Jojy George Koduvath.

Introduction

• Easement (सुखाधिकार)  is a right possessed by the owner of a land (dominant land),
  • to use the land of another (servient land),
  • for the beneficial enjoyment of the dominant land.
• By virtue of easement –
  • No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
  • No Possession is obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335)  
  • No Substantive Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).
• SECTION 4 of the Indian Easements Act defines Easements as under:
• “An easement is a right
  • which the owner or occupier of certain land possesses,
    • as such,
  • for the beneficial enjoyment of that land 
  • to do and continue to do something, or to prevent and continue to prevent something being done,
  • in or upon, or in respect of, certain other land not his own.”

Significance of Section 7, Easements Act

Section 7, Easements Act further explains legal incidents of Easement

• In the heading (Easements restrictive of certain rights) itself it is explicated that easement is only “restrictive” to certain rights; that is,
• it only ‘restricts’ exclusive (civil) right to enjoy a property by its owner (servient owner); and
• it does not confer a right to ‘exclude’ the servient owner or it ‘extinguishes’ his rights.

Section 7 Easements Act, 1882

• “Sec. 7.  Easements restrictive of certain rights:    Easements are restrictions of one or other of the following rights (namely):—
  • (a) Exclusive right to enjoy. —The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
  • (b) Rights to advantages arising from situation. —The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
•  Illustrations of the Rights above referred to –
• (a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.
• (b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.
• (c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.
• (d) The right of every owner of land to so much light and air as pass vertically thereto.
• (e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.
• Explanation.—Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
• (f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.
• (g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
• (h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.
• (i) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
• (j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.
• Explanation.—A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.  

Section 7 lays down –

• First – easement is a restriction to the civil right of exclusive enjoyment of immovable property by its owner  (Servient owner).  That is, the civil right of the servient owner, to use his property without being disturbed by anybody, is meddled by virtue of the provisions of the Easement Act.
•  Second – easements are also rights that stand against the (otherwise) civil right of owner of an immovable property not to shoulder the burden of supporting-with the natural advantages arising from its situation (to the neighbours property). 
• What is stated here is,  by virtue of the statutory provisions of the Easement Act the dominant owner (neighbour) can enjoy (i) the rights recognised by the Easements Act in the servient land and (ii) the natural advantages arising from its situation (though they may negatively affect the civil rights of the servient owner).

Two Natural Rights to Flow Water (in Sec. 7, Illustrations – h and i)

Illustration (h) reads as under:

• “(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.”

Illustration (i) reads as under:

• (i) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.

Drain Water is a “natural inherent right“, independent of easement

This natural right of draining water that naturally falls on a property (by rain or rises in the same by other means) to the adjacent lower property is a natural right inherent in property (Viswanath Mohapatra v. Bhramdhar, ILR 1966 Cal. 118). Therefore it can be said to be ‘independent of easement‘ (Yesoda v. Yusuff Haji, 1991-2 KLT 306). The Bombay High Court in Sitaram Motiram v. Keshav Rachandra, AIR 1947 Bom 4, observed that this right is strictly not an easement.

Right to Drain Water is a “Restricted Easement“

In Nadupuri Narayana v. Ijjada Narayana, AIR 2002 AP 387, it is held as under:

• “(11) The right of every owner of upper land that water naturally rising in, and not passing in defined channels is recognized by law as restricted easement. The right of every owner of the land to the natural flow of water by natural stream without interruption and without material alterations is also recognized.”

Right of natural drainage includes discharge through a particular route

Kerala High Court held in Yesoda v. Yusuff Haji, 1991-2 KLT 306, as under:

• “8. Every property owner has a natural right of drainage of surface water in the property lying at a lower level. The owner of land has the natural right not only to collect and retain within the limits of his own land surface water not flowing in a defined channel, but also a right to draw it off on to his neighbours’ lower land or put it to whatever use he pleases.
• 9. This principle applies to rain or flood waters naturally accumulating on land of higher level which must find its level by draining into the lower land. This is a natural right independent of an easement, grant or custom.
• 10. This right of an owner of a land lying on a higher level could be an easement or quasi easement right as well. Easement of drainage is the right of the owner of one land to cause the water on his land to flow in defined channel on the land of his neighbour. This is also a natural right of the owner of the higher land that the water rising in or falling on his own land, shall be allowed by his neighbour owning the lower land to run naturally thereto. The natural right mentioned above is not restricted to natural drainage of water from higher to lower land but includes discharge of it through a particular route at a specified point. This natural right is a right which can be claimed in respect of water naturally rising in, or falling on, one’s land and not passing in defined channels. The right of an upper proprietor to throw natural water on the lower land is a natural right inherent in property. The lower riparian proprietor has no right to prevent such natural flow or to throw the flow back on to the upper riparian property.”

The right to discharge water through a particular route at a specified point is considered by the Madras High Court also in in Samiappa Gounder v. Subbanna Gounder, 2017-4 LW 341, after referring Supreme Court decision in Patneedi Rudrayya v. Velugubantla Venkayya, AIR 1961 SC 1821. It held as under:

• “16. Taking note of the said observation, this Court is of the opinion that the plaintiffs have no right of easement to drain the water through “Vadikal Kavuru” as claimed in the plaint. However, when there is accumulation of excess water due to natural rain fall, the natural right of draining the water lower riparian cannot be taken away or deprived by means of artificial blockage. Therefore, whenever there is excess water, accumulated in the land of the plaintiffs, by natural means, riparian land owner shall not prevent the draining of excess water through the point ‘X’.“

Draining water through Natural Drain  is a Natural Right.

The Supreme Court, in Patneedi Rudrayya v Velugubantla Venkayya, AIR 1961 SC 1821, considered the right of owner of upper land to pass flood water on to lower land based upon Section 7 Illustration (i) of the act, and it was held as under:

• “Where a right is based upon the Illustration (i) to section 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and forbes on Waters and Land Drainage, 6th ed, P. 191, and a passage from the judgment in Nield v London and North western Railway, (1874) 10 Ex 4, in support of its conclusions. In the passage in Coulson and Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbour’s property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendant’s land and so the passage does not support the conclusion of the High court. The decision in Nield’s case, (1874) 10 Ex 4 is further based on the common enemy” doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance:
  • “where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course. “
• Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.”

Inferior Tenement Is Obliged To Receive The Water Which Falls From The Superior

In Gibbons v. Lenfestey, AIR 1915 PC 165, the Privy Council held as follows:

• “Where two contiguous fields one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water which falls from the superior. If the water, which would otherwise fall from the higher grounds insensibly without hurting the inferior tenement, should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is without the positive constitution of any servitude, bound to receive that body of water on his property.” (Quoted in: Veniram v. Karam Singh, ILR 1993 MP 179; Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450)

Full Bench of Madras High Court in Sheik Hussain Sahab v. Pachipulusu Subbavya, AIR 1926 Mad. 449, the Privy Council Judgment observed that the lower heritor cannot object so long as the flow whether above or below ground is due to gravitation or unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini. (referred to in: Veniram v. Karam Singh, ILR 1993 MP 179)

In Kaosal Mohan Pawar v. Kodu Dajiba Pawar, AIR 1946 Nag. 75, Bose, J. observed as under:

• “The rightful possessors of land on a higher level than the defendant’s with a natural drainage in that direction have the right to discharge the surplus rain water which falls on their land on to the defendant’s land, and the defendant is bound to accept this water. He cannot raise artificial barriers on his land which will cause the water to accumulate on another’s property. He cannot do this even if it is necessary to protect his own property.” (quoted in: Veniram v. Karam Singh, ILR 1993 MP 179)

In Veniram v. Karam Singh, ILR 1993 MP 179, it was observed that there should be no doubt that owner of a higher adjacent field has a right to uninterrupted flow of water to the lower field.

In C. Venkatareddi v. Kotireddi, it was held by the Andhra High Court that right of owner of a high land to drain off the natural surface water to the adjacent lower lands is incidental to the ownership of the land. In Seshayya V. Seetayya, referring to Section 7 of the Act held that rights of every owner of upper land that water naturally raising in, or falling on the said land shall be allowed by the owner of the adjacent lower land to run naturally thereof, but excess water from the land cannot be allowed to flow into the land of defendants, since it is not surface water or natural water. (Both decisions were referred to in: Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450)

Natural Right Even if Not Pleaded by Plaintiffs, Being Proved can be Granted

Madras High Court held in Samiappa Gounder v. Subbanna Gounder, 2017-4 LW 341 as to pleading of natural right as under:

• “13. It is found from the judgment of the trial Court that though the Court has found that there is natural right inured upon the plaintiffs to drain the water collected, naturally, since, they have pleaded their right to drain water based on the right of easement and since, they have failed to prove the fact that the time immemorial, they have been draining the water through “Vadikal Kavuru” as pleaded in the plaint, it has declined to grant the relief sought.”

After referring decision of the Supreme Court in Patneedi Rudrayya v. Velugubantla Venkayya, AIR 1961 SC 1821, the Madras High Court continued as under:

• “18. Under such circumstances, while dismissing the Second Appeal, on the ground the substantial questions of law raised are not in favour of the plaintiffs, and no easementary right by prescription proved by the plaintiffs, the natural right though not pleaded by the plaintiffs, being proved, to preserve the natural right of draining the excess water collected by natural course of event, it is necessary to point out that the survient land holder cannot block the flow of naturally collected water getting drained through point ‘X’ to the canal marked as ‘AB’.”

Natural Right – No Need to Pray for a Declaration

The Madras High Court (Madurai Bench) in  Gowri Bai v. Elizabath, (2011) 2 CTC 266, observed as under:

• “17. Therefore, from the passages from the Book of Easements and License by Katiyar and also as per the judgments of our Court, it has been made clear that the water on a higher ground must by operation of the force of gravity flow on to the lower ground and if the owner of the lower ground raised an obstruction to the natural flow of water, he can be restrained if it causes damage to the owner of the land on the high level. No doubt, in the judgment reported in Saraswathi v. S. Ganapathy, 2001 (4) SCC 694, the Hon’ble Supreme Court has held that when two properties were owned by a single person and subsequently he sold those two properties to different persons, no easementary rights regarding the drainage of water could have been acquired by one owner and the person cannot claim any right over the land of another by contending that previously the owner was allowing the rain water to drain from the roof on the other property and therefor, he also entitled to have the same facility after his purchase.
• 20. Though the plaintiff could have applied for the relief of declaration in a Suit for injunction, the Court is entitled to give the findings regarding the rights of the parties and as a matter of right, injunction can be granted only when the Court gives the finding that the Plaintiff’s are entitled to prevent the Defendants from causing any obstruction or damages to the Plaintiffs property. Therefore, in a Suit for injunction, the Court has no necessarily give a finding regarding the right of the Plaintiffs. Therefore, it cannot be considered that without the prayer for declaration, the suit for bare injunction is not maintainable. As stated supra, the Plaintiffs are entitled to take the water which flows naturally from the western tank street through the Defendants property and when the Plaintiffs are entitled to allow the natural water to flow through the Defendants’ property, they are entitled to the relief of injunction, and there is no need to pray for a declaration that they are entitled to take the water from the Defendant’s property. Hence, the Suit is not bad for not praying for the relief of declaration and the third substantial question of law is also answered in favour of the Appellants.” (quoted in: C. Mani v. P. R. Sadhasivam, 2017-2 MLJ 271)

No Natural Right to flow water from the roof to the land of his neighbour

The Supreme Court, in Saraswathi v. S. Ganapathy, 2001-4 SCC 694, observed as under:

• “19. …..As the 1st respondent had purchased the property he was entitled to construct on his own property. Mr. Sivasubramaniam seriously submitted that the 1st respondent was bound to allow water from the roof of the triangular room to flow on to the land of the 1st respondent as it had always done in the past. Mr. Sivasubramaniam seriously contended that the 1st respondent could not construct on his own land in a manner which would prevent the flow of such water into the 1st respondent’s land. In our view, this argument merely needs to be stated to be rejected. No person can have a right to have water from his property flow on to the land of his neighbour. No such right was granted under the sale deed. No such easementary right can be claimed in law. All that the appellants can claim is to see that water from the roof of his house is allowed to flow on to his own land.” (quoted in: C. Mani v. P. R. Sadhasivam, 2017-2 MLJ 271)

Drain Off Natural Water Is Incidental to the Ownership

The Bombay High Court in Sitaram Motiram v. Keshav Rachandra, AIR 1947 Bom 4, the Hon’ble dealt in detail the easement right of the dominant land owner vis-a-vis the right of the survient land owner in respect of discharging excess water. The Bombay High Court observed as under:

• “9. … there is a natural right of drainage from higher lands to lower lands of water flowing in the usual course of nature in undefined channels. This principle is embodied in illust. (I) to S. 7, Easements Act, which says that every owner of upper land has a right that water naturally falling on such l and shall be allowed by the owner of the adjacent lower land to run naturally thereto. This right is incidental to the enjoyment of property and partakes of all the characteristics of an easement, but is really a part of the total content of the proprietary rights. This natural right exists ab initio and does not depend for its creation on prescription, grant or custom, but is inherent in the geographical configuration of the property. As this right is strictly not an easement as defined in the Indian Easements Act, S.23 of that Act does not come into play. Under that section the dominant owner may from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose additional burden on the servient heritage. If S.23, Easements Act, could have been applied to the present case, the matter could have been easily disposed of, for it is obvious that the method of enjoyment of the right of the owner of the upper land to discharge water on the adjacent lower land could be altered only so far as it does not impose additional burden on the servient tenement. In the present instance the defendant could have altered the method of discharging his surface water on to the plaintiff’s land in any manner he pleased provided that he did not cast additional burden on the plaintiff’s servient tenement. As in point of fact additional burden has been cast, the defendant could be held to have contravened the provisions of S.23, Easements Act.” (quoted in: C. Mani v. P. R. Sadhasivam, 2017-2 MLJ 271)

In Nadupuri Narayana v. Ijjada Narayana, AIR 2002 AP 387it is held as under:

• “( 11 ) THE right of every owner of upper land that water naturally rising in, and not passing in defined channels is recognized by law as restricted easement. The right of every owner of the land to the natural flow of water by natural stream without interruption and without material alterations is also recognized. The right, however of an owner to claim a share in the water in a well constructed in a separate and distinct land is not recognized in law. Indeed Section 8 of the Transfer of Property act, 1882 lays down the effect of transfer of property. According to this Section, the transfer of property passes forthwith to the transferee all the interests, which the transferor is capable of passing in the property and the legal incidents thereof.”

To Drain water through Artificial Channels, Perfection of Easement Required

Commentaries on Easement by Peacock says:

• “Every land owner has a natural right to deal with his surface drainage-water has he pleases. He can either let it find its way to his neighbour’s land if that is at a lower level than his own, or he can collect it or use it as he pleases on his own land, subject always to the reservation that if he allows it flow for the prescriptive period through defined and permanent artificial channels on to his neighbour’s land, his neighbour may acquire a right to its continuance, and, conversely the enjoyments of an out let for his surplus water for over a period of twenty years through defined artificial channels, may give him a right to the continuance of the outlet.” (quoted in Sitaram Motiram v. Keshav Rachandra, AIR 1947 Bom 4)

No easement right can be acquired to surface water not flowing in a stream

Section 17(c) of the Easements Act lays down that no easement right can be acquired to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise. Sec. 17 reads as under:

• 17. Rights which cannot be acquired by prescription:
• Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired
• (a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;
• (b) a right to the free passage of light or air to an open space of ground;
• (c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;
• (d) a right to underground water not passing in a defined channel.

Illustration G to Section 7(b) also speaks of the right of every owner of land to collect and dispose within his own limits, of all water under land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.

In Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450, it is held as under:

• “30. Section 17(c) of the Act does not prohibit the acquisition of easementary right regarding the trickling water from higher to lower plots in well defined channel as held by the Privy Counsel in Baswantappa v. Bhimappa. It is also clear from Section 17 (c) of the Act that such right to discharge excess water or collected rain water to the land of lower owner only for the purpose of discharging surface water and not any other water. But here the plaintiffs wanted to discharge or let out excess or collected rain water from their land, who is upper land owner to the land of the defendant, who is lower land owner without any defined channel or stream.”

The High Court (Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450) pointed out – in Dharnidhar Sahu v Bhagirathi Sahu, AIR 1956 Ori 89, referring Section 17(c) of the Act, it was observed the following –

• “Two principles thus emerge: firstly that an owner of land is entitled to collect and impound all surface water passing over his land and secondly, that no prescriptive right can be acquired in respect of such water against the servient owner. In other words, unless the water flows through a defined channel no right can be acquired either by lost grant or prescription to the use of such water.”

The High Court (Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450) after quoting Dharnidhar Sahu v Bhagirathi Sahu, 1956 AIR Ori 89, continued as under:

• “22. The main feature of surface water is its inability to maintain its identity and existence as a water body. Water flowing into a field from a known channel and passing along the field onwards into another field though not over a confined track in the former field but along its whole area is not surface water as held by this court in Venkataramanaiah v. Subbaramayya following the principles laid down by the Madras High Court in a judgment reported in Adinarayana v. Ramudu.
• 23. In Adinarayana referred to supra, the Madras High Court had an occasion to decide similar question and held that the chief characteristics of surface water is its inability to maintain and existence of water body.
• 24. Merely because water spreads itself over the upper field before it gets into the lower field, it does not fulfill the definition of surface water. If it flows in a well defined course into an upper land spreads itself over the whole field which is irrigated by it and then over the field ridge to another field or into an intermediate channel through which it comes into another field, it can be treated as surface water as held by this Court in Venkataramaiah referred to supra.
• 25. Here, the plaintiffs claimed both natural right of discharging rain water and excess water to the field D as shown in the plan from field P. Such right is natural right and question of claiming easement by prescription does not arise, it is natural servitude. The other right is to discharge or let out excess water, such right cannot be acquired by prescription.
• 26. In the present case, the excess or collected rain water is to be let or discharge into the field of the defendant, as the collected water from the field of deitys land is flowing into the land of the plaintiffs, but not in a definite course of channel or a stream. In such case, the question of easement by prescription as contemplated under Section 15 does not arise in view of bar under Section 17 (c) of the Act, since the acquisition of such right i.e letting out or discharge of excess water into the land of lower owner is impermissible, except by natural servitude of discharge natural surface water, but not collected water.”

In Narsoo Bhandari v. Madan Lal Tulsiram, ILR 1975 MP 843, after analysing law on the subject, it is held as under:

• “(54) A survey of the case law shows that rain water coming from upper lands to lower lands according to topographical features of the lands is surface water and it maintains that character until it begins to flow in a defined channel. Till then it cannot be said to flow in a stream and is not subject to any right of easement. To the same effect is the following statement by Peacock:
• “it is settled Law both in India and England that water must flow in a defined channel whether natural or artificial, to become the subject of an easement by prescription. “
• The Law relating to easements in British India, 2nd edition, p. 118] surface water may also become subject of an easement when it gets permanently collected in a pool or tank. Section 17 (c) of the Easements Act specifically enacts that “a right to surface water not flowing in a stream, and not permanently collected in a pool, tank or otherwise” cannot be acquired by prescription. The word “stream” in this section has been used in a technical sense, as explained above, meaning water flowing in a defined channel whether natural or artificial and not in a generic sense of mere flow of water. Surface water before it enters a defined channel remains the property of the owner of the land over which it flows and he can deal with it in any manner he likes. The owner of the land over which the surface water flows may collect the water by construing a tank and the water so collected will still remain the property of the owner of the land but it may then become subject of an easement by prescription. But, as already stated, until the surface water enters a defined channel or gets collected in pool or tank no easement by prescription can be acquired in it.”