was decreed for demolition of the wall and also for the damages to the tune of Rs. 60/-. The trial Court gave the finding that the suit was not bad for nonjoinder of necessary parties. Aggrieved by said judgment and decree dated 18-7-1970, passed by learned Munsif, Pauri Garhwal in civil suit No. 5 of 1967, the defendant as well as the plaintiffs preferred two separate appeals i.e. civil appeal No. 34 of 1970 and civil appeal No. 37 of 1970, respectively before the learned District Judge, Pauri Garhwal. After hearing the parties, learned lower appellate Court allowed the appeal of the defendant and dismissed the appeal of the plaintiffs, as such suit filed by the plaintiffs was dismissed with costs. Hence this appeal was filed before Allahabad High Court in the year 1977, from where it has been received by transfer for its disposal under Section 35 of U.P. Reorganisation Act, 2000.
7. Since due to inadvertence, no substantial question of law was framed by the Allahabad High Court at the time of admission, as such, this Court on 21-8-2006, framed following substantial question of law in this appeal:
Whether the defendant can increase the burden on the servant heritage by flowing sewage in the drain in question which allegedly causing nuisance for the plaintiffs
8. Answer to substantial question of law : Admittedly, Shankar Lal and Jagdish Prasad were original owners of the land in dispute. It is also admitted that plaintiffs as well as the defendant purchased the land over which their houses are constructed from said original owners. It is also not disputed that there is a nali (drain) left from the time of predecessors in title of the parties to flow the rain water and the water used in the houses in the plot No. 120/1 owned by the plaintiffs. The question is whether the dominant owner (in the present case defendant) has right to flow sewage through the servient heritage. P.W. 2 Daveshwar Prasad (plaintiff) has stated that the original toilet of the defendant was on his land and its sewage used to get absorbed in the pit constructed thereunder. However, by constructing the new toilet in its place, in January 1967, by the defendant, sewage water started flowing through the drain in question. The statement of the plaintiff (P.W. 2) is supported by the statement of P.W. 3 Sukhri alias Sukhdev Prasad. D.W. 1 Kalyan Singh has stated that toilets of his house are old one and only new slabs were placed in it. It is stated that the sewage water was flowing in the disputed nali from the time of original owners Shankar Lal and Jagdish Prasad. The witness D.W. 1 Kalyan Singh further stated that he had a quarrel over the use of this nali in the year 1943, and he instituted a suit against Shankar Lal and Jagdish Prasad, which was decreed in his favour. Said statement of this witness is corroborated by D.W. 3 Bhagat Zamadar. The lower appellate Court while appreciating the evidence has found that the easementary right to flow the water through the drain was not confined to rainy water and water used in houses only but the sewage water was also flowing in the drain. The lower appellate Court has further found that the burden is increased by the defendant by raising new construction. The finding of the using the drain for flowing the sewage, also might be correct but it cannot be said that dominant owner can, Increase burden on the servient heritage to flow the sewage water, An easementary right can accrue for flowing the rain water and the water used in the houses but the same cannot be said for flowing sewage water as it would cause nuisance to the servient owner.
9. The plot No. 120/1 in which the water of the parties flows is not owned by the defendant rather it belongs to the plaintiffs. As such, the user of the drain on the part of the defendant is an easement as a dominant owner. It is settled principle of law that a dominant owner cannot increase the burden of the servient owner by using the immovable property of the later for the purpose for which the dominant owner had no right to use the other person's property. Section 9 of Indian Easements Act, 1882, provides that a servient owner may impose on the servient any easement that does not lessen the utility of the easement. However, he cannot without the consent of the dominant owner impose an easement on the servient heritage which would lessen such utility. Needless to say that the expression 'servient heritage' has been defined in Section 4 of said Act, which provides that the land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof is the dominant owner while the land on which the liability is imposed is called servient heritage and owner and occupier thereof is the servient owner.
10. The finding of fact recorded by the trial Court as to the fact that defendant raised the disputed construction over his own land and that he did not cause any damage to the kitchen of the plaintiffs cannot be disturbed by this Court, as the same are based on the evidence on record. To that extent, the trial Court's decree is rightly set aside by the lower appellate Court, granting relief in respect of demolition of the disputed construction and as to the decree of the damages to the tune of Rs. 60/-. However, the lower appellate Court has erred in law by not decreeing the suit for injunction in favour of the plaintiffs restraining the defendant from flowing sewage water through the nali in plot No. 120/1, owned by the plaintiffs. In the circumstances, this appeal is partly allowed. The impugned Judgment and order, passed by the lower appellate Court is set aside only to the extent of not decreeing the suit for injunction, as prayed In relief 'b' of the plaint. The appeal is partly allowed. Suit No. 05 of 1967, filed by the plaintiffs is decreed for injunction against the defendant/respondents, restraining them from flowing sewage water through nali in plot No. 120/1 by the plaintiffs. The suit shall remain stand dismissed in respect of other reliefs. Costs easy.