Holding

The High Court was correct in finding only a minimal encroachment and that no easement rights for water drainage or light and air existed, so the appeal is dismissed.

Summary

The original owner sold two adjoining parcels to the appellants and the first respondent, each deed describing a specific area and granting a right of ingress and egress over an open passage. The first respondent later executed a Release Deed relinquishing all rights except passage, but subsequently erected structures and unilaterally cancelled the Release Deed, prompting the appellants to sue for declaration of encroachment and for easement rights of light, air, and water drainage. The trial court and the first appellate court, relying on a commissioner’s report, held that the first respondent had encroached a large area (338 sq ft) and that the appellants were entitled to injunctions, but the High Court on second appeal re‑examined the evidence and concluded that the sale deed description was inaccurate, the actual encroachment was only about 21 sq ft, and no easement rights for water or light existed. The Supreme Court affirmed the High Court’s findings, holding that the lower courts erred in treating the sale‑deed area as correct and in granting easement rights, and dismissed the appeal. Consequently, the appellants’ claim to possession beyond their purchased parcel was rejected and the injunctions against the first respondent were upheld.

Issues considered

Whether the area stated in the sale deed can be taken as correct and any shortfall in the appellants' possession constitutes encroachment by the first respondent.
Whether the appellants are entitled to an easement right for water drainage from their property onto the first respondent's land.
Whether the appellants have an easement right to light and air over the first respondent's property.
Whether the lower courts erred in finding a large encroachment (338 sq ft) despite inaccurate sale‑deed measurements.

Legislation cited

Subjects

encroachmenteasementright of lightright of airwater drainagesale deedrelease deedproperty measurementcivil appealcommissioner reportinjunction

Judgment

A SARASWATHI AND ANR.
v.
S. GANAPATHY AND ANR.

APRIL 4, 2001

B [V.N. KHARE AND S.N. VARIAVA, JJ.]

Code of Civil Procedure, 1908 :

Section JOO-Second appeal-Owner sold one of his properties to a
purchaser-Sale deed mentioned a certain area-Subsequently, owner sold his
c adjoining property to a second purchaser-Sale deed again mentioned acer-
tain area-Both sale deeds mentioned that the parties had right of ingress and
egress aver an open passage on the west side of the property sold to the second
purchaser-Second purchaser executed a Release Deed relinquishing all his
rights except a right of passage in the open space-Second purchaser put up
D some additional constructions on the property and unilaterally cancelled the
Release Deed-First purchaser filed suit for declaration that the second pur-
chaser had encmached upon his land and also claimed easement rights of light
and air-Trial court held that the second purchaser could only claim such
rights as were reserved under the Release Deed-Trial court also held that the
first purchaser was entitled to recover a certain area encroached upon by the
E second purchased-First purchaser was also granted pennanent injunction
restraining the second pu•chaser from blocking the drainage and against
stoppage of light and air-Appellate Court remanded the matter back to the
trial court to-detennine the question ofencroachment by appointing a Commis-
sioner-Trial court, after considering the Commissioner's report, held that
F there was a larger area of encroachment and that thei~ was blockage of rain
water outlet and obstruction oflight-First appeal dismissed on the ground that
the area mentioned in the first purchaser's sale deed was to be taken as correct
and if the first purchaser was found to be in actual occupation of a lesser area
then the same to be treated as encroached upon by the second purr:haser-High
Court allowed the second appeal-Correctness of-Held: From the Commis-
G
sioner's report it is clear that the first purchaser is actually encroaching upon
a large area of the second purchaser-First purchaser is, therefore, in posses-
sion ofmore area than what was purchased by him-Hence, High Court rightly
allowed the second appeal.

Easement:
H
988
SARASWATIIT v. S. GANAPATHY 989
Easements Act, 1882 : A
Light and air-Easement rights of-Owner sold one of his properties to
a purr:haser-Sale deed mentioned a certain area-Subsequently, owner sold
his adjoining property to a second purr:haser-Sale deed again mentioned a
cei1ain area-Both sale deeds mentioned that the pmties had right of ingress
and egress over an open passage on the west side of the property sold to the B
second purr:haser-Second purr:haser executed a Release Deed relinquishing
all his rights except a right ofpassage in the open space-Second purchaser put
up some additional constructions on the property and unilaterally cancelled the
Release Deed-First purchaser filed suit for declaration that the second pur-
chaser had enc1vached upon his land and also claimed easement rights of light c
and air-Trial court held that the second purchaser could only claim such
rights as wei~ reserved under the Release Deed-First appeal dismissed-High
Coult allowed the second appeal-Validity of-Held : Both the properties
i initially were held by the original owner-Therefore, water flowed into open
space belonging to him-In such a case there is no question of any easement
rights-No person has the right to have water ftvm his propelty flow onto land D
of his neighbour-No such right granted under sale deed-Hence, High Court
rightly allowed second appeal.

The 2nd respondent sold one of his properties to the appellants. The
sale deed mentioned a certain area. Subsequently, the 2nd respondent sold
E
his adjoining property to the 1st respondent. The sale deed again men-
tioned the property to be of a certain area. Both the sale deeds mentioned
that the parties had the right of ingress and egress over an open passage on
the west side of the property sold to the 1st respondent. However, the 1st
respondent executed a Release Deed relinquishing all his rights except a
right or passage in the open space. F

The 1st respondent after purchasing the property put up some addi-
tional constructions on the property and unilaterally cancelled the Release
Deed. The appellants filed a suit for declaration that the 1st respondent
had encroached upon the land belonging to the appellants and also claimed
G
easement rights of light and air.

The trial court held.that the 1st respondent could only claim such
rights as were reserved under the Release Deed. The trial court further
held that the appellants were entitled to recover a certain area encroached
upon by the 1st respondent. The appellants were also granted permanent H
990 SUPREME COURT REPORTS [2001] 2 S.C.R.
A injunction restraining the !st respondent from blocking the drainage and
---
against stoppage of light and air. -"
The appellate court remanded the matter back to the trial court to
determine the question of encroachment by appointing a Commissioner.
The trial court, after considering the Coml!lissioner's report, held that
B there was a larger area of encroachment and that there was blockage of
rainwater outer and obstruction of light.
,,._
The first appeal filed by the 1st respondent was dismissed on the
ground that the area mentioned in the appellants' sale deed was to he
c taken as correct and if the appellants were found to be in actual occupation
of a lesser area then the same was to he treated as having been encroached
upon by the !st respondent. The High Court allowed the second appeal.
Hence this appeal.

Dismissing the appeal, the Court
D
HELD : 1.1. The Commissioner, in his Report, stated that the de-
scription of the property given in the Sale Deed of the appellants is not
accurate. Thus, it is seen that it is the appellants who are encroaching upon
a large area of the property sold to the 1st respondent. The 1st respondent
E has excess area to a small extent in the property sold to the appellants. The ~
Commissioner has also found that the !st respondent has land to a small
extent over and above what he had purchased under his Sale Deed Both
the trial court and the !st Appellate Court had this factual position before -
them. One fails to understand the logic by which both these courts con-
duded that the encroachment was to a certain extent of area. Both these
F
courts ignored the fact that the encroachment to a certain extent could
only be there provided the measurements and description given in the Sale
1-- '
Deed of the appellants were correct. The measurements and the descrip-
tion are entirely incorrect. The factual position was that the appellants,
who had only purchased one portion of the property, were in possession
G not only of that entire property (less a small area) but was in possession
(without any right) of a certain area in the property which was purchased
by the 1st respondent. T\1e appellants having only purchased one portion
of the property are not enti't1ed to more than a certain area. The appellants
arc now in possession of more than what was purchased by them. The
H appellants were seeking to claim possession of property, which they have
SARASWATHI v. S. GANAPATHY [S.N. VARIAVA, l.] 991
never purchased under their Sale Deed. The High Court has rightly not A
-~
~ allowed this. [995-F; 996-D-G]

2.1. On the appellants' property abutting the 1st respondent's prop-
erty, there is a small triangular room. Waterfrom the roofof that room used
to flow into the open ground in the 1st respondent's property. Earlier, the
2nd respondent was the owner of both the properties. Therefore, water from B
the roof of a room in his possession and ownership used to flow into the open
space belonging to him. In such a case there was no question of any easement
rights. The 2nd respondent then sold his property to the appellants and the
1st respondent. The sale to both the parties is within a period of 2 months.
The appellants could have acquired no easement rights within this period of c
two months. As the 1st respondent had purchased the property he was enti-
tied to construct on his own property. [996-H; 997-A-B]

2.2. No person can have right to have water from his property flow
onto to the land of his neighbour. No•such right was granted under the
Sale Deed. No such easement right can be claimed in law. All that the D
appellants can claim is to see that water from the roof of his house is
allowed to flow on to his own land. [997-D]

2.3. So far as the question of light and air is concerned, it cannot be
denied that the concerned triangular room is only a small lumber-room. If
)... that were so, then there is no question of blockage of light and air. [998-B]
E

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4494 of 1998.

From the Judgment and Order dated 30.4.98 of the Madras High Court
in S.A. No. 78 of 1995.
F
S. Sivasubramaniam and M.A. Chinnaswamy for the Appellants.

S. Muralidhar and K.V. Venkataraman for the Respondents.

The Judgment of the Court was delivered by
G
S. N. VARIAVA, J. This Appeal is against a Judgment dated 30th April,
1998. Briefly stated the facts are as follows:

The 2nd Respondent was the owner of properties bearing Survey No.
-<' 7/232 (New) as well as Survey No. 7/229 (New). On 27th February, 1973
the 2nd Respondent sold Survey No. 7/232 (New) to the Appellants. The Sale H
992 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Deed mentioned the area to be 3341 sq. ft. and also gave certain descriptions
of the said property.

On 30th April, 1973 the 2nd Respondent sold Survey No. 71229 (New)
to the !st Respondent. This Sale Deed mentioned that the said property was
of an area of 512 Sq. ft. and also gave measurements of the property.
B
The sale deeds of both the parties mentioned that they had right of
ingress and aggress over an open passage which was to the West of the
property sold to the !st Respondent. On 30th October, 1974 the !st Respond-
ent executed a Release Deed relinquishing all his rights except a right of
passage in the open space.
c
The 1st Respondent after purchasing the property put up some addi-
tional constructions on the property. 111e Appellants sent a notice dated 22nd
November, 1974 calling upon the !st Respondent to remove the construction
put up by him. On receipt of this notice the !st Respondent unilaterally
D cancelled the Release Deed dated 30th October, 1974.

The !st Respondent then filed Suit No. 183175 for a permanent
injunction against the Appellants for preventing him from using the open
space. An interim injunction was granted in that suit.

E On 29th March, 1975 the Appellants filed Suit No. 512 of 1975 for
declaration that the !st Respondent had encroached upon the land belonging
to the Appellants and praying for possession of the same. The Appellants also
claimed easementary rights of light and air and an easementary right to have
water from the roof of his house flow into !st Respondent's property. The
Appellants thus prayed for a permanent injunction restraining the 1st
F Respondent from closing the drainage outlet and obstructing the passage of
light and air of the AppelJants. The Appellants also claimed compensation
from 2nd Respondent for shmtfall in delivery of land, if it was found that
there was a shortfall. This claim has admittedly been given up and had not
been pressed.
G
Both the suits were tried jointly. A common Judgment dated 30th April,
1979 was delivered. In the Suit filed by the !st Respondent it was held that
the !st Respondent could only claim such rights as were reserved under the
Release Deed dated 30th October, 1974. In the Suit filed by the Appellants
it was held that the Appellants were entitled to recover 258 sq. ft. encroached
H by the 1st Respondent. The Appellants were also granted the permanent
SARASWATHI v. S. GANAPATHY [S.N. VARIAVA, J.] 993
.. injunction restraining the I st Respondent from blocking the drainage and A
"' against stoppage of light and air.

The !st Respondent preferred two Appeals bearing Nos. 190 of 79 and
191 of 79 against the common Judgment. By a Judgment dated 20th Decem-
ber, 1980 the District Judge remanded the matter back to the Trial Court to
determine the question of encroachment by appointing a Commissioner and B
to consider whether there was any easementary right. The !st Respondent
,lo; filed an Appeal against the order of remand. The Appeal was dismissed by
the Madras High Court on 6th April, 1983.

Pursuant to the directions given in the Order dated 20th December,
1980 the Trial Court appointed a Commissioner to find out encroachments.
c
The Commissioner visited the suit property several times and conducted an
elaborate enquiry. The Commissioner submitted a Report to which reference
will be made subsequently.

The trial Court again decreed the Suit on 30th July, 1993 and held that D
there was an encroachment to the extent of 338 Sq. ft. The Trial Court held
that there was blockage of rain water outlet and obstruction of light. The Trial
Court directed delivery of possession of 338 Sq. ft. and directed removal of
obstruction of drainage of water aud of light.

).. The !st Respondent filed an Appeal. The Appellate Court, inter alia, E
held as follows:

"Despite the complex questions of law and facts involved in the suit
in the judgment of the Trial Court, there is over simplification
of the whole issues and the points in dispute. The Trial Court
seems to have based its conclusion virtually on the basis of the
F
Commissioner's report and directed the removal of the illegal en-
~
croachment."

The Appellate Court then proceeds to make a large number of assumptions
and on the basis of those assumptions holds as follows: G
"26. Even though there is no strong reasons oflogic stated by the Trial
Court, the final conclusion of the Trial Court is unassailable. For the
~ reasons stated in this judgment, the conclusion of the Trial Court is
to be accepted. There is no reason warranting interference in the
judgment of the !st Additional District Munsif, Coimbatore. H
994 SUPREME COURT REPORTS [2001] 2 S.C.R.
A 27. Therefore the judgment and decree of the ht Additional District
Munsif, Coimbatore is 0. S. No. 512175 is confinned and this appeal
is dismissed with costs of RI and R2/plaintiffs. There is no order
regarding the cost of D-1."

At this stage it must be noted that the Appellate Court proceeded, amongst
B others, on the assumption that the area mentioned in Appellants' Sale Deed
was to be taken as correct and if the Appellants were found to be in actual
occupation of a lessor area then the same was to be treated as having been
encroached upon by I st Respondent.

The !st Respondent then filed a Second Appeal. In the Second Appeal
c the following substantial question of law was raised:

"Whether the view taken by the Cowts below that because there is
deficiency in the extent of the property in the enjoyment of the
plaintiffs, it should be taken as having been encroached by the seconcl
defendant is correct in law?"
D
The High Court then considered the Commissioner's Report, the Sale Deeds
of both the parties, the evidence on record and concluded that the Judgments
of the Thal Court and the !st Appellant Court could not be maintained. The
High Court held that both the Courts below had ignored documents/evidence
E and had proceeded on entirely wrong basis. The High Court held that the
encroachment, if any, could only be said to be to the extent of 21 Sq. ft. and
such encroachment paled into insignificance. 111e High Court recorded the
statement of the counsel of the I st Respondent that the I st Respondent was :
willing to ensure that there was proper drainage of rain water from the
premises of the Appellants. The High Court noted that the light and air were
F being blocked but that it was only to a small lumber room. The High Court
thus allowed the Second Appeal. Hence this Appeal.

We have heard the parties at great length. Mr. Sivasubramaniarn
submitted that the High Court has overruled the concurrent fmdings of fact
G by both the Courts below and has re-appreciated evidence. Mr.
Sivasubrarnaniarn submitted that the High Court allowed the Second Appeal
without there being any question of law, much Jess a substantial question of
Jaw.

On the other hand, Mr. Muralidhar submitted that the question of Jaw
H framed by the High Court is a substantial question of Jaw. He submitted that
SARASWATffi v. S. GANAPATHY [S.N. VARJAVA, J.] 995
in deciding this substantial question of law it was necessary for the High A
.Court to look at the documents and evidence on record.

We have seen the Judgments of the Trial Court and the 1st Appellate
Court. The 1st Appellate Court has correctly noted that the trial Court had
proceeded in a most summary fashion and had over-simplified complex of
questions of law and fact. We also find that the 1st Appellate Court had B
adopted an entire erroneous approach in law. The Appellants had, admittedly,
only purchased Survey No. 7/232 (New). They were thus entitled only to
lands which formed part of this Survey No. The 1st Appellate Court noticed
that even though the Sale Deed of the Appellants showed the extent of the
land to be 3341 Sq. ft. in actual fact Survey No. 7/232 was only of an area C
of 2481 Sq. ft. The 1st Appellate Court also notices that the description of
the property given in the Sale Deed was not accurate. After noticing these
vital aspects the 1st Appellate Court proceeds to make a number of assump-
tions which have no basis. The I st Appellate Court then concludes that if
there is any shortfall in the land occupied by the Appellants then that shortfall
must necessarily be encroachments by the !st Respondent. In counting D
shortfall the 1st Appellate Court takes it for granted that the Appellants were
entitled to 3341 sq. ft. as mentioned in the Sale Deed.

In our view, the High Court was right in coming to the conclusion that
such an approach is unsustainable in law. The question before the Courts was
whether or not there had been an encroachment by the I st Respondent into E
land purchased by the Appellants. The other question was whether there was
any easementary right in the Appellants. It is on these questions that there
had been a remand to the Trial Court. 111e Trial Court, pursuant to the remand,
had appointed a Commissioner. The Commissioner has given a detailed
Report. It is now necessary to see this Report. F
The Commissioner, in his Report, notes that the description of the
property given in the Sale Deed of the Appellants is not accurate. The
Commissioner, on actual measurements, gives a positive finding to the
following effect:
G
"9. As the memo of instructions given by the respondent warranted
me to note the actual extent of enjoyment by tile petitioners and
respondents witli respect of T.S. Numbers, t11is respondent is in
possession and enjoyment of an extent of 533 Sq. feet as follows i.e.,
98 Sq. feet in T.S. No. 7/228-PART; 423 Sq. feet in 7/219 PART; and
12 Sq. feet in 7/232 PART. The Petitioners are in possession and H
996 SUPREME COURT REPORTS (2001] 2 S.C.R.
A enjoyment of 2506 Sq. feet in T.S. 7/232 PART and an extent of 235
Sq. feet in T.S. 7/231 and an extent of 350 Sq. feet in T.S. No. 229
PART used as lane thus totally measuring an extent of 3091 Square
feet.

10. The 4th para of the memo of instructions by the respondent
B specifically directed me to note down whether the respondent is
within the limits as per Ex.A-I I found that the area of enjoyment and
possession of the respondents/defendants exceeds only to the tune of
21 Sq. ft and that is too on the northern side. The specific measure-
ments and area of enjoyment by the Respondent is shown in a separate
c diagram in the Diagrams I to 4 may be read as part and parcel of this '•

report."

Thus, it is to be seen that it is the Appellants who are encroaching upon 350
Sq. ft. in Survey No. 7/229. The I st Respondent has excess area to the extent \c
·of 12 Sq. ft. in Survey No. 7/232. The Commissioner has also found that the
D !st Respondent has land to the extent of 21 sq. ft. over and above what he
had purchased under his Sale Deed. Both the trial Court and the !st Appellate
Court had this factual position before them. One fails to understand the logic
by which botl1 these Court concluded that the encroachment was to the extent
of 338 Sq. ft. Both tl1ese Courts ignored the fact that the encroachment, to
E the extent of 338 Sq. ft., could only be there provided the measurements and . .../
description given in the Sale Deed of the Appellants were correct. As set out
above, those measurements and the description are entirely incorrect. The
factual position was that the Appellants, who had only purchased Survey No.
7/232 was in possession not only of entire Survey No. 7/232 (less 12 Sq. ft.)
but was .in possession (without any right) of 350 Sq. ft in Survey No. 7/229
F which was purchased by !st Respondent. The Appellants having only pur-
chased Survey No. 7/232 is not entitled to more than 2481 Sq. ft. The
J..
Appellants are now in possession of more than what was purchased by them.
The Appellants were seeking to claim possession of property which they had
never purchased under their Sale Deed. The High Court has rightly not
....
G allowed this.

Next comes the question of easementary right of drainage of water and
easementary right of the light and air. On the Appellants' property abutting
the !st Respondent's property, there is a small triangular room. Water
from the roof of that room used to flow into the open ground in Survey No.
H
SARASWATHI v. S. GANAPATHY [SN. VAR!AVA, J.] 997
71229. Earlier, the 2nd Respondent was the owner of both Survey No. 71232 A
as well as Survey No. 71229. Therefore, water from the roof of a room
in bis possession and ownership used to flow .into open space belonging
to him. In such a case there was no question of any easementary rights.
The !st Respondent then sold Survey No. 7/232 to the Appellants on
27th February, 1973 and Survey No. 7/229 to the !st Respondent on 30th
B
April, 1973. The sale to both the parties is within a period of 2 months. No
easementary rights could have been acquired by the Appellants within this
period of two months. As the I st Respondent bad purchased the property be
was entitled to construct on his own property. Mr. Sivasubramaniam seriously
submitted that the !st Respondent was bound to allow water from the roof
of the triangular room to flow on to the land of the !st Respondent as it bad c
always done in the past. Mr. Sivasubramaniam seriously contended that the
!st Respondent could not construct on his own land in a manner which would
prevent the flow of such water into !st 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 onto to land of his neighbour. No such
right was gmnted under the Sale Deed. No such easementary right can be
D
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. The 1st
Respondent's counsel has made a statement which has been recorded by the
High Court. That statement reads as follows:
E
).. "On 23-11-1994, my client has filed I.A. No. 206/94 against you and
obtained a temporary injunction. In which, my client was directed to
make an arrangement to drain the rain water collected on the terrace
of your small room situated on the Eastern side of my client's kitchen.
My client aggreable to bear the cost for making hole in your terrace
and put up a concealed drainage pipeline from inner room to !he outlet F
of your house itself. Through this letter, I seek your willingness for
my client's above proposal."

On the basis of this statement an Order to the following effect has already
been passed:
G
"With reference to the clearing of rain water on the roof of the
plaintiffs' property, the appellant through his counsel undertook to
' reimburse the cost to be incurred for making an arrangement as
described in tlie letter dated 30-11-1994 of the appellant through his
counsel. The respondents/plaintiffs shall be at liberty to avail of the
H
998 SUPREME COURT REPORTS [2001] 2 S.C.R.
A same and call upon the appellant to pay the expenses incurred by
disclosing the details and within four weeks from the date of receipt
of such a demand from the plaintiffs, the appellant shall pay the
amounts to the plaintiffs by a demand draft."

In our view, this is sufficient protection for the Appellants.
B
So far as the question of light and air is concerned; it caunot be denied
that the concerned triangular room is only a small lumber room. If that be
so, then there is no question of blockage of light and air.

In our view there is no infirmity in the Judgment of the High Court.
C It calls for no interference. Accordingly, the Appeal stands dismissed. There
will be no Order as to costs.

v.s.s. Appeal dismissed.

"