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PETITIONER: SMT. ANGURI & ORS.

       Vs.

RESPONDENT: JIWAN DASS & ANR.

DATE OF JUDGMENT30/08/1988

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SHETTY, K.J. (J)

CITATION:  1988 AIR 2024            1988 SCR  Supl. (2) 736  1988 SCC  (4) 189        JT 1988 (3)   528  1988 SCALE  (2)560

ACT:     Indian  Easements Act,  1882: Section 23-Dominant  owner entitled  to  after  mode and  place  of  enjoying  easement provided  no additional burden imposed-Held opening of  nine morries in place of three has damaged the properties.

HEADNOTE:     The respondents are the owners of two houses adjacent to each other and also to the property of the appellants.  From the roof of the appellants ’structure three morries  (narrow outlets)  opened  towards the property of  the  respondents. Subsequently,  the  appellants raised the  height  of  their existing structure and constructed two additional storeys on it.  At  the same time, the appellants  after  blocking  the three  original  morries opened nine new morries,  three  on each  floor.  The appellants also opened  new  windows.  The respondents  however  blocked these windows by  raising  the height of their walls.     The  respondents  filed suits praying  for  a  permanent injunction  restraining  the appellants from using  the  new morries  and from removing the obstruction to  the  windows. The  Sub-Judge  granted  the  injunction.  The   appellants’ appeals before the District Judge and the High Court failed.     Before this Court the appellants contended that (1) that the owner of an easement was entitled to alter the mode  and place of enjoying the easement and (2) no customary right of privacy had been pleaded or proved by the respondents.     Dismissing the appeal, it was,     HELD:  (1) Section 23 of the Indian Easement  Act,  1882 provides  that  the dominant owner may, from time  to  time, alter  the mode and place of enjoying the easement  provided that he does not thereby impose any additional burden on the servient  heritage. In this case the burden of easement  had been increased by the action of the appellants. [739E-G]     [Harvey   v.  Walters,  [1872-73]  L.R.  8   C.P.   162, distinguished.]                                                   PG NO 736                                                   PG NO 737     (2)  The  conduct  of the  defendants  in  opening  nine morries  in the place of three morries and thereby  damaging the properties of the respondents is such that no discretion

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need be exercised in their favour by allowing them to  raise the  issue for the first time that the three morries on  the first storey merely constitute a change in the mode or place of enjoyment of the easement. [740B-C; 739G-H]     (3) The appellants cannot be restrained from opening new windows,  as no customary right of privacy appears  to  have been  pleaded or proved. At the same time,  the  respondents are fully entitled to block the same and the appellants  are not entitled to remove the obstruction. [740G-H]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 532  of 1986.     From  the  Judgment  and Order dated 6.9.  1985  of  the Punjab and Haryana High Court in R.S.A. No. 1786 of 1985.     B.R. Iyengar and N.K. Agarwala for the Appellants.     Ms. Lilfy Thomas for the Respondents.     The Judgment of the Court was delivered by     KANIA,  J. The Appellants before us were the  defendants and  the  two Respondents were the plaintiffs in  the  Civil Suits Nos. 294 of 1979 and 421 of 1979 respectively, in  the court  of  the learned Sub-Judge, Palwal. Both  these  suits raised common questions of fact and law and were decided  by a common judgment.     We  shall  refer  to  the  parties  by  their   original descriptions in the suit. There is no controversy about most of the facts relevant for the  disposal of this Appeal.     The plaintiffs are the owners of two houses adjacent  to each  other and also to the property of the defendants.  The defendants  had  a structure on their own property.  On  the roof  of that structure they had made three morries  (narrow outlets  for  the  outflow of dirty  water).  These  morries opened towards the property of the plaintiffs. In an earlier suit,  the defendants had obtained an  injunction  directing the   plaintiffs not to block the flow of dirty  water  from the  said  three  morries.  The  defendants  were,  however, permitted to fix up pipe lines  of a suitable size at  their                                                   PG NO 738 own costs to receive the said  water and carry it to a  nali (drain)  towards  the East of their houses.  The  plaintiffs complied  with  the terms of the decree  granting  the  said injunction.  The  defendants then raised the height  of  the first  floor of their structure by three feet and on a  part of  the  terrace over the first floor they  constructed  two additional  storeys. In raising the height of the roof  over the  first floor, the defendants blocked the three  original morries  and opened three new morries on the roof  over  the first  floor and opened six more morries on  the  respective terraces  over  the  second  and  third  floor  in  the  new construction.  They  opened all the  morries in such  a  way that  the  outflow of water from all the  said  morries  was directed  towards  the  properties of  the  plaintiffs.  The defendants also constructed new windows which opened towards the  houses of the plaintiffs. The plaintiffs blocked  these new windows by raising the height of their respective  walls and  the defendants claimed the right to break  these  walls which  obstructed the view from their new windows. On  these facts,  the plaintiffs filed the said suits in the court  of the  learned  Sub-judge praying for a  permanent  injunction restraining  the defendants from using the said new  morries and  from opening the said windows. The  plaintiffs  claimed that  the  outflow of water from the  said  morries  damaged their  properties. During the course of hearing  the  suits,

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there  was a spot inspection by a learned Sub-Judge  in  the end of May 1979. In that inspection, it was noted that there were  no  signs of the of morries and that six  now  morries were  opened  by the defendants on the upper  storeys  newly constructed by the defendants and that six new windows  were also  constructed by the defendants on their upper  storeys. The plaintiffs claimed that by closing the old morries,  the defendants  had  lost their right of easement  to  discharge water  through their old morries and, in any event,  as  six more  morries in all were constructed in their  building  by the defendants they had increased the burden of easement  on the  properties  of the plaintiffs. The  defendants  had  no right to do this. The plaintiffs further contended that they were  entitled  to  block  the new  windows  opened  by  the defendants by raising the height of their walls and that the newly  constructed  windows  had  affected  their  right  of privacy.  The  learned Sub-Judge granted the  injunction  as prayed for by the plaintiffs. The defendants filed an appeal which  was  disposed of by the learned  Additional  District Judge  II,  Faridabad.  The learned District  Judge  in  the course  of  his judgment has pointed out that  there  is  no street  or  narrow  gali  between  the  properties  of   the plaintiffs  and  the defendants as appears to have  been  in existence  at  the  time when the earlier  suits  where  the defendants had secured an injunction as stated earlier,  was decided. He has further pointed out that the nine new                                                   PG NO 739 morries opened  by  the  defendants are causing heavy damage and  loss  to the respective houses of the  plaintiffs.  The Second Appeal preferred by the defendants to the High  Court of  Punjab and Haryana was dismissed in limine. The  present Appeal  has  been preferred by the  defendants  against  the judgment  of the High Court by Special Leave  granted  under Article 136 of the Constitution.     Mr.  Iyenger,  learned Counsel for the  Appellants,  has made  two  submissions before us. His first  contention  was that the owner of an easement was entitled to after the mode and  place of enjoying the easement as laid down in  Section 23 of the Indian Easements Act, 1882. The second  contention was  that the right of privacy cannot be established  except by  pleading  and proof of a customary right which  has  not been  done by the plaintiffs in the present case. Coming  to the   first  submission,  we  propose  to  proceed  on   the assumption that the defendants had acquired the easement  to discharge water from the original roof of his house  through the  three morries which were previously in  existence.  The defendants have, however, not merely altered the position of the  said three morries by raising the height of  his  first storey and the roof thereon but have opened six new  morries so  that  in the place of three old morries,  there  are  at present  nine morries in existence. Now, it is a  matter  of commonsense that the outflow of water from the nine  morries would be larger than the outflow of water from the three old morries  and hence, it must be held that the burden  of  the easement has been increased by the action of the defendants. Section 23 of the Indian Easements Act on which reliance was placed by Mr. Iyenger, in terms, provides that the  dominant owner  may, from time to time, alter the mode and  place  of enjoying  the  easement provided that he  does  not  thereby impose any additional burden on the servant heritage. In the present  Appeal  before  us, as  additional  burden  on  the property of the plaintiffs has been imposed by the action of the  defendants, the provisions of the said  section  cannot come to the aid of the defendants. It was then contended  by learned Counsel that, in any event, three of these  morries,

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namely,  on  the  roof of the first floor,  which  has  been raised  by three feet should be directed to be  unobstructed because  the burden of the easement could not be said to  be increased  by the same. There is no basis for granting  such relief.  The  original  three  morries  are  no  longer   in existence and out of nine morries opened by the  defendants, it  is not possible to earmark any three morries as  exactly corresponding to the old morries, It was for the dafendants, if so advised, to have taken the plea that the three ,on the roof  of the first storey merely constitute a change in  the or place of enjoyment of the easement which the defendants                                                   PG NO 740  had. The defendants have, however, not done any such  thing and hence we find that the question, as to whether the three morries on the roof of the first floor would not add to  the burden   of   easement  and  could  be  said  to   be   only corresponding  to  the  three  old  morries,  has  not  been considered  by  the  courts below. It is  not  open  to  the defendants  to raise such an issue at this stage.  Moreover, permitting  the  defendants  to take up such  a  plea  would involve  remanding  the case for further  evidence.  In  the present case, the conduct of the defendants in opening  nine morries in the place of three morries and there by  damaging the properties of the plaintiffs is such that no  discretion need be exercised in their favour. In fact, in our view, the conduct  of the defendants is such that no  interference  is called  for at their instance in an Appeal by Special  Leave granted under Article  136 of the Constitution.     Apart  from what we have stated earlier, as pointed  out by  the learned Additional District Judge in  his  judgment, when the defendants raised the height of the first floor and put  up additional construction on a part of the terrace  of the  first  floor, it was quite possible for  them  to  make arrangements  to take the water from their morries  by  pipe lines  towards the East of their house so that it  could  be discharged  in the drain or a nali on that side. Instead  of doing  this,  the  defendants have opened  nine  morries  as stated  aforesaid towards the houses of the  plaintiffs  and caused  damage  to  those houses. There  is,  therefore,  no reason why the discretionary jurisdiction under Article 136, should be exercised to help such parties     Mr. Iyenger drew our attention to the decision in  Harve v.  Walters  [1872-73]  L.R.  8  C.P.  162  and  two   other decisions.   The  ratio  of  these  decisions  are   of   no application  to the present case before us because in  these cases,  it was found that by the alteration of the  mode  or place  of enjoyment of easement, the burden on the  servient heritage was not increased whereas, as pointed out  earlier, that is not the situation in the case before us.     As  far  as the question of opening of  new  windows  is concerned,  it  is  open  to the  defendants  to  use  their property  in  any manner permitted by law;  and  hence  they cannot  be  restrained  from  opening  new  windows,  as  no customary  right of privacy appears to have been pleaded  or proved. This position is not disputed by the plaintiffs.  It is, however, equally clear that, if the defendants open  any new windows, the plaintiffs are fully entitled to block  the same  by raising the height of the walls and the  defendants are  not entitled to break or damage the said walls  or  any                                                   PG NO 741 portion thereof so as to remove the obstruction to their new windows.     In the result, the Appeal is dismissed, save and except, that  the injuction against the defendants restraining  them from  opening new  windows is vacated and is substituted  by

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an injunction restraining the defendants from breaking or in any manner damaging or interfering with any of the walls put up  by the plaintiffs or which may be put up here  after  by the  plaintiffs on their respective properties to block  the new windows opened by the defendants.     As  far  as the miscellaneous Petitions  are  concerned, there will be no order on the Contempt Petition. The interim stay  granted by this Court shall stand vacated. There  will be no order as to costs in these petitions.     The Appellants (defendants) shall Pay to the Respondents (plaintiffs) the costs of the Appeal. R.S.S.                                         Appeal dismissed.