SMT. ANGURI & ORSversusJIWAN DASS & ANR.

                           SMT. ANGURI & ORS.
A



                                                                                     I
                                   v.
                           JIWAN DASS & ANR.

                              AUGUST 30, 1988

B        [M.H. KANIA AND K. JAGANNATHA SHETTY, JJ.]

           Indian Easements Act, 1882: Section 23-Dominant owner
    entitled to alter mode and place of enjoying easement provided no addi·
    tional burden imposed-Held opening of nine marries in place of three
    has damaged the properties.
c          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
D   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 tiled suits praying for a permanent injunction
    restraining the appellants from using the new morries and from remov-
E   ing the obstruction to the windows. The Sub-Judge granted the injunc-
    tion. The appellants' appeals before the District ·Judge and the High
    Court failed.

         Before this Court the appellants contended that (I) that the owner of
    an easement was entitled to alter the mode and place of enjoying the
F   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
G   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]

H         [Harvey v. Walters, [1872-73] L.R. 8 C.P. 162, distinguished.]
                                       736
                     SMT. ANGURI v. JIWAN DASS (KANIA, J.]                  737

           (2) The condnct of the defendants in opening nine morries In the
     place of three morries and thereby damaging the properties of the             A
     respondents is such that no discretion need be exercise<!. in their favo11r
     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. [7408-C; 739G-HJ
                                                                                   B
           (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]

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 532                      c
     of 1986.

         From the Judgment and Order dated 6.9.1985 of the Punja\l and
     Haryana High Court in R.S.A. No. 1786 of 1985,
                                                                                   D
           B.R. Iyengar and N.K. Agarwala for the Appellants.

           Ms. Lilly Thomas for the Responclents.

           The Judgment of the Court was delivered by
                                                                                   E
            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 leamed Sub-
     Judge, Palwal. Both these suits raised common questions of fact. and
     ia,w and were decided by a common judgmeot.
                                                                                   F
           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 G
     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 marries opened towards the property of the plaintiffs. In an
     earlier suit, tile defendants had obtained an injunction clirecti.J1g 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 H
    738         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

    of a suitable size at their own costs to receive the said water and carry
A
    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
B   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 floors 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
c   houses of the plaintiffs. The plaintiffs blocked these new windows by
    raising the height of their respective walls and the defendants claimed
    the nght 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
D   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, 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 oi<l marries and that six n~'.l.' marries were
E   opened by the defendants on the upper storeys newly constructeJ hy
    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 marries and, in any event, as six
    more morries in all were constructed in their building by the defen-
F   dants 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 plain-
G   tiffs. 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 suit, where the defendants had secured an injunction as stated
H   earlier, was decided. He has further pointed out that the nine new
               SMT. ANGURI v. JIWAN DASS (KANIA, J.]                 739

morries opened by the defendants are causing heavy damage and Joss          A
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.
                                                                            B
       Mr. Iyenger, learned Counsel for the Appellants, has made two
submissions before us. His first contention was tliat the owner of an
easement was entitled to alter 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         C
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 previ-
ously in existence. The defendants have, however, not merely altered
the position of the said three morries by raising the height of his first   D
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.         E
Section 23 of the Indian Easements Act on which reliance was placed
by Mr. I yenger, in terms, provides that the dominant owner may, from
time to time, alter the mode and place of enjoying the easement pro-
vided that he does not thereby impose any additional burden on the
servient heritage. In the present Appeal before us, as additional
burden on the property of the plaintiffs has been imposed by the action     F
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, 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 reliet        G
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, 1t was for
the defendants, if so advised, to have taken the plea that the three
morries on the roof of the first storey merely constitute a change in the
mode or place of enjoyment of the easement which the defendants             H
     740         SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

A had. The defendants have, however, not done any such thing and
    hence we find that the question, as to whether the three marries 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 marries, 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
B the defendants to take up such a plea would involve remanding the case
  , for further evidence. In the present case, the conduct of the defen-
    dants in opening nine marries in the place of three monies 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
C 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 defen-
     dants raised the height of the first floor and put up additional construe-
!?   tion 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
E.   reason why the discretionary jurisdiction under Article 136 should be
     exercised to help such parties.

           Mr. lyenger drew our attention to the decision in Harvey 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
F    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
G    is open to the defendants to use their property in any manner permit-
     ted 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
H    of their walls and the defendants are not entitled to break or damage
               SMT. ANGURI v. JIWAN DASS [KANIA, J.)                 74~

  the said walls or any portion thereof so as to remove the obstruction to A
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 an injunction restraining the
                                                                         B
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
hereafter by the plaintiffs on their respective properties to block the·
new windows opened by the defendants.                    ·

       As far as the miscellaneous Petitions are concerped, there will be
no order on the Contempt Petition. The interim stay granted by this          c
Court shall stand Vacated. There will be no order as ·to costs in these
Petitions·.

      The Appellants (defendants) shall p"ay to the Respdndent-s
(plaintiffs) the costs of the Appeal.
                                                                             D
R.S.S.                                               . Appeal dismissedc ·